Firearm localism.

• Author: Blocher, Joseph
• Position: II. The Case for Firearm Localism B. The Pragmatic-Balancing Approach to Second Amendment Localism through Conclusion: Directions for Second Amendment Localism, with footnotes, p. 121-146

2. The Pragmatic-Balancing Approach to Second Amendment Localism

   Dissenting in both Heller and McDonald, Justice Breyer did not discount the importance of the kind of historical analysis set out above. But, he concluded in Heller, determining whether a particular gun control law is constitutional requires a sensitive weighing of "practicalities, the statute's rationale, the problems that called it into being, its relation to those objectives--in a word, the details." (203) Rather than focusing exclusively on historical analogues of modern gun control laws, Justice Breyer endorsed an interest-balancing inquiry, "with the interests protected by the Second Amendment on one side and the governmental public-safety concerns on the other, the only question being whether the regulation at issue impermissibly burdens the former in the course of advancing the latter." (204) In doing so, he noted that urban areas "have different experiences with gun-related death, injury, and crime than do less densely populated rural areas" and that "the linkage of handguns to firearms deaths and injuries appears to be much stronger in urban than in rural areas." (205) He argued that "any self-defense interest at the time of the framing could not have focused exclusively upon urban-crime-related dangers." (206) Though other elements of Justice Breyer's dissenting opinion seem to have prevailed in the approaches actually used by lower courts, (207) his emphasis on urban problems has not. This Section argues that it can and should.

   Justice Breyer's effort to take account of how well a gun control law serves particular government interests can be thought of as a "balancing" test, (208) and is essentially a form of means-end scrutiny. The traditional tiers of scrutiny all involve some degree of interest-balancing, (209) as does the "reasonable regulation" test that state courts have overwhelmingly applied to state-level constitutional guarantees of the right to keep and bear arms. (210) Such an approach incorporates some degree of deference to legislatures, which, as Justice Breyer put it, "have primary responsibility for drawing policy conclusions from empirical fact." (211)

   It is easy to see how the pragmatic-balancing approach could incorporate the urban/rural divide. As noted above, (212) the costs of gun violence and the government interest in preventing it are generally higher in urban areas than in rural areas. (213) This is partly the result of poverty, gangs, and the "ecology of violence" they create. (214) Other unavoidable characteristics of urban life--higher population density, for example--increase gun-related risks. Stray bullets are more likely to hit a bystander where there are more bystanders to hit. Indeed, proximity to individuals acquiring firearms is inversely correlated with feelings of safety, (215) and densely populated urban areas obviously involve greater proximity to other people, including those acquiring firearms. Whatever the root causes of urban gun violence, gun control is more likely to be constitutional in cities than in rural areas, since the problems it addresses are especially prevalent in the former.

   One might say in response that the balancing approach requires (and perhaps permits) no local tailoring for the simple reason that the approach itself will capture any relevant geographic variations. If a particular urban area faces a genuine problem with gun violence and can demonstrate the strength of its interest in gun control, then the test will take account of that without giving any separate weight to the jurisdiction's urban-ness. Indeed, urban tailoring might often be the result of balancing rather than a component of it. But balancing need not be entirely ad hoc; balancers often develop and employ heuristics to reflect the wisdom of prior balancing. (216) The city limits can be one such guide.

   The distinction between historical categoricalism and pragmatic balancing should not be overstated--in practice, the two approaches seem to have merged in various ways. (217) As Allen Rostron notes, "Without clear or complete guidance from the Supreme Court, lower court judges have proposed an array of different approaches and formulations, producing a 'morass of conflicting lower court opinions' regarding the proper analysis to apply." (218) There seems to be general agreement that "historical meaning enjoys a privileged interpretative role in the Second Amendment context." (219) But precisely what that role should be is a matter of more robust debate. (220) For example, one might conclude that the historical tradition of gun control suggests the constitutional relevance of an urban/rural distinction, and that the pragmatic balancing approach provides a mechanism with which to apply it.

   3. CONSTITUTIONAL AND STATUTORY LOCALISM

   The arguments thus far have been largely internal to the Second Amendment. But firearm localism has implications for--and draws support from--broader developments and arguments in constitutional law. It also provides strong historical and normative support for the revision or repeal of strict state laws preempting local gun regulation. Such laws not only represent a break from our longstanding tradition of firearm localism, they unnecessarily prevent urban areas from addressing their unique problems of gun violence. This final Part considers both the federal constitutional backdrop and the state statutory foreground.

1. Localism and Constitutional Rights

   It is often said that incorporated constitutional rights apply identically to all levels of government. (221) In McDonald itself, the Court rejected the argument that state gun regulations might be subject to a more forgiving standard of scrutiny, (222) concluding that its jurisprudence "decisively" creates a "well-established rule that incorporated Bill of Rights protections apply identically to the States and the Federal Government." (223) But despite the frequency with which it is invoked, the supposed rule of uniformity is neither universally applicable nor universally desirable. For all the reasons discussed above, the Second Amendment presents a particularly strong case for advocates of constitutional localism, and simultaneously draws strength from that broader framework.

   Mark Rosen has provided perhaps the most extensive support for the argument that "geographic nonuniformity of constitutional requirements and proscriptions is a mainstay of American constitutionalism." (224) He notes that "constitutional rights are defined in part on the basis of community expectations and considerations" (225) and that "It]he most fundamental lesson is that courts already possess doctrinal tools for accommodating idiosyncratic but valuable communities." (226) Perhaps the most prominent doctrinal example-which, as explained below, may have particular salience for the Second Amendment (227)--is the First Amendment's treatment of obscenity. Under longstanding free speech doctrine, obscene materials are said to fall outside the boundaries of constitutional protection. (228) The definition of obscenity, however, incorporates "community standards." (229) And those standards are not national, nor even state, but local--a "juror is entitled to draw on his own knowledge of the views of the average person in the community or vicinage from which he comes." (230) The Court has emphasized that "[i]t is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City." (231)

   Some other federally guaranteed rights manifest themselves differently in different places. For example, the "property" protected by the Due Process and Takings Clauses is a product of subnational law. Indeed, such constitutionally protected entitlements are "'not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law....'" (232) Whether these state-created interests "rise[] to the level of a 'legitimate claim of entitlement' protected by the Due Process Clause" is a question of federal constitutional law. (233) In Town of Castle Rock, Colorado v. Gonzales, for example, the Court considered whether a person had a property interest in police enforcement of a restraining order against her husband. (234) Resolution of that issue, the Court recognized, "begins ... with a determination of what it is that state law provides. In the context of the present case, the central state-law question is whether Colorado law gave respondent a right to police enforcement of the restraining order." (235) The Court concluded that it did not. But in another state, with different laws, the federal claim could have prevailed.

   Other examples of geographically dependent tailoring incorporate more directly the kinds of interest-balancing described in Section I.C. Time, place, and manner restrictions, for example, are geographically tailored, and speech can also be broadly regulated in particular areas such as schools, (236) airports, (237) and military bases, (238) which might well be the kinds of locations Justice Scalia had in mind when he said that the Second Amendment permits the regulation of guns in "sensitive places." (239)

   Each of these examples can be explained based on considerations specific to the right at issue, but they are also buttressed by strong arguments for localism itself--arguments that are not limited to any particular constitutional right. As David Barron explains:

   There is a value in ensuring that local jurisdictions have the discretion to make the decisions that their residents wish them to make. The value inheres in the traditional advantages that attend decentralization. These include more participatory and responsive government; more diversity of policy experimentation; more flexibility in responding to...