Arguments Against a “Statutory Second Amendment”

Early in 2021, a man with a handgun entered a grocery store in Boulder, Colorado, and killed 10 people. The shooter bought this type of gun legally, even though the city had a ban on similar weapons. Just four days before his purchase and 10 days before the shooting, a state court judge struck down the local ban, finding that a state law prohibited the city’s regulation.

Many advocates for gun regulation attribute the challenges they face to the influence of the Second Amendment. But according to one legal expert, state laws such as the one that forbade Boulder’s ordinance share a significant portion of the blame for the failure to control access to deadly weapons.

In a forthcoming article, Joseph Blocher evaluates state laws that preempt local gun regulation and concludes that they are ultimately harmful. Blocher, a professor at the Duke University School of Law, argues that these state preemption laws hinder localities’ ability to experiment with policy solutions, prevent local officials from mitigating gun proliferation and violence, and pose risks to a number of essential constitutional rights in favor of protecting gun rights alone.

Blocher contends that state preemption laws have prevented more local gun regulations than the U.S. Supreme Court has in more than 200 years, and he argues that they comprise a sort of “statutory Second Amendment.” Blocher notes two landmark Supreme Court cases that have influenced application of the Second Amendment: District of Columbia v. Heller affirmed the individual right to keep and bear arms, and McDonald v. City of Chicago held that states are bound to the Second Amendment’s demands, striking down a Chicago gun regulation in the process.

But both Court decisions leave room for local regulation, and gun rights advocates have been trying to prevent that regulation for 40 years, Blocher argues.

According to Blocher, both state preemption laws and Supreme Court gun rights litigation originate from local efforts to regulate firearm sale and possession.

For example, in 1981, The Village of Morton Grove, Illinois, passed a handgun ban that required gun owners to relinquish their guns to the suburban government. A nationwide backlash followed, ultimately resulting in the first major wave of state preemption laws.

By 1986, the National Rifle Association (NRA) had named state preemption of local gun regulation as a “top legislative priority.” Today, experts estimate that between 44 and 46 states have preempted local gun regulation to some extent.

And some states have enacted strict prohibitions. These laws, which Blocher deems “unmistakably partisan,” attach penalties to local attempts to regulate. Republican-controlled legislatures have enacted statutes that threaten local officials with fines, loss of funds, and removal from office. In Florida, for example, local leaders who impermissibly regulate firearms can face a $5,000 fine and personal liability for up to $100,000 in damages.

These laws deter local officials from even trying to address gun-related problems, according to Blocher.

Blocher observes that gun regulation preemption laws have sparked debate, and he contends that scholars debating these preemption laws should avoid binary analysis. Instead, he argues, scholars should evaluate the laws using three normative considerations: local variation and experimentation, localized harms, and a balancing of the rights at stake.

First, in considering local variation, Blocher cites a common argument made by preemption advocates: that a “patchwork” of different regulations across municipalities can increase the cost of compliance, make travel more burdensome, and subject gun owners to too much liability.

But Blocher finds these arguments insufficient to justify the breadth of preemption law in place today. He observes that, despite great local variation at the time, advocates such as the NRA had none of these complaints prior to Morton Grove’s adoption of its ordinance.

Furthermore, Blocher notes that criminal laws and even some constitutional rights vary across jurisdictions permissibly, and he observes that gun regulation has varied across jurisdictions throughout U.S. history. And he points out that the costs and benefits of gun possession are different across localities.

Second, Blocher addresses the common argument that local gun control efforts are ineffective, and he acknowledges that local regulation can be difficult to evaluate. But he contends that outside influence significantly affects the perceived effectiveness of local gun regulation. He argues that guns often easily travel from areas with weaker gun laws into cities with tighter restrictions. Blocher cites a report from Chicago, for example, which traces the majority of guns found at crime scenes in the city in one year to purchases in states with more lenient gun laws.

Blocher also argues that local policies can be beneficial, noting that guns are difficult to acquire on Chicago’s underground market. In addition, he comments that local gun regulations can serve as helpful proof of concept for other municipalities.

Finally, Blocher considers the main rhetoric that gun rights’ advocates use—namely, the argument that the Second Amendment is under attack and that local government restrictions are a step toward the full-scale prohibition of handguns.

Blocher argues, however, that courts have protected Second Amendment rights in cases like McDonald, meaning the Second Amendment has been effective in quashing many of the local ordinances that inspired state preemption laws. He suggests preemption laws unnecessarily prohibit constitutionally permissible actions that do not threaten the right at the heart of the Second Amendment.

Blocher admits that many rights are statutorily protected beyond the constitutional minimum, but he argues that state preemption of gun regulation has jeopardized other important rights, such as First Amendment rights, and the rights to safety and life. He finds that these laws disable local officials from serving their primary purpose: protecting their people.

Blocher acknowledges that the constitutional framework could change, as the Supreme Court will soon decide a case challenging a New York State regulation on firearms. But Blocher argues that, in the absence of a bold move by the Court in favor of a more robust right to carry, state preemption laws present unnecessary and significant barriers to localities’ ability to regulate in the interest of public safety, and they should be modified or repealed.