Forty-five states have adopted express preemption statutes curtailing or entirely prohibiting local gun regulation, and several jurisdictions now threaten localities with penalties for violating such restrictions. These measures have been remarkably effective in reducing the breadth and variety of gun laws nationwide, but their consequences have only just begun to attract attention. Public debates over guns tend to center on the Second Amendment while overlooking state-level obstacles to local lawmaking, and the scholarship on state-local preemption lacks an analysis devoted exclusively to the gun-policy space.
To fill these gaps, this Article provides a comprehensive account of the firearm preemption phenomenon. Part I argues for greater local autonomy with respect to gun rights and regulations, highlighting what is at stake when states preclude communities from responding to local problems and preferences. In Part II, the Article traces the rise of firearm preemption and offers a framework for classifying the relevant statutes. Part III examines the mechanisms through which these laws derail local gun policymaking, and Part IV evaluates strategies for restoring and expanding local authority over firearms.
Ultimately, the Article demonstrates that state preemption is the primary barrier to local gun regulation and a severe constraint on opportunities for addressing many firearm-related challenges. Absent a concerted effort to scale back firearm preemption provisions, local governments will remain incapable of realizing their potential as sites for effective gun lawmaking. These conclusions yield new insights for both the firearms-law literature specifically and the ongoing dialogue around state-local relations more broadly.
Introduction
In the weeks after a mass shooting claimed seventeen lives at a high school in Parkland, Florida, intensifying frustration with state and federal inaction on gun reform prompted concerned citizens to press demands for change at the local level.1 Leaders in Coral Gables were among the first to heed this call, unveiling in February 2018 what would have become Florida’s “first citywide ban on [military-style] assault rifles.”2 The city’s mayor expressed high hopes for the measure, which he described as an integral “domino in the process of improving . . . safety” statewide.3
Just one month later, city officials announced that they had no choice but to abandon their plan.4 The municipality could not risk defying section 790.33 of Florida’s state code, a provision proclaiming the legislature’s intent to “occupy[] the whole field of regulation of firearms . . . to the exclusion of all” local measures.5 This preemption statute not only deems all local gun policies “null and void,” but also threatens local governments and officials with serious penalties—including removal from office, hefty personal fines, and massive municipal liabilities—for violating the state’s restriction.6 Coral Gables policymakers quickly realized that these sanctions were “too severe to ignore,” and dismayed local leaders dropped their proposal to avoid “millions of dollars” in potential costs.7 The city now ranks among the many Florida localities that have considered acting on recent calls for more stringent gun regulation, only to back down when faced with the consequences of the state’s firearm preemption law.8
State-local preemption, or the notion that state law supersedes any inconsistent local measure, is certainly nothing new. In a traditional preemption dispute, a court is tasked with determining whether “a new local law conflict[s] with preexisting state law,”9 and that conflict may be either “express” or “implied.” Express preemption is relatively straightforward: state laws that explicitly bar localities from enacting certain regulations will prevail over contrary local policies.10 The implied preemption analysis tends to vary more from one jurisdiction to another, but the inquiry usually boils down to whether or not a particular state statute evinces an implicit legislative intent to displace local law.11 Whether “express” or “implied,” a judicially identified conflict between a state law and a local regulation renders the latter void and unenforceable.
This traditional form of preemption has long played an essential role in structuring the state-local relationship. Classic preemption disputes routinely “determine[] the degree to which state policies [can] coexist with local additions or variations,” thereby “harmoniz[ing] the efforts of different levels of government in areas [where] both enjoy regulatory authority.”12 Preemption can also be useful in mitigating the potential costs of localism: for example, states can override certain local laws to ensure that specific policies are administered uniformly or to rein in local actions with negative extraterritorial effects.13
In the past few decades, however, increasing state hostility toward localities has spawned an “explosion” of express preemption statutes that stifle regulation across a “wide range of policy areas.”14 Several scholars have offered detailed evaluations of this trend, documenting aggressive state efforts to preempt local policies on paid sick leave, climate change, living wage ordinances, employment discrimination, food establishments, and smoking, to name a few.15 These sweeping preemption statutes often “displace local action without replacing it with substantive state requirements,” making clear that such laws are aimed “not at coordinating state and local regulation but at preventing any regulation at all.”16
Even more troubling is the recent emergence of statutory provisions that impose harsh consequences on local governments for adopting prohibited regulations, a phenomenon described interchangeably as “punitive preemption” or “hyper preemption.”17 In a growing number of states, localities with potentially preempted laws not only face the prospect that those rules will be invalidated, but also risk inviting civil liability, financial sanctions, removal from office, or criminal penalties.18 These punitive measures, which significantly raise the stakes of violating a preemption statute, are designed to deter regulatory efforts among local officials who might otherwise be inclined to test the bounds of their authority.
No policy issue better exemplifies these trends than firearm regulation, which has proven to be the most popular target of express state-local preemption. The Florida statute described above is illustrative. Aggressive firearm preemption measures first surfaced in the early 1980s, when legislators in Florida and many other states encountered mounting interest-group pressure to block local gun rules. Forty-five states have since adopted express preemption statutes that curtail or entirely eliminate local capacity to pursue firearm policies beyond those in place under state and federal law.19 Florida also counts itself among the class of states that have taken these restrictions even further, embracing punitive provisions that threaten localities with sanctions for firearm preemption violations. These patterns mark a sharp departure from tradition, as “local autonomy with regard to gun regulation was the norm throughout most of American history.”20
Though firearm preemption is widespread, its consequences have only just begun to attract public attention. Political debates over gun rights and restrictions tend to center instead on the Second Amendment, resulting in a constitutionally oriented popular discourse that overlooks legislative barriers to gun regulation. Further, while many scholars have evaluated recent trends in state-local preemption generally, few have focused exclusively on the firearm space. Accordingly, the discussion below provides a descriptive account of the firearm preemption phenomenon, tracing the history, contours, and effects of a statutory landscape that currently amounts to the most severe legal constraint on local gun policy.
This Article also makes the case for dismantling—or at the very least, dramatically scaling back—broad firearm preemption measures, a shift that would leave localities with the flexibility to supplement whatever regulatory floor exists under state and federal law. The result would be a distribution of state-local power that allows for more effective, creative, and responsive firearm lawmaking. Local governments would be free to craft and test policies that reflect community preferences and that target distinct gun-related problems within their borders. Relatedly, in states where political deadlock often stymies progress on firearm issues, local regulatory authority could supply a mechanism for meaningful compromise: localities with high rates of gun violence and significant demand for stricter laws could take action to meet those needs, relieving pressure on state legislatures where rural and conservative interests exercise disproportionate influence. In short, local governments can play a vital role in developing a firearm regulatory regime that is both comprehensive and politically sustainable, one that works to reduce gun violence substantially while accommodating diverse firearm-related attitudes. But absent a concerted effort to roll back firearm preemption provisions, local governments will remain incapable of realizing this potential.
Some caveats and qualifications must be addressed up front. First, this analysis proceeds on the assumption that reasonable local gun laws are compatible with contemporary Second Amendment jurisprudence, as scholars have demonstrated elsewhere.21 The arguments here should not be taken to suggest that greater local autonomy over firearms would “exempt” localities from constitutional requirements.22 Indeed, broad state preemption provisions—often framed as essential safeguards against the infringement of constitutional rights—tend to obliterate more local power than is actually necessary to protect Second Amendment interests. The takeaway, then, is that rolling back state preemption provisions would allow local governments to tailor and implement additional gun regulations in a manner that is consistent with, not violative of, Second Amendment precedent.
Second, in stressing the value of local gun policy, this Article in no way seeks to diminish the role that state and federal lawmaking must play in crafting a comprehensive firearm regulatory scheme. Nor does the Article contend that all firearm laws can or should be administered at the local level. As with any other general policy area, certain issues in the firearm space will be more susceptible to local regulation than others. For example, while localities are well positioned to adopt and enforce public-carry rules that reflect community norms and public safety needs, other matters—such as firearm manufacturing, background checks, or illicit arms trafficking—are better addressed at higher levels of government. For this Article’s purposes, though, the fundamental point is that local governments are uniquely situated to implement targeted solutions for a range of gun-related problems—a function that is all the more critical when sensible proposals for state and federal reform, many of which enjoy broad popular support, are so easily thwarted.
Third, the intent here is not to cast preemption itself as a categorical evil. If applied with precision and care, preemption might serve as a valuable tool in calibrating a firearm scheme that strikes an appropriate balance between state and local regulatory power. States could, for example, narrowly supplant certain local laws with their own gun regulations to advance interests in uniformity and administrative efficiency, while still leaving localities with substantial latitude to adopt firearm-related rules. But in most states, the purpose of statutory firearm preemption was never to finetune a policy framework that more effectively synchronizes state and local regulation. Instead, many legislatures have wielded preemption as a bludgeon, wiping out local control over huge swaths of firearm lawmaking. The goal often was, and remains, deregulatory: localities are frequently preempted in gun-related policy areas where the state itself has not enacted any substantive measures. In short, the problem is not necessarily preemption per se, but rather, the aggressive and deliberate use of that power to suppress local action. While the exact costs of expansive firearm preemption legislation cannot be quantified, considerable anecdotal evidence suggests that many localities would have implemented more robust regulatory regimes absent these laws.
That said, this Article does not intend to understate the prevalence of local gun rules in the current regulatory landscape: local ordinances that have not been preempted still comprise a majority of all firearm laws on the books nationwide.23 But rather than undermine the general critique of firearm preemption, this datapoint simply reinforces the notion that localities can serve as crucial sites for shaping and implementing gun policy—at least when state legislatures give them the leeway to do so.
The remainder of this Article is organized as follows: Part I explores the virtues of greater local flexibility in the firearm context, highlighting exactly what is at stake when states prevent localities from responding to local gun-related needs and preferences. These restrictions on local lawmaking are examined in Part II, which traces the rise of firearm preemption measures and offers what appears to be the first detailed framework for classifying such laws. Part III then turns to concrete examples of state-local clashes over gun regulation to illustrate the mechanisms through which preemption statutes derail and deter firearm policymaking in practice. The path forward is explored in Part IV, where the Article highlights key considerations for audiences interested in scaling back firearm preemption. After demonstrating the limited utility of legal challenges to state preemption measures, this Part identifies a range of political possibilities for chipping away at limitations on local gun laws. The Article ultimately ends with a call to action, urging greater mobilization around the issue of preemption to create space for local progress on firearm rights and regulations.
II. The Case for Greater Local Autonomy in Firearm Regulation
The implications of state firearm preemption cannot be fully appreciated without first recognizing the benefits to be derived from local action on certain gun issues. Those benefits are the subject of this Part, which first summarizes the legal principles governing local power and then examines the salience of common arguments for localism within the firearms context. The discussion demonstrates the value in permitting localities to supplement state and federal law with their own firearm policies, a lesson that underscores the opportunities lost when legislatures aggressively preempt local gun laws.
A. An Overview: The Legal Status of Local Governments
A brief overview of basic principles governing the legal status of localities provides necessary context for evaluating the arguments in favor of local control over firearms. In the federal system, local governments were traditionally viewed as “convenient agencies” or “political subdivisions” of the state without any inherent power to act.24 That understanding has animated a longstanding principle known as “Dillon’s Rule,” or the default assumption that localities cannot exercise any powers beyond those conferred via specific grants of authority from the state.25 Local governments operating under this regime were empowered to act only on a “narrow range of subjects” and enjoyed minimal “opportunities . . . to engage in substantive policymaking.”26 Few local actions raised preemption questions under a Dillon’s Rule system, as “state and local regulation rarely overlapped.”27
Beginning in the late nineteenth century, growing dissatisfaction with local powerlessness prompted a “pro-democratic effort to increase local autonomy.”28 The product of that movement was the widespread embrace of “home rule,” or a “commitment to local lawmaking capacity codified in the constitutions and statutes of the vast majority of states.”29 All but three states have enacted some sort of home rule provision: forty-one states have authorized home rule through constitutional amendments, and an additional six have done so via statute.30
While the contours of these provisions differ from state to state, their common purpose was to grant local governments a significant degree of autonomy over their own affairs.31 Home rule has “vastly expanded the areas in which [localities can] govern,”32 allowing local governments to take action on various issues without specific authorization from the state. This broadening of local power, however, increased “the potential for much greater overlap between state and local legislation,” resulting in more frequent clashes over competing laws that touch on the same regulatory space.33 Typically, these conflicts have been resolved through a traditional preemption inquiry, in which a court determines whether or not state law displaces the local regulation at issue. Preemption has thus served as the “primary battleground for determining the parameters of local authority in modern home-rule regimes.”34
The “steady expansion” of home rule since the late nineteenth century “demonstrates the widespread popularity of local autonomy.”35 The following Section examines the normative justifications for such autonomy, focusing specifically on their relevance to firearm policy.
B. Making the Case for Local Power to Regulate Firearms
The legal principles outlined above provide the backdrop for recurring debates over the virtues and vices of localism. Though these disputes often take on a partisan valence, scholars have identified a number of normative and institutional arguments that justify local autonomy for its own sake.36 Local empowerment, for example, provides citizens with “opportunities for participation in public decision making . . . that are simply unavailable” at the state or federal level.37 Greater autonomy fosters a sense of “community” and cohesion, for it allows residents to “engage in self-government” based on “shared concerns and values.”38 Proponents of localism also point to its utility as a “form of decentralization”: local governments can “take into account varying local needs” and “tailor public services and regulation to their particular communities.”39 Relatedly, localities “provide thousands of arenas for innovation,”40 where local officials can lead the way in testing and refining new policies.41 Professor Richard Briffault offers a succinct distillation of these arguments, describing “grass-roots participation, intergovernmental competition, political responsiveness, subnational diversity, and innovation” as the “values regularly associated with local autonomy.”42
Briffault, however, would be the first to acknowledge that local power is not always wielded for desirable ends.43 Local governments might pursue agendas that “interfere with state regulatory programs” or undermine “legitimate state interests in uniformity.”44 Broad local autonomy, many critics add, results in a hodgepodge of regulations and the concomitant uncertainty for parties striving to comply across multiple jurisdictions.45 Localism may also morph into parochialism, as communities often exercise their power in ways that encourage isolation, exclude outsiders, and produce negative externalities for those beyond their borders.46 The lesson, then, is that the state-local relationship is at its best when it strikes a proper balance between statewide policymaking and local control.47 That balance need not look the same across all policy areas. States can afford broad local power in some spheres while constraining it in others, depending on the benefits and drawbacks of localized approaches to discrete substantive issues.
Applying that logic in the context of firearms, states would do well to leave local governments with substantial regulatory authority. To be sure, several critiques of localism remain relevant in this arena. Perhaps the most common criticism lodged against local firearm rules is that a patchwork of ordinances creates unpredictability for law-abiding gun owners.48 Yet such compliance costs simply cannot outweigh the benefits of permitting variation in local gun laws, which are best illustrated through a closer look at two particularly salient virtues of localism: the accommodation of diverse preferences, and the ability to test and refine regulations that meet community needs.
1. Political Virtues: Responsiveness and Accommodation
Among the many arguments advanced in favor of local autonomy is the notion that localities are more responsive to the norms, attitudes, and preferences of their residents.49 When endowed with the flexibility to act, local officials can craft policies that reflect distinct political conditions within their borders.50 Autonomy thus affords a mechanism for accommodating viewpoints on contentious issues: rather than forcing narrowly endorsed positions or disappointing compromises onto the public, states can leave room for an array of local approaches that are sensitive to community views.51
Satisfying diverse attitudes has proven particularly challenging in the context of firearm policy, a subject on which Americans often hold sharply conflicting opinions. Notably, large segments of the public do agree on some basic propositions regarding firearms. Sizeable majorities believe that law-abiding citizens should be permitted to own guns,52 that gun violence is a serious issue,53 and that the Second Amendment “protects an ‘individual’ right to bear arms” while “permit[ting] reasonable gun control laws.”54 National surveys also reveal overwhelming bipartisan support for several specific reforms, including universal background checks and restrictions on assault-rifle sales.55 But beyond these limited areas of agreement, firearms remain one of the most divisive issues in American politics.56 State and federal reform efforts repeatedly fall prey to partisan bickering and legislative gridlock, and the policies that do get enacted are often products of narrow political victories that leave many constituents dissatisfied.
Increased local capacity to regulate guns offers an avenue for accommodating—rather than aggravating—these sharp divisions in views on firearms. The utility of localism in this arena arises from the realities of political geography: within individual states, residents who share similar gun-related preferences tend to congregate together. Perhaps the best approach to examining this trend is to highlight the “consistent underlying differences” in firearm views between urban, rural, and suburban areas,57 as these labels provide a rough framework for classifying localities.58 Scholars have devoted significant attention to the distinctions between urban and rural “gun culture,” producing a large body of work that powerfully illustrates the local clustering of firearm attitudes.59
Consider, for example, recent findings on rates of gun ownership, which supply a metric for demonstrating stark interlocal differences in opinions on and familiarity with guns. Though the exact statistics vary across surveys, multiple studies have reaffirmed the same key pattern: Firearm prevalence differs dramatically across rural, suburban, and urban communities, with “rural dwellers far more likely than those who live in urban areas to say they own a gun.”60 One recent survey concluded that forty-six percent of Americans living in rural areas own a firearm, compared with twenty-eight percent and nineteen percent of suburban and urban residents, respectively.61 Another nationwide study found that firearm ownership was “highest in counties with no town over 10,000 (54.2%) and lowest in the central cities of the largest 12 metropolitan areas (12.7%),”62 with prevalence rates that varied from twenty percent to thirty-one percent in the suburbs.63 Residents in rural communities are also “particularly likely to have grown up with a gun in their household,”64 a factor that tends to increase the probability of future firearm ownership.65
Gun owners in urban and rural communities often report distinct explanations for purchasing their firearms, a pattern that further underscores notable differences in local experiences with guns. Beyond “personal protection,” which just recently emerged as a leading reason for firearm ownership across all communities,66 rural owners are far more likely than their urban counterparts to list recreational use and social ties as key reasons for keeping a gun.67 Roughly forty-eight percent of rural gun owners identify hunting as an “important reason” for acquiring a firearm, while only twenty-seven percent of urban gun owners do so.68 Additionally, sixty percent of gun owners in rural areas—compared with forty-four percent in urban locales and thirty-eight percent in the suburbs—report that “all or most of their friends . . . own guns,”69 a distinction that is salient because individuals “who have strong social ties to other gun owners are more likely . . . to see their gun ownership as important.”70 These interlocal differences, Professor Joseph Blocher explains, are “historically consistent,”71 but they “tend to be obscured” in debates over firearms “that focus[] solely on states and the federal government.”72
Relying on a “wealth of public opinion research,” scholars have demonstrated that the geographic patterns in both rates of and reasons for firearm ownership reflect sharp urban-rural distinctions in the underlying “social meanings” associated with guns.73 In rural communities, firearms tend to “symbolize a cluster of positive values,”74 including “honor,” “courage,” and “individual self-sufficiency.”75 The “possession[] and use of firearms” is “generally celebrate[d],”76 and gun ownership is frequently understood to be an essential component of individual identity.77 Meanwhile, many urban residents view firearms not only as “threats . . . to safety,”78 but also as symbols of violence, disorder, “distrust[,] and indifference toward others.”79 These conflicting associations with guns are deeply entrenched and consistently reinforced within discrete communities,80 yielding beliefs about guns that are stubbornly resistant to persuasion based on statistics.81
The interlocal distribution of firearm-related norms and attitudes translates into dramatically different levels of support for regulation. Generally, “[o]pposition to gun control decreases as one moves from small towns and rural areas to large metropolitan centers,”82 with cities displaying the greatest appetite for “stringent gun regulations.”83 In one illustration of this trend, a recent survey found that fifty-six percent of urban dwellers “favored stricter gun control,” while only thirty-four percent of rural respondents did so.84 Indeed, residents of rural areas “tend to be more supportive of proposals to loosen gun restrictions,” such as those that call for relaxing limits on concealed carry.85
To some extent, these patterns reflect the geography of partisan identity: Democrats, who are far more likely than Republicans to embrace firearm regulation,86 tend to cluster in urban areas.87 Moreover, the spatial concentration of support for gun restrictions is evident in both the variety and volume of urban firearm laws. “[C]ities have traditionally enacted the country’s strictest gun control measures, including handgun bans, safe storage requirements, [and] limits on public carrying”88—and urban policies still account for the vast majority of permissible local gun restrictions. These existing rules likely “underrepresent[,] perhaps significantly[,] . . . the breadth and scope of laws that cities would pass” if more states left them with the authority to do so.89
The upshot is that local attitudes toward firearm regulation vary tremendously within the borders of individual states, and such views are often rooted in values, norms, and cultural understandings impervious to empirics.90 These stark and stubborn differences frustrate state-level efforts to forge compromises over gun policy, resulting in stalled reform initiatives and bruising political fights that leave “large numbers . . . on the losing side aggrieved.”91 But the significant variation in firearm-related preferences is neither an inevitable nor an insurmountable barrier to change; in fact, the geographic clustering of those viewpoints presents an “opportunity” to reap the benefits of local autonomy.92 With greater authority over gun regulation, officials in communities with strong support for stricter laws could forego cumbersome battles in state legislatures and respond to that demand locally. Meanwhile, rural localities would be free to pursue agendas that “maintain their strong gun culture[s]” to the extent permitted under state and federal law.93 The bottom line: Enhanced local autonomy permits geographic variation in gun laws, thereby facilitating the accommodation of conflicting preferences within a single state. In a policy domain where compromise and consensus are often in short supply, greater local control over firearm regulation would open up important avenues for change.
2. Policy Virtues: Tailoring Policies to Meet Distinct Local Needs
Echoing some of the classic justifications for federalism, scholars have offered yet another salient argument in favor of local autonomy: the devolution of authority to smaller government units yields more effective and creative policymaking.94 Localities often exhibit a “knack for ‘practical’ problem-solving,”95 which stems from their capacity to “provide a level of regulation or . . . service more finely tailored to a particular [community’s] needs.”96 Consequently, empowering those governments not only “allow[s] localities to [maximize] their own policy goals,”97 but also “permits the testing of varying approaches . . . and the development of real-world evidence” on their efficacy.98 Put differently, local autonomy facilitates “innovation that would never occur if all policymaking took place . . . on the state and federal levels.”99
Such arguments prove especially compelling when applied to questions about guns, which cause roughly 39,000 deaths and 70,000 nonfatal injuries in the United States every year.100 The causes, risks, and burdens of these gun-related harms are not evenly distributed, and different communities experience discrete sets of challenges arising from firearm use.101 This variation creates conditions ripe for localized action and experimentation on a range of pressing gun issues.
The distinctions between urban, rural, and suburban areas are once again useful for illustrating this point, given the substantial differences “across the urban-rural continuum” in firearm injury and mortality.102 Urban areas have consistently shouldered the heaviest burdens of gun-related crime and interpersonal firearm violence.103 Throughout the 1990s, the proportion of all deaths attributable to shootings was nearly two times greater in urban counties than in rural ones,104 and the overall firearm homicide rate for the nation’s fifty largest metropolitan areas still exceeds the countrywide average.105 City residents also experience far higher rates of nonfatal injury due to interpersonal gun violence: “[F]irearm assaults” are “[t]he leading cause of hospitalization” for adolescents in urban communities, “occurring at a rate . . . 7.8-fold higher . . . than that . . . in rural areas.”106 The burdens of both fatal and nonfatal shootings do vary considerably between metropolitan areas,107 but that pattern only bolsters the case for interventions tailored to specific local conditions. Plus, cities large and small have reported recent upticks in gun crime,108 a troubling trend that reinforces the need for local action on the issue.
Though interpersonal gun violence predominantly affects urban areas, rural and suburban localities are not without their own gun-related challenges.109 Perhaps the most powerful example is the alarming rise in firearm suicide, which now accounts for over sixty percent of intentional gun fatalities nationwide.110 Cities and small towns alike have witnessed staggering increases in suicide deaths,111 but rural communities disproportionately bear the brunt of this phenomenon.112 Firearm suicide rates among rural youth are roughly two times greater than those for children and adolescents in urban areas,113 and that gap appears to be “widening.”114 Significant disparities are also evident in the incidence of firearm accidents: rural counties consistently report the highest rates of hospitalization and mortality due to unintentional gun injuries.115 These less visible forms of gun-related harm are often overlooked in public disputes over firearm policy,116 an omission that underscores the importance of allowing localities to tackle distinct problems affecting their constituencies.
The conclusion to be drawn from these geographic patterns is that local governments are situated to play a vital role in efforts to combat various problems arising from gun use. Public health experts have repeatedly called on localities to “tailor . . . [gun-harm] prevention activities” to their “distinctive profiles of firearm injury and death,”117 and these localized approaches could yield “incremental policy victories that have proven elusive” at higher tiers of government.118 In sum, many firearm challenges invite the sort of innovation and customization so often valued among proponents of localism. With broader authority over gun regulation, local governments can go beyond one-size-fits-all policies at the state and federal levels to address specific gun-related harms within their own communities.
The discussion above makes clear that local governments can and should be at the forefront of efforts to craft more effective firearm laws. The normative justifications for localism apply with particular force in this context: greater local autonomy would facilitate the accommodation of conflicting views on guns and enable officials to target distinct firearm-related problems. Again, that is not to say that all gun policy should be handled locally; certain substantive issues are more amenable to uniform solutions administered at the state or federal level. But the bottom line is that local lawmaking—in addition to, not in lieu of, ongoing state and federal efforts—represents a vital pathway for progress toward a more comprehensive gun regulatory scheme.
Opportunities to pursue local measures, however, will remain severely constrained without efforts to confront one of the “biggest legal obstacles” for localities: state preemption laws that curtail or prohibit local action on guns.119 The following Part examines this underexplored barrier to firearm policymaking, and in doing so, provides a closer look at a particularly potent strain of state-local preemption.
II. Understanding the Obstacle: Statutory Preemption of Local Firearm Regulations
Traditional preemption principles have long been essential in defining and cabining local power, but recent decades have witnessed the proliferation of particularly aggressive state-level restrictions on local lawmaking. This Part provides a comprehensive overview of the history, substance, and implications of that phenomenon in the specific context of firearm policy. Section II.A begins with the past, tracing the evolution of statutory firearm preemption from its roots in the early 1980s to the present. That historical account reveals two central trends: all but a handful of states have adopted measures that expressly displace local gun policy to some degree, and a subset of those states now threaten to impose punitive sanctions on localities for preemption violations. Drawing on these patterns, Section II.B provides a detailed framework for organizing and categorizing state firearm preemption laws. Section II.C then evaluates the practical implications of these statutes using anecdotal evidence from several states. That assessment leaves little room to doubt the efficacy of state firearm preemption measures in constraining, unraveling, and deterring local gun regulation.
A. The History and Politics of State Firearm Preemption
The rise of expansive state preemption is largely—though not entirely—a story of escalating partisan tensions and state-level backlash against progressive urban agendas. As several scholars have explained elsewhere, the current landscape of state-local preemption reflects underlying shifts in the nation’s political geography that have unfolded over multiple decades.120 Democrats have flocked to metropolitan areas,121 resulting in a heavy concentration of support for progressive regulations in urban centers.122 This clustering of Democratic voters in a small subset of electoral districts also paved the way for Republican dominance of state legislatures, a trend that has allowed conservative lawmakers to quash the regulatory efforts of left-leaning local leaders.123 Granted, preemption measures are not confined to states with Republican legislative majorities, and these laws frequently constrain the authority of rural and urban communities alike.124 But on the whole, most “new preemption . . . proposals” have been enacted under “Republican dominated state governments,” often to “embrace conservative economic and social causes” or “respond to . . . relatively progressive local regulations.”125 This phenomenon will likely persist if current political divides remain stable; Republicans held majorities in thirty state legislatures as of early 2022, while Democrats maintained control of many urban governments.126
The contemporary landscape of firearm preemption generally mirrors these political dynamics. Republican legislatures have been responsible for the vast majority of aggressive firearm preemption laws, several of which were adopted in direct response to local gun proposals.127 This conservative resistance has sharply curtailed the ability of Democratic local officials to act on strong support for more stringent gun laws within their borders.128 The narrative of partisan hostility, however, risks glossing over some of the distinct social and political forces at play in the evolution of state firearm preemption. This Section accordingly presents a more detailed account of that history.
1. The Origins of Firearm Preemption
The stage was set for the rise of state firearm preemption in the early 1970s, when a “nascent gun control movement” began pursuing a bold reform strategy centered primarily on “prohibit[ing], directly or indirectly, private citizens from possessing or using handguns.”129 As Professor Kristin Goss explains, these organizations were committed to championing a “centralized approach to gun policy,”130 and they therefore focused their efforts almost exclusively on “elite politics at the national level.”131
While these organizations were “struggling unsuccessfully to make progress in Congress,”132 a handful of localities were pursuing their own ambitious firearm-related agendas. In 1981, the small Chicago suburb of Morton Grove enacted an ordinance prohibiting the private possession of pistols.133 While supporters of gun regulation cheered the move, the national organizations spearheading the push for firearm reform “did not seriously attempt to create momentum” out of such local efforts.134 Meanwhile, opponents of stringent firearm laws perceived municipal handgun bans as a “grave political threat”135—especially after the Morton Grove ordinance withstood a Second Amendment challenge.136 From the perspective of the National Rifle Association (NRA) and similar groups, the risk that the “Morton Grove precedent would have a domino effect . . . was one that the gun lobby was not willing” to take.137
Determined to prevent the spread of similar handgun bans, the NRA embarked on a nationwide campaign for strict limitations on local authority over firearm policy.138 Throughout the 1980s, the organization pressed state legislatures to adopt preemption statutes that expressly curtailed the ability of local governments to pursue gun regulations.139 The NRA and its counterparts insisted that such measures were necessary to prevent a “hodgepodge” of confusing firearm restrictions and stave off a “snowball effect” toward sweeping bans on gun possession.140 These arguments, though likely overblown, were highly effective at a time when “local ordinances were passing” swiftly “while scores of national bills [were] not.”141 The NRA’s campaign also benefited from a symbiotic relationship with various pro-business organizations—in particular, the American Legislative Exchange Council (ALEC)—whose missions centered on coordinating “efforts between state legislative branches and private industries” through the provision of “model legislation . . . and lobbying services.”142 Together, these groups persuaded state officeholders to place firearm preemption bills at the top of their agendas.
This concerted push for the adoption of express preemption laws was “incredibly successful”143: in the two-and-a-half decades after Morton Grove enacted its controversial handgun ban, the number of states explicitly limiting or barring local gun regulations had climbed from seven to more than forty.144 Though critics were quick to point out that the NRA’s fierce preemption campaign was fundamentally inconsistent with its previous endorsements of local autonomy,145 few could deny the effectiveness of its chosen tactics. With a strategy targeting state legislatures, the NRA and similar groups managed to “reduc[e] the stringency, scope, and variety of local gun regulations”146 without “fighting ordinance battles one-by-one.”147 Moreover, by the time reformers decided to shift their focus toward “more amenable[] local venues,” firearm-related interest groups had already “used federalism—and legislative dominance—to deprive [them] of those opportunities.”148
2. Recent Shifts and the Rise of Punitive Preemption
In 2010, the Supreme Court issued a landmark opinion invalidating the exact sort of municipal handgun bans that the preemption movement initially aimed to prevent.149 But the firearm preemption campaign only intensified—Republicans had managed to recapture a majority of state legislative seats in the midterm elections,150 providing conservative organizations with a clear opening to push their agendas even further. These groups continued to enjoy extraordinary success: in the 2011–2012 legislative session alone, lawmakers in nine states introduced preemption bills mirroring an ALEC template titled the “Consistency of Firearm Regulation Act.”151 During a time of increasing polarization in debates over gun policy,152 aggressive state preemption took hold as a national norm.
The past ten years have also witnessed a more alarming development: The emergence of state laws penalizing local governments or officials for firearm policies that violate express preemption statutes. The Oklahoma legislature pioneered the first of these extreme measures in 2003,153 but the partisan shifts of 2010 marked the real turning point in this phenomenon. With Republicans firmly in control of legislative majorities, several states enacted punitive preemption measures in relatively quick succession: Florida’s legislature authorized various penalties for “knowing and willful violations” of its firearm preemption law in 2011,154 and the following year, Kentucky embraced criminal liability for local officials who endorsed prohibited gun regulations.155 Mississippi passed its own punitive legislation mirroring Florida’s statute in 2014,156 and Arizona’s Republican lawmakers raised the stakes two years later with a series of severe fiscal sanctions for localities.157 These measures may represent only the beginning of a broader pattern, as legislators in other states continue to consider their own punitive preemption proposals for local firearm laws.158
Though the rise of aggressive firearm preemption is largely a product of partisan maneuvering and interest-group pressure, the implications of this phenomenon “transcend the politics of the particular issue[] at stake.”159 As a result of this intensive preemption campaign, communities nationwide—urban and rural, progressive and conservative, large and small—have been thwarted in their attempts to implement local solutions to numerous gun-related problems. The following Sections turn to the current firearm preemption landscape, first categorizing the relevant state laws into a framework and then surveying concrete examples of their effects on local governments.
B. Toward a Firearm Preemption Framework
The history outlined above serves as a reminder that trends in state preemption are “volatile” and constantly evolving.160 Moreover, existing firearm preemption laws “vary impressively and are rife with exceptions and dizzying cross-references”161—a reality that complicates efforts to navigate such restrictions. To achieve some clarity, the following discussion canvasses the range of firearm preemption measures and offers a framework for classifying those laws. This Section does not aim to provide an exhaustive catalog, as the precise mechanics of firearm preemption vary from state to state. The taxonomy below is instead designed to highlight key features of state firearm preemption statutes, with the goal of supplying a general guide for audiences making sense of these barriers to gun policy.
As the preceding Section makes clear, the current assortment of firearm preemption laws reflects two significant patterns: First, most states have embraced express preemption statutes that restrict local gun regulation in some capacity. Second, several legislatures have supplemented these laws with punitive preemption provisions that impose consequences on localities or officials for violations. The framework presented here is structured around these statutory approaches to curtailing local gun policy, though with the understanding that implied preemption remains a crucial background consideration in many states as well.162
1. No Statutory Firearm Preemption
In Connecticut, Hawaii, Massachusetts, New Jersey, and New York, state legislators have refrained from explicitly restricting local capacity to regulate firearms or ammunition.163 Localities in these states consequently enjoy considerable flexibility to act on guns, subject to any constraints that exist under each jurisdiction’s implied-preemption jurisprudence.164 Given that courts vary significantly in their implied-preemption analyses, assessing the viability of a particular firearm regulation requires careful consideration of the relevant state case law.165 But as a general matter, state-local conflicts over gun policy are adjudicated on a case-by-case basis, and localities remain free to test the scope of their authority across a range of firearm-related issues.166
2. A Spectrum of Express State Preemption Statutes
The remaining forty-five states have adopted express firearm preemption provisions that explicitly limit or block local firearm measures to some degree. These statutes range from laws that prohibit only specific types of firearm regulation to those that preempt gun-related lawmaking entirely.167 The question of whether a specific local law is expressly preempted turns on a close assessment of state statutory language and any corresponding judicial interpretations, but some general principles and examples are highlighted below.
a. Specific Express Preemption
Several state legislatures have prohibited specific types of gun regulation while affording localities considerable leeway to pursue other firearm-related initiatives. In Nebraska, for instance, an express preemption provision blocks any local action with respect to state-issued concealed-carry permits for handguns.168 California’s legislature similarly opted to preempt specific categories of regulation, expressly barring certain local measures on the sale and possession of imitation firearms,169 the registration of commercially manufactured guns,170 and the licensing of handguns for use on private property.171 State courts have invalidated multiple ordinances under these provisions,172 but they have otherwise made clear that California law leaves localities with “substantial” latitude to “tailor firearms legislation to the particular needs of their communities.”173
Colorado recently joined this category as well. In early 2021, the state emerged as the first in the nation to enact a broad repeal of its firearm preemption provisions. The signed bill, which acknowledged that “the regulation of firearms is a matter of state and local concern,” empowers local governments to “enact an ordinance, regulation, or other law governing” firearms unless “expressly prohibited pursuant to state law.”174 State legislators did leave behind a statute that prohibits local restrictions on the transport of guns in private vehicles,175 evincing an intent to avoid burdening residents with inconsistent rules as they travel through the state. In another effort to accommodate concerns regarding nonuniformity, the bill’s authors specified that localities cannot impose criminal penalties on those who violate their gun laws unless the individuals in question “knew or reasonably should have known that [their] conduct was prohibited.”176 As in other states with specific preemption provisions, Colorado’s revised legislation offers a glimpse into the role that such statutes might play in finetuning a firearm regulatory regime—one that reduces certain compliance costs for gun owners while leaving localities with substantial flexibility to enact firearm policies that meet local needs.
b. Partial Express Preemption
Many states fall somewhere in the middle of the express preemption spectrum, with statutes that displace local authority in multiple firearm policy areas.177 Typically, these statutes are formatted as general prohibitions on local gun regulation, subject to a set of specific exceptions.178 For example, the Wisconsin legislature has barred all local lawmaking on the “sale, purchase, purchase delay, transfer, ownership, use, keeping, possession, bearing, transportation, licensing, permitting, registration, or taxation of . . . any firearm,”179 unless the measure falls within one of several narrow exemptions listed in the statute.180 South Carolina has taken a similar approach, preempting all local regulations related to the “transfer, ownership, possession, carrying, or transportation of firearms” except for those “temporarily restrict[ing]” open carry during certain events on public property.181 State law in Texas broadly prohibits localities from adopting rules “relating to” firearms or ammunition, also with limited exceptions.182 The exact contours of local authority under these “partial” preemption statutes can differ significantly, depending on the number and scope of the exceptions carved out in the relevant state law.183
c. Maximum Express Preemption
The remaining states have embraced what commentators describe as “absolute” preemption provisions, which facially prohibit all local firearm laws.184 Pennsylvania, for instance, enacted a statute providing that “[n]o county, municipality or township may in any manner regulate the lawful ownership, possession, transfer or transportation of firearms,”185 and South Dakota’s localities have been denied the authority to pass any “ordinance that restricts or prohibits, or imposes any tax [or] licensure requirement” on guns.186
These provisions, frequently enacted in the name of preserving uniformity or protecting constitutional interests, are blunt instruments that strip away far more local power than is necessary to achieve their supposed aims. Indeed, absolute preemption statutes often preclude local lawmaking in areas where the state itself has not attempted to regulate, a pattern consistent with Briffault’s observation that such statutes are designed not to reconcile competing firearm laws, but to preclude any action on the subject whatsoever.187 Put differently, many sweeping firearm preemption measures were championed with an eye toward “deregulat[ing] the space” entirely.188
3. Punitive Preemption Measures
In addition to enacting express restrictions on local firearm measures, several states have recently moved into the “uncharted legal territory” of punitive preemption.189 Statutes in this category go beyond “merely nullify[ing] inconsistent local rules” to “impose harsh penalties on local officials or governments” responsible for preempted policies.190 These laws encompass an array of sanctions “as creative as they are severe,”191 and states differ in both the number of authorized punishments and the circumstances that trigger their application. Some legislatures, for instance, have endorsed narrower punitive measures that rely on a single enforcement mechanism or that apply under limited conditions.192 Others have taken a hybrid approach, outlining a variety of potential penalties for localities with preempted gun laws.193
State legislators in Florida, Kentucky, and Arizona—three states with “absolute” prohibitions on local gun policymaking—have adopted the most severe forms of punitive firearm preemption to date. In Florida, section 790.33 of the state code proclaims an intent to “occupy[] the whole field of regulation of firearms” and expressly preempts all inconsistent local “ordinances, rules, [and] regulations.”194 That same law then lists a series of punitive mechanisms designed to “deter and prevent [its] violation,”195 including removal from office, hefty fines, civil liability for damages, and attorney’s fees.196 Kentucky’s section 65.870, which similarly bars local regulation in “any part of the field . . . of firearms,”197 contains its own distinct consequences for “violation[s] of [the law] or the spirit thereof.”198 The statute strips local officials of immunity, authorizes private lawsuits against localities, mandates the payment of attorney’s fees, and even threatens criminal penalties.199 Local governments that attempt to regulate guns in Arizona risk running afoul of section 13-3108, a sweeping firearm preemption law that punishes violations with fines, removal from office, and civil liability.200 These sanctions are coupled with an additional set of fiscal penalties under Arizona’s infamous Senate Bill 1487 (S.B. 1487),201 which mandates state-aid cutoffs when localities fail to “cure” preemption defects in any policy area.202
To capture both the range and severity of the enforcement mechanisms embedded in punitive preemption laws, this Section breaks the relevant statutes into their component parts and organizes those provisions based on penalty type. The available sanctions for firearm preemption violations can be sorted into two separate buckets: those penalizing local governments and those targeting individual officials. As demonstrated below, states have taken various approaches within each of these two categories.
a. Penalizing the Local Government
Many punitive preemption measures impose fiscal sanctions directly on local governments engaged in firearm-related policymaking.203 The most popular approach within this category has been the authorization of private lawsuits seeking to hold local entities financially accountable for preemption violations, though one state has also taken the extraordinary step of pledging to withhold funds from noncompliant governments. Both penalty types threaten to exact a heavy toll on localities when their gun laws are challenged and invalidated.
i. Authorizing Private Lawsuits and Monetary Remedies
To facilitate the enforcement of firearm preemption statutes, multiple states have created private rights of action against local governments with potentially prohibited regulations on the books.204 These laws typically provide that any “person or . . . organization . . . adversely affected by” a preempted firearm policy is entitled to file a civil lawsuit against the locality.205 A handful of states have deviated from this standard script,206 but the repeated use of nearly identical language suggests that legislatures are borrowing these “citizen suit provision[s]” from one another.207
Statutes of this sort not only expand the available avenues for bringing preemption claims, but also significantly raise the stakes of such lawsuits. When a local policy is declared invalid in a traditional preemption dispute, localities usually face “nothing more” than an order deeming the measure unenforceable and the loss of “whatever expenses [were] incurred” during the litigation.208 But in states where private litigants can file claims under the newer punitive measures, local governments may find themselves on the hook for sums that far exceed the costs of their own legal defense. Some provisions specify that successful plaintiffs may recover attorney’s fees,209 others provide for actual damages,210 and several authorize courts to award both.211 Arizona’s legislature has gone even further with a measure empowering judges to impose a $50,000 civil penalty on any “political subdivision” that “knowingly and wilfully violate[s]” the state’s firearm preemption statute.212 These measures significantly increase “the risks of losing a legal battle” over preemption,213 likely leaving many localities “unwilling even to try to probe the line of what is legally permissible” in the firearm space.214
ii. Withholding State Funds
Arizona’s recent preemption legislation, known widely as S.B. 1487, has achieved notoriety for its status as the “most punitive fiscal measure” applied to local governments.215 The statute threatens localities with serious financial consequences for any violation of state law across a range of policy areas,216 layering an additional set of possible penalties for gun-related lawmaking onto those already listed in Arizona’s firearm preemption provision.217
Under S.B. 1487, any Arizona legislator may request that the State Attorney General conduct an inquiry into whether a particular local policy has been preempted.218 Localities are given “thirty days to resolve [any] violation” uncovered in the investigation.219 If a preempted law remains in place after that period has elapsed, Arizona’s Treasurer must “withhold and redistribute” the local government’s share of state aid until the violation is addressed.220 To place the severity of this provision in perspective, these “state-shared” funds account for “about a quarter” of Tucson’s general revenues.221
Even the mere possibility of a violation raises serious fiscal risk. Upon concluding that a local regulation “[m]ay violate a provision of state law,” Arizona’s Attorney General must “file a special action” with the state supreme court for resolution of the issue.222 The local government is then required to “post a bond equal to the amount of state shared revenues” received from the state “in the preceding six months.”223 The Tucson example from above once again displays the risk: this potential bond payment would “exceed[] [the city’s] reserve fund by about $5 million.”224
Within and beyond the firearms space, Arizona’s S.B. 1487 presents a severe financial threat for localities statewide. The statute effectively “short circuits the traditional legal process for . . . preemption challenges,” endowing the Attorney General with “extraordinary powers” to identify and punish violations of state law.225 Moreover, the state funds at stake are “crucial to local fiscal health.”226 Litigating potential violations requires posting a bond that may be “virtually impossible” for localities to pay, and “no local government is likely to . . . withstand the coercive force of a complete cut-off” from shared state aid.227 As a supplement to Arizona’s separate punitive firearm preemption law, S.B. 1487 provides “an effective means of bludgeoning a recalcitrant locality into submission.”228
b. Punishing Local Officials
In addition to, or in place of, penalizing local governments, some states “reinforce firearms preemption by threatening local officials” with sanctions.229 The current roster of state-imposed consequences for local leaders includes civil liability, substantial fines, removal from office, and criminal punishment.230 These penalties are explored further below.
i. Financial Liability
The threat of individual monetary accountability has emerged as the most common tactic for targeting local officials who attempt to regulate guns. In several states, government employees are included on the list of defendants exposed to potential liability when private parties allege preemption violations.231 Officials in Oklahoma may be held “jointly and severally [liable]” for their role in firearm policymaking,232 and local leaders who enact preempted gun laws in Kentucky are stripped of their state-conferred immunity.233 As a result, officials in both states could be forced to pay steep prices for winding up on the losing side of gun preemption disputes.234
Two additional states go so far as to impose weighty fines on local lawmakers involved in adopting or enforcing their own firearm laws. Florida’s preemption provision not only subjects officials to civil liability,235 but also mandates that courts “assess a civil fine” of up to $5,000 for “knowing and willful” violations of the statute.236 The Mississippi legislature borrowed from this template to enact a similar measure,237 which authorizes a $1,000 civil penalty for “[a]ny elected county or municipal official under whose jurisdiction [a] violation occurred.”238 Both states also bar local governments from using public funds to cover or reimburse the defense costs of officials found liable under each preemption law.239
ii. Removal from Office
Legislators in two states have added removal from office to the medley of available penalties for local leaders. In Arizona, any individual who has “knowingly and wilfully violated” the state’s firearm preemption law may be subject to “termination from employment.”240 Florida’s legislature adopted a comparable provision empowering the Governor to remove officials for “knowing and willful violation[s]” of its restriction on local firearm policies.241 The validity of the Florida provision is currently uncertain,242 but both measures signal a willingness on the part of state legislators to deter gun regulation through direct intrusion into local power structures.243
iii. Criminal Liability
Kentucky has separated itself from the rest of the punitive preemption pack with a measure that outlines criminal penalties for enacting prohibited gun laws.244 The statute specifically provides that any “public servant” implicated in a preemption violation is criminally liable for official misconduct,245 a misdemeanor carrying a one-year maximum prison sentence.246 This Kentucky provision may represent a “fearsome new template” for punitive preemption,247 though no states have followed suit as of yet.
The framework above lends some clarity and coherence to the complex landscape of state firearm preemption statutes. With this roadmap in hand, activists, officials, and scholars can develop a deeper understanding of discrete state preemption laws, their implications for the state-local relationship, and their consequences for gun policy. Those consequences take center stage in the following Part, which investigates the practical effects of firearm preemption on local efforts to address gun-related harms.
III. Preemption in Practice: Derailing and Deterring Local Firearm Policy
Commentators have offered a range of predictions regarding the costs of recent trends in state preemption. Some warn that broad express preemption measures—now common across various policy areas—diminish “responsiveness . . . to citizen engagement,” undermine “attentiveness to distinctly local preferences,” and reduce regulatory “innovations . . . address[ing] local problems.”248 Several scholars have added that punitive preemption likely compounds these consequences, as “few actions can have a greater chilling effect on local self-government than threatening local officials with [sanctions] . . . for supporting certain local measures.”249
Drawing on concrete examples from various states, this Part demonstrates the accuracy of these predictions with respect to firearm policy. Jurisdictions with expansive express preemption statutes have tied the hands of community leaders eager to address local firearm-related issues and preferences. Punitive preemption laws exert additional pressure on many local governments, effectively forcing them to back down from certain gun policies or else risk severe sanctions. In several cases, the possibility of punishment has even discouraged attempts to open debate on firearm issues at the outset. These consequences have converged to fuel a substantial reduction in the breadth, diversity, and effectiveness of local firearm laws nationwide.
A. Express Firearm Preemption in Practice
Explicit restrictions on local gun policy differ from state to state in their scope and severity, but their collective role in narrowing the range of regulatory opportunities for firearms is readily apparent. In particular, broad express preemption measures—that is, those purporting to prohibit all or nearly all local firearm regulation—regularly push localities to abandon or curtail policy efforts that target gun-related concerns.
For a compelling example of broad express preemption and its consequences, consider Pennsylvania. The state’s two largest cities, Pittsburgh and Philadelphia, have long grappled with rates of firearm-related crime and mortality that exceed statewide averages.250 Democratic leaders in both cities have consistently acknowledged the need to address local gun violence,251 but the state’s expansive preemption statute has thwarted their repeated attempts to enact more comprehensive firearm laws.
A string of cases dating back to the late 1990s is illustrative. Both Philadelphia and Pittsburgh suffered a major defeat under the preemption statute in 1996, when the Pennsylvania Supreme Court invalidated a set of ordinances prohibiting certain assault weapons within municipal limits.252 A lower court later relied on that decision to strike down seven Philadelphia measures designed to reduce gun-related crime.253 The judges did express sympathy for the city’s efforts to address “terrible problems [of] gun violence,” but those “practical considerations” could not justify contravening the state legislature’s “clear” intent to “assume[] sole regulatory power” over firearms.254 Philadelphia officials were dealt another blow the following year with an opinion that nullified new restrictions on assault rifles and straw purchases.255 Once again, the court explained, the state’s broad preemption law foreclosed “the City’s latest attempt” to curtail the “tragic proliferation of gun crimes” within city limits.256
More recent events have thrust the ramifications of Pennsylvania’s sweeping preemption measure into the national spotlight. Following a shootout that left six Philadelphia police officers wounded, Mayor Jim Kenney publicly implored state legislators to either “choose . . . to help” or “get out of the way—and allow cities . . . that struggle with gun violence to enact [their] own solutions.”257 Around the same time, Pittsburgh Mayor Bill Peduto was litigating the validity of three new firearm regulations adopted after a mass shooting in a local synagogue.258 The measures would have revived the city’s assault-weapons ban, barred military-style accessories, and empowered “courts to temporarily prohibit” high-risk individuals from possessing firearms.259 But a state court swiftly voided these ordinances,260 reminding officials in Pittsburgh and elsewhere that the legislature has “preempt[ed] any local regulation pertaining to . . . firearms. . . . across the state of Pennsylvania.”261
Leaders in Philadelphia and Pittsburgh are representative of the many local officials—often, though not entirely, in urban areas—whose attempts to meet local demand for gun regulation have been derailed under a broad preemption statute.262 As these examples illustrate, expansive firearm preemption is fundamentally at odds with the long-standing notion that localities are “both democratically elected governments and service providers that regularly tackle the street-level problems.”263 In Pennsylvania and beyond, state legislators have seriously limited the range of options available to officials for crafting public-safety agendas that reflect local needs.
B. Punitive Preemption in Practice
While punitive preemption is a relatively recent phenomenon, its consequences for firearm policymaking are already becoming clear. Across the states with punitive preemption laws, legislators and private plaintiffs alike have successfully deployed these measures to secure the removal of existing gun regulations and derail the implementation of new ones. Localities that initially resist this pressure often acquiesce once confronted with the risk of burdensome litigation. Moreover, in several instances, the looming prospect of state-imposed sanctions has been sufficiently distressing to stifle public discussion on gun-related problems and discourage local governments from probing the contours of their authority. These patterns amount to an assault on local lawmaking that restricts the “capacity of local communities to govern themselves.”264
1. Mississippi
A closer look at Mississippi illuminates the potent effects of punitive measures that authorize private actions against local governments with preempted firearm policies. In 2014, the state empowered private litigants to challenge local gun regulations and seek various civil remedies.265 The statute requires that prospective plaintiffs first submit the supposed violation to the State Attorney General, who informs localities of their thirty-day window to “cure” the issue before facing litigation.266
Almost immediately, gun-rights interest groups inundated the Attorney General’s Office with preemption allegations.267 One particularly ambitious firearms instructor filed thirty-four separate complaints, prompting all but three of the targeted localities to alter or repeal their regulations within the thirty-day grace period.268 The remaining holdouts capitulated once they were hauled into court.269 More recently, at the behest of a different gun-rights advocate, the Attorney General notified the Republican mayor of a Jackson suburb that its ordinance barring concealed weapons on public property violated the state preemption law.270 Within just two months, the Madison Board of Aldermen gutted the seven-year-old rule and approved a new version.271 The swiftness with which localities have succumbed to these warnings underscores the coercive nature of statutes that cast local gun regulation as a basis for civil liability.
2. Kentucky
A similar statewide campaign to disassemble local firearm policy has unfolded in Kentucky. Shortly after the state’s punitive preemption measure took effect in 2013, the Kentucky Concealed Carry Coalition—a gun-rights organization commonly known as KC3—unleashed a wave of lawsuits against localities with “what its members saw as offending ordinances and rules.”272 In that first year alone, all but one of the fourteen targeted local governments “rescind[ed] the [challenged] regulation . . . before going to court.”273 The organization now boasts that it has forced “dozens of local governments . . . to change their ordinances,” and it touts its “18–0 record in court actions” against localities that “refused” to do so.274 The overwhelming success of this crusade is a direct product of Kentucky’s preemption statute: by “strip[ping] government officials of immunity” and “allow[ing] those filing suit to recoup attorney’s expenses,” the law “makes it possible, and worthwhile, for [KC3] to take [its] cases to court.”275
Recent KC3 victories reveal that the mere threat of punitive preemption is a powerful tool in the organization’s deregulatory campaign. In 2015, the Louisville Arena Public Authority swiftly repealed a stadium’s “total ban on firearms” after KC3 warned that the regulation “constituted a violation of state law.”276 The following year, a single “request” from KC3 prompted Danville to retract a 1983 ordinance prohibiting firearms in public cemeteries.277 Hoping to evade further scrutiny, the city’s commissioners also voted unanimously to strike a separate ten-year-old rule requiring firearms-safety training for citation officers.278 Both decisions reflected the perceived risks of defying the state: as one Danville official explained, local leaders “don’t know if [they] have a choice” when confronted with the prospect of punitive preemption.279
Some localities have resisted these initial threats only to find themselves roped into private lawsuits authorized under the preemption statute. After KC3 successfully pressured leaders in the small city of Richmond to remove signs barring guns at public parks and pools,280 the group set its sights on a pawnshop ordinance that subjected firearms to various record-keeping requirements.281 Richmond officials rebuffed KC3’s initial request to revise the ordinance, prompting the organization to announce that the municipality would “bear the expense” of litigation.282 The group’s own vice president quickly staged a failed gun sale in a Richmond pawnshop, a move that gave KC3 standing to sue the locality under Kentucky’s preemption law.283 Seven months after the lawsuit was filed, Richmond’s commissioners unanimously agreed to remove firearms from the regulation’s text.284
A similar series of events in Hillview, Kentucky, underscores the potential financial implications of these state-authorized lawsuits. In 2013, KC3 challenged a Hillview ordinance from 1996 that restricted concealed carry in city-owned buildings.285 The trial court invalidated the ordinance, but issued an order denying KC3’s request for $8,472.50 in attorney’s fees, triggering an appeal from the organization.286 That order was reversed in the Kentucky Court of Appeals, which concluded that the state’s preemption statute “mandated” an award of “reasonable attorney’s fees” to the “prevailing party.”287 Hillview’s city council subsequently settled the dispute with a pledge to pay $9,250 in attorney’s fees, an amount higher than the sum that KC3 had demanded in its initial motion.288
Just as in Mississippi, the threat of punitive preemption has exerted tremendous pressure on Kentucky localities seeking to implement or enforce their own firearm policies. With the specter of civil and criminal sanctions looming in the background, many local governments have surrendered as soon as their gun regulations were targeted—and in at least one case, resistance came with a price of thousands of dollars in attorney’s fees and costs.
3. Florida
Recent clashes over local firearm policies in Florida provide yet another powerful illustration of punitive preemption in action. State firearm organizations, using the same tactics as those in Mississippi and Kentucky, have invoked the private right of action in Florida’s preemption statute to push local governments into costly legal battles.289 In one notable example, two gun-rights groups sought to hold Tallahassee and its officials liable for failing to repeal old prohibitions on discharging weapons in certain areas.290 The city had already ceased enforcement of the ordinances to avoid any state-imposed penalties,291 but the litigants insisted that keeping the measures on the books constituted the “promulgation” of firearm policies in violation of the preemption law.292 A state court rejected this argument in Florida Carry, Inc. v. City of Tallahassee,293 an outcome that shielded the Tallahassee officials from sanctions and provided at least some clarity on the conduct proscribed under the statute.294 But the judge declined to address the validity of Florida’s penalty provisions,295 leaving in place a set of consequences with significant “chilling potential” for local lawmakers.296 Moreover, Tallahassee’s hard-fought victory drained over two years’ worth of litigation costs from city coffers.297
Other examples from Florida confirm the prediction that punitive preemption would dissuade localities from testing the viability of new gun laws. In the months before Florida enacted its punitive preemption legislation, Palm Beach County’s Commissioners were developing a proposal to prohibit gun magazines holding more than ten rounds of ammunition.298 But the adoption of the harsh preemption statute “stopped [the initiative] in [its] tracks”: county leaders “dropped the plan entirely” when they realized that the state’s removal provision put their “jobs . . . at stake.”299 This story tracks the events that played out in Coral Gables, where local leaders who had eagerly endorsed a citywide assault-weapons ban “backed down” from the plan after evaluating the litigation risk.300
Two-hundred and sixty miles away in St. Petersburg, the state’s punitive preemption statute derailed local efforts to open public dialogue on firearm issues altogether. Shortly after a mass shooting at an Orlando nightclub claimed forty-nine lives, a St. Petersburg councilwoman requested that local leaders “symbolically support” a nonbinding resolution calling for a special legislative session on gun violence.301 She later “pull[ed] the discussion” from the locality’s agenda on the advice of the City Attorney, who cautioned that even this expressive gesture might trigger severe penalties.302 Only after the Florida Attorney General offered reassurance did the councilwoman feel comfortable raising the issue; until then, she explained, she had feared the repercussions of pursuing “a deeper conversation about sensible regulations.”303 Around the same time, the threat of private lawsuits pushed the Sarasota City Commission to abandon a resolution urging the state legislature to consider tighter assault-rifle regulations.304 Though the proposal enjoyed “unanimous personal support,” local officials were unwilling to take the risk that simply “open[ing] dialogue” and “communicat[ing] . . . public safety concerns” would invite expensive litigation.305
The validity of Florida’s punitive preemption statute was recently tested. Back in 2019, a county circuit court invalidated several of the penalties targeting local officials after more than thirty localities banded together to challenge the measures.306 Much of that victory, however, was fleeting: when the government contested the decision, a state appeals court concluded that the statutory provisions subjecting local officials to private lawsuits and hefty fines were both “valid and enforceable.”307
4. Arizona
The effects of punitive preemption in Arizona are most evident in the state’s constant tug-of-war with Tucson over gun policy. In the decade preceding the enactment of Arizona’s harshest measures, Tucson’s leaders repeatedly pushed to “tighten local restrictions on . . . firearms, only to see state officials exercise their sweeping authority . . . to invalidate [those] efforts.”308
After a 2011 mass shooting in Tucson left seventeen injured and six dead,309 city officials once again pressed forward with a set of more stringent gun regulations.310 This effort culminated in the adoption of a new gun-theft reporting requirement and an ordinance authorizing breathalyzer exams for suspects of certain firearm-related crimes.311 In 2013, the Tucson City Council drew the ire of Arizona legislators when it ignored an Attorney General opinion deeming both laws preempted,312 and it further goaded the state with a resolution proposing background checks for guns sold on city property.313 Viewing this defiance as a sign that existing preemption measures did not go far enough,314 state lawmakers began searching for a more effective means of pressuring the city to stand down.
The result was Arizona’s S.B. 1487,315 which was used almost immediately to target firearm regulations in Tucson. Pursuant to the statute, Arizona State Representative Mark Finchem requested an investigation into a local provision authorizing the police department to destroy forfeited or seized firearms that “failed to serve a law enforcement purpose.”316 Upon completing his investigation, State Attorney General Mark Brnovich notified the city’s leadership that the measure was likely incompatible with the state’s preemption statutes and other relevant laws governing confiscated weapons.317 Tucson officials failed to revise the policy within thirty days, prompting Brnovich to file a special action requesting that the state supreme court address the matter.318
The outcomes of this litigation illustrate the stakes of punitive firearm preemption in Arizona. Tucson officials boldly decided to challenge not only the Attorney General’s findings but also the constitutionality of S.B. 1487, transforming the case into the first test of the law’s legitimacy.319 Ultimately, the city “lost on both counts.”320 The court first rejected Tucson’s argument that the disposal of city-held weapons was a matter of purely “municipal concern,”321 finding instead that the state’s interests in the uninterrupted exercise of its police power justified displacing a local regulation “inconsistent” with Arizona law.322 The opinion went on to affirm the general validity of S.B. 1487 against Tucson’s separation-of-powers challenge, all while sidestepping questions about the severe fiscal penalties outlined for preemption violations.323
When the decision was released, Tucson lawmakers were faced with two options: either repeal the invalidated policy, or defy the court order and risk sacrificing roughly $115 million in state shared funds.324 Local leaders quickly realized that they never had a choice, as Tucson could not afford to lose over one-fourth of its general revenues for asserting its home rule authority.325 The city council accordingly rescinded the firearm-destruction rule,326 ending a practice that had long been understood to serve a vital public-safety function.327
The effects of the opinion reverberate far beyond the Tucson city limits. Arizona’s highest court embraced an extraordinarily narrow view of home rule power under the state constitution, signaling the probable futility of local attempts to pursue a whole host of firearm-related initiatives.328 Further, the rejection of Tucson’s challenges to S.B. 1487—coupled with the court’s refusal to address the validity of the statute’s sanctions—leaves localities with exposure to enormous financial costs in the event that they do exceed their circumscribed authority.329 Summarizing the effects of these threatened fiscal losses, one Tucson official explained that local governments statewide have “seen [their] ability to establish local laws that reflect the values of [their] community placed at risk.”330
The incidents described here represent a mere fraction of the episodes in which the prospect of statutory preemption pressured localities into dismantling or dropping various gun policies. Pennsylvania’s story showcases the consequences of expansive express preemption statutes, which incapacitate local governments seeking to address many gun-related issues. The evidence out of Mississippi, Kentucky, Florida, and Arizona confirms that punitive preemption measures do, in fact, intimidate local governments into submission and chill substantive debate. At bottom, firearm preemption laws severely constrain local action on guns, thereby choking off promising opportunities for comprehensive regulation. Absent a concerted effort to chip away at firearm preemption, these windows for progress will remain unavailable.
IV. Addressing the Obstacle: Avenues for Rolling Back State Firearm Preemption
Equipped with a better understanding of the mechanics and implications of state firearm preemption statutes, advocates and local leaders can take up the task of rolling back these barriers to local firearm policy. This Part canvasses the available strategies for change and highlights key considerations for those interested in charting the path forward. The discussion begins with a focus on the role of litigation, which has emerged as the primary strategy for breaking down state preemption measures both within and beyond the firearms context. After exploring the array of suggested arguments against preemption laws, Section IV.A concludes that opening up opportunities for local gun regulation nationwide will require integrating legal battles into a far broader political push against preemption. Section IV.B accordingly issues a call to action. The discussion there moves past litigation and highlights additional tactics for altering the firearm preemption landscape, which may prove useful in reshaping state-local dynamics across other substantive policy domains as well.
A. Taking Firearm Preemption to Court: The Limits of Litigation
Thus far, most efforts to counteract firearm preemption have been directed at state courthouses. Multiple scholars have suggested legal theories for challenging aggressive state-local preemption generally, and localities have tested a selection of these arguments in lawsuits against their respective states. Rather than diving into the merits of each strategy—a vital project already underway elsewhere331—this Section draws on the available scholarship and state case law to evaluate the potential impact of litigation in dismantling firearm preemption statutes.
The discussion below should be approached with two underlying themes in mind. First, as a background rule, “[e]xisting legal doctrines provide local governments with few protections against state preemption”: federal law “treats state-local relations as almost entirely a matter for the states,”332 and state legislatures enjoy broad power to define the bounds of local authority.333 Second, given the significant state-by-state variation in the structure and regulation of local governments, the viability of many legal challenges will ultimately turn on the intricacies and idiosyncrasies of state law. To determine whether specific state-law claims hold promise, prospective litigants must carefully consider the applicable constitutional provisions, statutory language, and judicial precedent within their own jurisdiction.
As these principles indicate, local litigants seeking judicial invalidation of state firearm preemption laws will generally find that the odds are stacked against them. The nature of the state-local relationship places states at a significant advantage in their defense of express preemption statutes, even when those measures impose expansive restrictions on entire spheres of substantive policymaking. Localities might have slightly better luck against certain punitive preemption measures, but early efforts to attack such laws have yielded mixed results. Collectively, these conclusions point to a single lesson: in the fight against state firearm preemption, the utility of litigation will be limited at best.
This assessment should not be taken to imply that resisting state preemption in court is utterly futile. Local governments may secure important victories under the right circumstances, and litigation often calls attention to pressing public issues regardless of the judicial outcome. But ultimately, legal challenges will be insufficient on their own to unravel sweeping state limitations on gun regulation. Litigation must instead be viewed as a single component within a broader campaign to scale back these barriers to local firearm policy.
1. Challenging Express Preemption
Critics of broad express preemption statutes have primarily considered challenging these laws under federal and state constitutional principles. Their analyses—coupled with relevant examples from the case law—do point to several provisions in state constitutions that could offer hope for litigants. But beyond these limited lines of attack, explicit restrictions on local gun regulations will be exceedingly difficult to nullify in court.
a. The U.S. Constitution
Federal constitutional law offers few, if any, meaningful avenues for contesting the validity of express firearm preemption. This observation reflects the weak status of local governments in the federal system: The Constitution neither recognizes the existence of localities nor safeguards an individual right to self-governance,334 and local entities as such cannot claim constitutional protection from state conduct.335 Local governments are instead treated as “political subdivisions” or “convenient agencies” of the states,336 “no more protected from . . . regulation or displacement than the state’s department of motor vehicles.”337 Consequently, the Constitution affords little security against state laws that bar localities from enacting gun policies. Such preemption typically falls within the state’s vast “discretion” to dictate the “powers conferred” on localities.338
Of course, state authority in this domain is not entirely exempt from federal constitutional limits. Where state action with respect to local governments indirectly burdens individual rights, residents may be positioned to allege constitutional violations.339 These challenges would most likely arise under the Fourteenth Amendment,340 which could render certain types of state preemption measures—for instance, those curtailing local antidiscrimination laws—vulnerable to attack on due process or equal protection grounds.341 Firearm preemption statutes, however, are doubtful candidates for a Fourteenth Amendment challenge, as they typically “lack [the] substantive constitutional implications” or the legislative intentions that such claims require.342 Accordingly, local governments hoping to overcome express restrictions on gun policy must look beyond federal constitutional principles.
b. State Constitutions
The primary grounds on which localities have attempted to challenge preemption statutes “derive primarily from state constitutional law.”343 These claims generally fall into one of two categories: “substantive” arguments alleging home rule violations, or “procedural” challenges targeting the legislative process for a particular preemption measure. State constitutional provisions do offer slightly more favorable pathways for attacking firearm preemption, but their utility will vary across jurisdictions and the outcomes will ultimately be mixed.
Some localities might invoke state home rule provisions to target firearm preemption statutes as intrusions on local autonomy. As a reminder, “home rule” refers to an independent grant of “substantive lawmaking authority” beyond that “provided [under] the traditional . . . regime,” in which local powers were confined solely to those conferred via specific state authorization.344 These home rule grants typically come in two forms: “initiative” endows localities with the power to enact policies without prior state permission,345 while “immunity” protects certain spheres of local authority from intervention.346 A handful of states have embraced “imperio” home rule, a model that combines limited initiative powers with grants of immunity restricting interference in “local affairs.”347 The more common approach, known as “legislative home rule,” bestows broad initiative authority but leaves all local lawmaking susceptible to state override.348
This basic framework is useful in drawing conclusions about the prospects for home rule challenges against express firearm preemption laws. In states that confer only initiative power, such claims are probably futile. Most “legislative home rule” provisions explicitly authorize localities to act so long as their policies are not “in conflict with state law,”349 a condition that leaves states with wide latitude to supplant local regulation. Under this framework, firearm preemption laws likely constitute clear expressions of legislative intent to withhold local control over certain spheres of gun policy. Any local measure purporting to regulate one of those subjects would consequently fall beyond the bounds of local authority,350 stripping the locality of its ability to prevail on a home rule claim.
At least in theory, local governments with “imperio” home rule stand a slightly better chance against firearm preemption measures. These statutes, a locality would argue, impermissibly intrude on “local affairs” in violation of state-conferred immunity.351 Under the typical immunity analysis, a local policy prevails over a conflicting state law only where the latter interferes with purely “local” or “municipal” matters.352 If, however, the inconsistent rules touch on subjects of “mixed” or “statewide” concern, state law supersedes the local regulation at issue.353 The problem is that state courts tend to “interpret[] ‘local’ quite narrowly, thereby severely limiting [localities’] policymaking authority.”354 States need only persuade the court that firearm policy implicates statewide interests—in, for example, public safety or uniformity—to justify displacing local gun measures.
Several opinions underscore the difficulty of securing immunity-based victories over firearm preemption. In Ortiz v. Commonwealth,355 for instance, Pittsburgh and Philadelphia insisted that their respective assault-weapon bans could not be preempted because Pennsylvania’s express restriction on gun policy abridged constitutional home rule.356 The Pennsylvania Supreme Court rejected that argument as “frivolous,” proclaiming instead that firearm regulation is a “substantive matter[] of statewide concern” best handled in “the General Assembly, not city councils.”357 A home rule argument similarly failed in City of Cleveland v. State,358 where the Ohio Supreme Court concluded that the state’s express firearm preemption statute was a permissible “general law” promoting an interest in “uniform” regulation.359 Both Ortiz and City of Cleveland readily endorsed the assertion that firearms implicate questions of statewide concern, effectively foreclosing home rule attacks on the states’ expansive preemption laws.360
As with nearly all matters of state law, the nature of home rule power differs substantially across jurisdictions. Localities, therefore, must evaluate both the relevant constitutional or statutory text and any subsequent interpretations to assess the feasibility of home rule challenges. But as the decisions cited above indicate, courts often refrain from “vindicating local authority” and instead “limit[] the scope” of home rule to narrowly defined spheres.361 Thus, while home rule claims might occasionally prove worthwhile,362 the prospects for defeating firearm preemption on these grounds are seriously limited.
Beyond home rule grants, many state constitutions include “procedural” provisions that outline restrictions for the legislative process. Though such rules are aimed primarily at preventing shoddy lawmaking, they might supply a basis for voiding preemptive laws that fail to meet applicable drafting requirements.363 Roughly thirty-seven states, for example, constitutionally require that legislatures avoid “special” measures singling out specific localities and instead enact “general” or “uniform” laws.364 This sort of “special legislation” clause could be relevant if a firearm preemption statute were to restrict local power selectively,365 but courts frequently “tolerate[] circumvention” so long as the law at issue does not “expressly identify” individual local governments.366 In practice, then, “special legislation” challenges would have little bite against broadly written firearm preemption laws.
Another potentially relevant “procedural” requirement embedded in most state constitutions is the “single subject” clause, which “restrict[s] the subject matter of [a state legislative] enactment . . . to one general topic.”367 Under such rules, a statute “address[ing] preemption of a local ordinance and an entirely unrelated issue” might be “constitutionally vulnerable.”368 This argument was raised successfully in Leach v. Commonwealth,369 where three Pennsylvania municipalities asserted that legislation incorporating a private right of action into the state’s firearm preemption statute violated a constitutional “single subject” provision.370 The legislature had folded the preemption amendment into a larger bill defining new criminal offenses for “theft of secondary metal[s],” leading the Pennsylvania Supreme Court to declare the multisubject enactment “void in its entirety.”371 Though the case affected just one component of the state’s broader gun-policy restrictions, it did provide a buffer against the hostile firearm preemption litigation that other states have authorized.372
These “somewhat obscure procedural requirements” may have “new salience” in the firearm preemption context, as the “haste or lack of transparency” with which such laws are often enacted may render the legislation constitutionally deficient.373 The problem, however, is that a “determined state legislative majority” can simply reenact the same preemption measure in accordance with all mandated procedures.374 Pennsylvania’s legislature, for instance, has already responded to the Leach opinion with a bill limited solely to authorizing private lawsuits for firearm preemption violations,375 demonstrating that victories grounded in procedural provisions will frequently be short lived.
2. Litigating Punitive Preemption
Advocates and scholars have identified a range of potential arguments to neutralize punitive preemption laws, but many of these legal theories remain untested and others have yielded variable results. Given both the severity of punitive firearm preemption and the troubling possibility of its spread,376 a brief exploration of the proposed challenges and their prospects for success is warranted.
The same sort of state constitutional arguments outlined above have been considered in the punitive preemption context. In terms of substantive challenges, some have suggested that home rule claims could have slightly more force when directed at statutes that go beyond merely restricting local power to penalizing governments for overstepping their authority.377 The available case law, however, highlights the difficulty of prevailing on a home rule challenge even when targeting the harshest punitive measures. In the Brnovich litigation,378 for instance, Tucson officials insisted that Arizona’s decision to authorize “withholding and redistributing revenues generated by [local] taxpayers” reflected a “desire” to “punish Arizona charter cities” for the use of their “constitutional [home rule] authority.”379 The Arizona Supreme Court skirted that assertion, resolving the immediate preemption question in the state’s favor and declining to address the law’s home rule implications until penalties were actually imposed.380
Local governments can also parse state constitutions for procedural provisions that provide a basis for targeting punitive firearm preemption laws. The Leach opinion highlighted above, in which Pennsylvania’s citizen suit provision was invalidated under a “single subject” clause,381 illustrates this approach. Another example emerged out of two punitive preemption lawsuits in Florida, where multiple cities have challenged the Governor’s statutory authority to remove local officials responsible for gun policies.382 According to the plaintiffs in both cases, this penalty violated a state constitutional rule that empowers the Governor to suspend county officers but requires a majority vote of state senators to “remove . . . the suspended official” permanently.383 A Florida judge first credited this argument in Marcus v. Scott3842014 WL 3797314. to bar the removal of several Palm Beach County Commissioners who had allegedly committed “knowing and willful violation[s]” of the firearm preemption statute.385 The Marcus court, however, cabined its holding to the County Commissioners’ “as-applied challenge,”386 leaving open the question of whether legislators could authorize the unilateral executive removal of other local officials.387 Five years later, the state trial court presiding over City of Weston v. DeSantis388 answered that question in the negative. Read broadly, the court concluded, the relevant constitutional text “impliedly forbids” the Governor from removing any local officeholder without senate approval.389 The state failed to challenge this specific determination on appeal, and accordingly, the higher court left undisturbed the finding that “authorizing the Governor to remove local officials . . . [was] an unconstitutional expansion of the Governor’s constitutionally enumerated suspension powers.”390
Of course, this outcome reveals little about how the Florida appeals court would have ruled on the merits of the removal issue if given the opportunity. Indeed, in both Leach and City of Weston, the plaintiffs’ victories were contingent on the idiosyncratic circumstances of each case rather than general principles of law. Ultimately, given the extent of state control over local power and the ease with which legislatures can rectify laws to avoid procedural deficiencies, state constitutions furnish litigants with an exceedingly limited toolkit for constraining punitive preemption.
Nevertheless, the penalties imposed for local firearm lawmaking may be vulnerable on grounds beyond those suggested for express preemption alone. Using a rough categorization based on the type of penalty at issue, the next Section considers proposed strategies for taking the sting out of punitive firearm preemption statutes.
a. Challenging Measures that Target Local Officials
Opponents of punitive preemption have pinpointed several “substantial legal arguments” against measures that threaten individual officials with sanctions.391 Many of these proposed challenges are grounded in the First Amendment and its state analogs,392 a reflection of the underlying premise that local lawmaking necessarily entails various “kinds of speech.”393 Some have commented that threatening punishment for local policy choices might “amount to an unconstitutional restriction” on the free speech rights of the officeholders themselves,394 while others contend that these measures indirectly burden “the core political speech of the local electorate” whose chosen representatives are silenced.395
The precise contours of these theories have been explored elsewhere,396 but briefly, the extent to which punitive firearm preemption implicates First Amendment concerns may differ with the characterization of the expressive conduct at issue.397 For instance, litigants who frame the content of a local legislator’s vote as the targeted “speech” in question will be disappointed to find that existing doctrine provides little clarity on whether that activity is constitutionally protected.398 As an alternative, one could shift the focus to the “unique form[s] of public debate that precede[] the passage of a [local] law” and argue that punitive preemption impermissibly stifles “political speech” on the subject of gun policy itself.399 Several episodes described in Section III.B.2 lend anecdotal support to the notion that threatening local officials does, in fact, chill broader firearm-related discourse,400 but litigants bringing First Amendment claims on that basis will find themselves in uncharted legal waters.401 Moreover, several courts have already signaled a general reluctance to endorse speech-based challenges to punitive preemption measures.402
Commentators have also argued that imprecise language may render certain penalty provisions for local officials susceptible to “vagueness” claims under the Fourteenth Amendment’s Due Process Clause. Consider, for example, section 65.870 of Kentucky’s state code, which threatens local policymakers with criminal liability for pursuing any “policy” or “action” that “violates” its firearm preemption law or “the spirit thereof.”403 The statute’s critics contend that this text might be unconstitutionally vague, as officials are left with little clarity regarding the “line at which a suggestion” becomes a “policy” or “action” subject to criminal sanction.404 This argument, however, has not yet been attempted in the Kentucky courts, and judges elsewhere have indicated that punitive preemption measures with sweeping language could withstand facial vagueness challenges.405
Statutory penalties for local officials might also be vulnerable to arguments grounded in legislative immunity, or the long-standing common law principle that elected representatives are shielded from liability for their lawmaking activities.406 Though this protection has traditionally covered state and federal legislators, scholars have identified various grounds for extending immunity to the local level. For example, forty-three state constitutions contain a privilege for state legislators analogous to the federal guarantee that no congressional representative “shall . . . be questioned” for “any Speech or Debate.”407 Though these clauses “do not explicitly protect local legislators,” several state courts have construed this constitutional immunity to encompass both state and local officials.408 Other state judges have embraced the U.S. Supreme Court’s reasoning in Bogan v. Scott-Harris,409 concluding that the rationales for common law legislative immunity justify its application to local lawmakers.410 Finally, “[a] number of states have also extended legislative immunity to local legislators by statute.”411 Local officials could invoke the relevant source of immunity to ward off state-imposed sanctions, but their prospects for success would turn on the strength and scope of the doctrine in their respective states.
The Florida litigation described above exemplifies the uncertainty inherent in such challenges, particularly in states where the principle of local legislative immunity is weak, ambiguous, or underdeveloped. In City of Weston, the plaintiffs asserted that Florida’s provisions authorizing damages and fines for knowing and willful preemption violations improperly abridged the legislative immunity of local officials.412 Such immunity, the plaintiffs argued, flowed from three sources: state common law, federal precedent, and state constitutional separation-of-powers doctrines.413 The trial court embraced a blend of the latter two arguments, concluding that the penalty provisions were inconsistent with both the state’s constitutional structure and Bogan’s suggestion that the “rationales” for “absolute immunity . . . apply with equal force to local legislators.”414
That determination was reversed on appeal. Turning first to the plaintiffs’ state-law arguments, the appellate court reasoned that “legislative immunity”—if it extends to local officials at all—“does not shield individuals who knowingly and willfully act contrary to or beyond the limits of state law.”415 Accordingly, local representatives who adopt firearm regulations cannot invoke immunity to avoid statutory penalties, for any such enactment occurs “in violation of state preemption and thus beyond the scope of state-delegated authority.”416 The appeals court also summarily rejected the plaintiffs’ federal-law immunity arguments, finding that the “citations to federal cases . . . do not apply.”417 As a result, the provisions subjecting local officials to fines and civil liability remain enforceable,418 and Florida has recovered its status as a particularly hostile environment for firearm regulation. Reversal in the Florida Supreme Court, which recently agreed to review the case,419 is exceedingly unlikely.
Given the variation in legislative immunity principles from state to state, local plaintiffs bringing similar claims might fare better in jurisdictions where the doctrine is more robust. But City of Weston stands out as the most prominent test of immunity-based challenges to date, and the failure of those arguments on appeal—along with the possibility that courts in other states will find the appellate opinion persuasive—marks a serious blow for localities seeking strategies to invalidate punitive preemption measures.
b. Challenging Measures that Penalize Local Governments
Nullifying state provisions that penalize local governments for preemption violations will be an even more difficult task. Some scholars and jurists have posited that free-speech principles might be implicated when sanctions imposed on localities stifle public debate,420 but local governments will likely find that invoking the First Amendment—whether “for themselves or as associations of their residents”421—is an unattractive litigation strategy. The Supreme Court has already rejected the notion that municipal corporations can bring First Amendment claims on their own behalf,422 and arguments relying on an association theory remain virtually untested.423
State separation-of-powers doctrines have also been cited as potential grounds for challenging the enforcement mechanisms in several punitive firearm preemption laws. Professor Erin Scharff, for instance, argues that these statutes occasionally direct the branches of state government to encroach on one another’s powers.424 Tucson officials raised this exact sort of argument in Brnovich, where they contended that Arizona’s protocols for addressing preemption violations contravened constitutional separation-of-powers principles.425 The city specifically alleged that S.B. 1487, which authorizes the Attorney General to investigate preemption questions, undermined the judicial role in determining “whether a municipal law violates state law.”426 Moreover, in Tucson’s view, the directive that the Attorney General file a “special action” for judicial resolution of inconclusive preemption inquiries arrogated the executive branch’s “inherent constitutional power[] . . . to decide what cases to bring.”427
Arizona’s highest court was ultimately unpersuaded.428 Relying on a narrow construal of the procedural mandates in S.B. 1487, the opinion concluded that the legislation created a framework for “incentiviz[ing] political subdivisions to comply with state law” without “usurp[ing] executive or judicial authority.”429 This rejection of Tucson’s separation-of-powers arguments, Scharff explains, may “bode[] poorly for the success of such challenges elsewhere.”430 The decision highlights the uncertainty in relying on state separation-of-powers principles that are “much less developed than [their] federal counterpart[s],” and it suggests that localities “may not be best positioned to contest” the relationships between state-level branches of government.431
The First Amendment and separation-of-powers arguments outlined above are perhaps the most frequently discussed theories for challenging penalties aimed at localities,432 but a closer look at these arguments makes clear that the “case for protecting local governments from punitive financial penalties” is a “difficult” one to build.433 This concession ultimately reaffirms the notion that litigation, on its own, will be an insufficient tool for eliminating the civil, criminal, and financial sanctions that many localities and their officials face when gun regulations are deemed preempted.
The discussion above reveals several important conclusions for the fight against firearm preemption that are worth summarizing here. First, broad express preemption statutes—even those purporting to occupy whole fields of gun regulation—will be extremely difficult to nullify. State constitutional law does offer more hope than do federal principles, but the strength of such claims will likely turn on nuanced state-by-state variations in the language and interpretation of the relevant provisions. Second, in the punitive preemption context, claims targeting measures that penalize local officials may hold more promise than do those aimed at sanctions for local governments. But the arguments against penalties for individual officials remain underdeveloped, and the outcomes have been mixed in the small sample of cases that have tested some of these claims.
Again, the conclusion to be drawn here is not that advocates and officials should eschew litigation entirely in their efforts to open up space for local firearm lawmaking. The outcomes in Leach and Marcus indicate that lawsuits can yield occasional successes under the right circumstances, particularly where a specific state’s precedents, constitutional text, or statutes are favorable to a locality’s position. Additionally, even when local plaintiffs fall short on the merits, litigation often serves as a valuable tool for generating public awareness. The City of Weston lawsuit in Florida has certainly done so,434 and Pittsburgh’s refusal to back down in a recent legal skirmish over several gun proposals produced a similar effect.435 Such lawsuits put state governments on the defensive, forcing them to justify expansive firearm preemption laws while under popular scrutiny.
Risky litigation, however, is simply not an option for many local governments. Lawsuits are a resource-intensive endeavor, and the potential costs of a protracted legal fight may be too high a price to pay for pursuing challenges with uncertain prospects. Many localities would resolve this cost-benefit assessment against litigation, and those that do choose to press their legal claims will inevitably encounter mixed outcomes. The takeaway, then, is that litigation must be treated as just one of many tactics for pushing back against severe state restrictions on gun policy. Strategic politics were largely responsible for the rise of aggressive state firearm preemption, and strategic politics will be indispensable in reversing that trend.
B. A Call to Action: Anti-Preemption Politics
Shortly after the Parkland shooting described at the outset of this Article, city officials in Boulder, Colorado, passed a local ordinance prohibiting assault weapons and high-capacity magazines within city limits.436 Gun owners in the area promptly sued the municipality, and in March 2021, a state court invoked Colorado’s sweeping firearm preemption law to void the citywide ban.437 State Democrats, who controlled the Colorado legislature, immediately initiated discussions on potential revisions to the preemption statute.438 Those talks accelerated when, just days after Boulder’s ordinance was struck down, a shooter used an assault rifle to kill ten individuals in one of the city’s supermarkets.439
It is impossible to determine whether the invalidated regulation would have prevented the attack, but this series of events prompted public outrage and drew national attention to the state’s preemption law. As noted above, the Colorado legislature ultimately responded with a broad repeal of its expansive preemption statute, preserving only a few narrow prohibitions on local lawmaking that alleviate certain compliance-related burdens for gun owners.440 The result is a regulatory framework that empowers local governments to craft solutions for their distinct firearm-related needs, while leaving the state legislature free to supplant local law in policy areas where centralized regulation would be more effective. Meanwhile, in Colorado locales where firearm restrictions remain unpopular, local officials need not enact any gun laws of their own.
The Colorado story suggests that shifting a substantial degree of firearm regulatory power back to local governments will require looking beyond the courthouse walls and treating aggressive state preemption as a leading political issue. Activists and officials must set their sights on pressuring state legislators to reconsider, revise, and repeal expansive preemption laws, a goal that will require cultivating broader popular support and taking advantage of democratic processes. Generating the necessary political momentum will, of course, be an extraordinarily difficult task, but proponents of local gun policy do have an array of tools at their disposal for launching a sustained offensive against state firearm preemption.
A critical prerequisite in the fight against firearm preemption is an informed public. With a deeper understanding of “legislative trends and the negative implications of [preemption] laws,”441 citizens can more effectively identify “aggressive preemptive tactics” and articulate demands for change.442 The developments in Colorado certainly generated a degree of national awareness concerning state-level preemption, and activists there cited the March 2021 shooting to describe the stakes of the proposed repeal in terms that would resonate with the public.443 But activists and policymakers need not wait for a similar mass tragedy to strike before educating constituents about the costs of expansive firearm preemption in their home states.
Moreover, when residents are made familiar with the consequences of firearm preemption, larger majorities might reject state efforts to strip localities of their authority over guns. Recent examples lend some support to this proposition. A survey in Nebraska, for instance, revealed that sixty-two percent of Nebraskans—including “the majority of gun owners and poll respondents from both major parties”—would oppose a proposed bill updating the firearm preemption statute to include a citizen suit provision.444 Other anecdotal examples have emerged in Pennsylvania, where several organizations are disseminating information about the costs of firearm preemption to mobilize the state’s electorate against a punitive statutory amendment.445 Similar efforts to direct public attention toward firearm preemption will be essential in creating sufficient pressure for change at the state level.
Cultivating a political appetite for the relaxation of firearm preemption laws will also require shifting dominant public narratives around the issue. Specifically, activists and local officials must work to counteract the “pro-preemption” message embedded in the “rhetoric of . . . conservative legislators and organizations,”446 who insist that restrictive state laws “prevent . . . an incomprehensible patchwork of local ordinances” and protect the “Second Amendment rights” of “unsuspecting gun owners.”447 The National League of Cities has already offered some suggestions for “reshaping” the typical preemption story, noting that municipalities can “take an active role” in pushing the public conversation “away from ‘cities are out of control’ [toward] ‘cities help the state.’”448 In the firearm context, that dialogue-shifting effort could center on some of the political and regulatory benefits of local policymaking outlined in Part I: states that permit localities to pursue their own gun-related agendas will foster innovation, defuse polarization, and encourage responsiveness to community-specific preferences and problems.
Beyond working to alter public messaging around firearm preemption, local governments—particularly large cities—can thrust demands for change into the spotlight through overt acts of local resistance. This strategy would capitalize on what Professor Paul Diller describes as cities’ capacity to “serve as a ‘destabilizing’ force in state and national policy debates, disrupting the state legislative and congressional stasis on policy matters of significance.”449 If large municipalities take high-profile steps to “put [the] issue” of firearm preemption “on the nation’s policy agenda,” then “state legislatures may feel more compelled to address it.”450
Certain forms of resistance can be pursued on an individual city-by-city basis. For instance, in states where municipal officials do not run the risk of triggering punitive sanctions, local leaders can enact prohibited gun regulations that signal their strong opposition to firearm preemption. These unenforceable policies are best understood as “‘protest’ laws,” or measures that are “passed without a good-faith belief in their viability, purely for the political or expressive value of doing so.”451 The Pittsburgh ordinances described earlier in this Article offer a compelling illustration: Though city officials anticipated that a renewed assault-rifle ban would embroil the city in a “long legal fight,” they insisted that adopting the measure would call attention to the consequences of Pennsylvania’s sweeping preemption law.452 Given the national media’s interest in following the Pittsburgh story, that calculation appears to have been correct.453
Pittsburgh’s leaders, however, also recognize the value of strength in numbers, and they have called for the very sort of municipal coalition-building that will be vital in orchestrating collective resistance to state firearm preemption. Mayor Bill Peduto has issued several public statements urging “cities around the country” to express “support [for] Pittsburgh’s measures” with the goal of “creat[ing] nationwide momentum [for] . . . critically needed gun changes.”454 Pittsburgh officials have also contacted sixty other mayors to collaborate on the introduction of similar local legislation elsewhere.455 Former Tallahassee Mayor Andrew Gillum initiated a similar project, launching a campaign that united local leaders across multiple states to raise awareness about state preemption issues.456 These efforts suggest that many city leaders already possess the political will to champion or join an organized push against firearm preemption, and sustained coordination among those officials would ensure that their demands are not easily ignored.
Of course, public awareness and local resistance will not automatically translate into concrete gains against state firearm preemption. To secure the expansion of local authority over gun regulation, organizers must channel increased political momentum into processes through which state law can be modified. For example, voters, localities, and advocacy groups can urge legislators to introduce or enact broad repeal bills like the one in Colorado.457 Firearm interest groups are working overtime to stymie debate on such legislation,458 but their efforts could be rebuffed with a critical mass of public support in favor of repeal measures. Voters and local officials can also call for statutory amendments carving out reasonable exceptions to expansive preemption laws, an approach that might be more viable where state legislative majorities are hostile to the notion of repeal.
As an alternative, activists in states where ballot initiatives are permitted can employ that mechanism to place the rollback of state firearm preemption measures squarely before the electorate.459 Increased participation in other forms of direct democracy may also give voters greater influence over the scope of preemption laws. Finally, those committed to an “ambitious[]” agenda for the long-term expansion of local power can “keep[] an eye on the potential for . . . state constitutional change,” which would entrench and reinforce statewide commitments to “local innovation” in gun policy and beyond.460
Again, the fight to scale back state firearm preemption laws will undoubtedly be an “uphill battle.”461 But as Pittsburgh’s Mayor recently argued in his appeal for mobilization around the issue, “it’s a battle that has to happen, and it has to start somewhere.”462 The strategies outlined above should prove useful in heeding his call.
Conclusion
Officials in Pittsburgh, Coral Gables, Hillview, Tucson, and the other localities mentioned in this Article represent just a handful of the local leaders eager to address firearm preferences and concerns within their own communities. Many of these policymakers rightly acknowledge that local governments—whether rural or urban, large or small, predominantly Democrat or mostly Republican—are uniquely situated to effectuate changes in gun policy. When empowered to pursue gun regulations beyond those enshrined in state and federal law, localities can accommodate diverse views, target the most salient local problems, and develop fine-grained and creative solutions. Localities hold substantial promise as critical sites for progress on a range of gun issues, especially in an era of intensifying partisan polarization and persistent gun-related public health challenges.
In the vast majority of states, however, extensive statutory restrictions on local gun laws severely curtail the available opportunities to fulfill that promise. Firearm preemption statutes have dramatically reduced the variety and scope of local gun regulations nationwide, and several states are currently debating proposals to increase the severity of these laws.463 A small number of localities and activists have sounded the alarm on this state of affairs, but significant changes in the firearm preemption landscape will remain out of reach absent broader political mobilization around the issue.
This Article should serve as a starting point for audiences interested in the work of scaling back state firearm preemption laws. Furnished with a thorough understanding of these statutes and their implications, organizers and officials can better navigate preemption provisions within their respective states and identify pressure points for change. To be sure, chipping away at firearm preemption statutes will be a tremendously difficult task. But those committed to the pursuit of comprehensive gun regulation should nevertheless prioritize the anti-preemption project, for doing so will be indispensable in realizing the immense potential of local firearm policymaking.