Cities, Preemption, and the Statutory Second Amendment

Abstract

Most Americans live in urban areas and a disproportionate number of gun homicide victims die in them, despite the fact that gun ownership is much less common in cities than in rural areas. The balance of gun rights and regulation is thus an issue of particular concern for cities, and it is unsurprising that most gun regulation in the United States is and has always been done at the sub-federal—and especially local—level. And yet the past few decades have seen substantial convergence between state and local gun rules. It is unlikely that the explanation for this convergence is purely “political,” since support for gun regulation remains much higher in urban areas. Cities seem to be regulating guns less stringently than their residents would like. Are there legal explanations for this gap?

The Second Amendment is the most common explanation, but its impact in litigation has in fact been relatively muted, even after the Supreme Court’s 2008 decision in District of Columbia v. Heller articulated an “individual” right to keep and bear arms for certain private purposes.

As a practical matter, nothing has done more to shape contemporary gun regulation than state preemption laws, which fully or partially eliminate cities’ ability to regulate guns at the local level.

This short Article begins by telling the story of the first wave of preemption laws, and then turns to the current and more punitive preemption movement. The second Part of the Article then provides some brief thoughts on how to evaluate the distribution of gun regulation authority between states and cities.

Keywords: Second Amendment, preemption, gun rights, gun regulation, Heller, Chicago