Firearm localism.

• Author: Blocher, Joseph
• Position: Introduction through II. The Case for Firearm Localism A. The Historical-Categorical Approach to Second Amendment Localism, p. 82-121

INTRODUCTION I. AMERICA'S TWO GUN CULTURES A. Rural Gun Culture B. Urban Gun Control Culture C. Why the Division Matters II. THE CASE FOR FIREARM LOCALISM A. The Historical-Categorical Approach to Second Amendment Localism B. The Pragmatic-Balancing Approach to Second Amendment Localism III. CONSTITUTIONAL AND STATUTORY LOCALISM A. Localism and Constitutional Rights B. Against Preemption C. Objections and Answers CONCLUSION: DIRECTIONS FOR SECOND AMENDMENT LOCALISM INTRODUCTION

The image of hardy, frontier-dwelling Americans defending themselves and their families with guns has long captured the imaginations of the public, scholars, commentators, and at least one very important vote on the Supreme Court. (1) Though modern urban areas like Chicago and Washington--the cities whose handgun bans were struck down in the Supreme Court's two recent Second Amendment decisions (2)--have arguably strayed from it, (3) the vision of armed self-defense in frontier towns remains a powerful archetype. The legal reality, however, was more complicated. Nineteenth-century visitors to supposed gun havens like Dodge City, Kansas, and Tombstone, Arizona, could not lawfully bring their firearms past the city limits. (4) In fact, the famed shootout at Tombstone's O.K. Corral was sparked in part by Wyatt Earp pistol-whipping Tom McLaury for violating Tombstone's gun control laws. (5) Matters were entirely different outside of town, where guns were both legal and prevalent for self-defense and other purposes. (6) The city limits themselves thus played an important role in defining the scope of the right to keep and bear arms.

The not-so-wild West is representative in this regard. Indeed, perhaps no characteristic of gun control in the United States is as "longstanding" (7) as the stricter regulation of guns in cities than in rural areas. In the Founding era, many cities-Philadelphia, New York, and Boston prominent among them--regulated or prohibited the firing of weapons and storage of gunpowder within city limits, (8) even while the possession and use of guns and gunpowder were permitted in rural areas. That geographic tailoring has remained largely consistent in the two centuries since, and it is no accident that District of Columbia v. Heller (9) and McDonald v. City of Chicago (10) both involved municipal gun regulation.

This Article argues that future Second Amendment cases can and should incorporate the longstanding and sensible differences regarding guns and gun control in rural and urban areas, giving more protection to gun rights in rural areas and more leeway to gun regulation in cities. Part I describes the significant differences between urban and rural areas with regard to the prevalence, regulation, perceived importance, use, and misuse of guns. Violent gun crime and support for gun control are heavily concentrated in cities, while opposition to gun control is strongest in rural areas, where the costs of gun crime are lowest. Rural residents are far more likely to own firearms than people living in cities, and have more opportunities to use them for lawful activities like hunting and recreational shooting. These differences, while certainly not universal--not every city has stringent gun control, (11) nor do all rural residents oppose it--are so stable and well-recognized that they have calcified into what are often referred to as different gun "cultures." (12)

But while this cultural divide is well-established and long-standing, it rarely figures prominently in discussions of constitutional doctrine, and rarer still is it seen as an opportunity rather than an obstacle. This is unfortunate and unnecessary, because Second Amendment doctrine already contains the tools with which to achieve geographic tailoring. Heller and McDonald left the contours of Second Amendment doctrine fuzzy, aside from approving a set of "presumptively lawful" gun control measures. (13) The opinions did, however, suggest two major jurisprudential alternatives: one rooted in historical analysis, the other in interest balancing. (14) Part II shows how either road can lead to a locally tailored Second Amendment. (15)

First, the majorities in Heller and McDonald endorsed a historical-categorical approach that evaluates contemporary gun control measures based on whether they have "longstanding" historical analogues. (16) This approach is categorical in that it eschews interest-balancing, focusing on line-drawing rather than cost-benefit analysis. (17) Lower courts applying it have looked not just to Founding-era regulations, but to the broad sweep of gun control throughout American history. (18) Under this historical-categorical approach, the fact that the United States has a deeply rooted tradition of comparatively stringent urban gun control is an argument for treating contemporary urban gun control as, if not "presumptively lawful," (19) at least meriting special deference. As noted above and described in more detail below, (20) cities have traditionally enacted the country's strictest gun control measures, including handgun bans, safe storage requirements, limits on public carrying, and prohibitions on shooting guns within city limits. To be sure, the historical record is neither complete nor uniform. But it appears to be at least as persuasive as the evidence supporting other Second Amendment rules specifically approved by the Court in Heller-the ban on felons in possession, for example. (21)

Judges and scholars have questioned the wisdom and coherence of the historical-categorical approach, (22) and many lower courts seem to have shelved it in favor of the pragmatic balancing described by Justice Breyer in his Heller dissent. (23) The latter, which has much in common with the standards of scrutiny found in other areas of constitutional law, evaluates the constitutionality of gun control laws based on the strength of the governmental and private interests involved and the degree to which a given law serves the former while protecting the latter. (24) Here, too, the case for local tailoring of Second Amendment analysis is straightforward, for the simple reason that cities and rural areas generally have different gun-related interests and face different gun-related challenges. (25)

Part III broadens the frame by showing how ongoing debates about the general virtues of constitutional localism are relevant to firearm localism and vice versa. Some constitutional rights are already locally tailored, (26) and a growing number of scholars have explored and celebrated the role of localism in constitutional law. (27) Of course, the question of whether any particular right should be locally tailored is ultimately a specific and normative one, (28) which is why the argument for firearm localism is built on a foundation of geographic tailoring that is unique to gun rights and gun control. But the broader case for constitutional localism confirms that this would not mean treating the Second Amendment as some kind of second-class right.

Section III.B shows how localism arguments would impact not only federal constitutional doctrine, but also state law. Over the past few decades, most states--acting largely in response to local-level handgun bane (29)--have passed laws forbidding or simply limiting municipal gun control. (30) These preemption laws do not reach all cities, nor do they forbid all gun control, so a localized Second Amendment would have significant reach even under current law. But many of the arguments for Second Amendment localism also suggest that broad preemption laws are an undesirable break from historical practice. Especially in the wake of Heller and McDonald, which constitutionally guarantee the rights that preemption laws purport to protect, the laws themselves can and should be modified or repealed.

Of course, there are various objections, some of them quite strong, to the idea of firearm localism. One might argue that increased deference to urban gun control would undermine the self-defense rights of people living in high-crime inner cities. Or perhaps instead of achieving too much, firearm localism would be crippled from the start by the practical difficulty of defining urban and rural areas. Section III.C attempts to answer these and other objections.

Other potential questions and objections can be answered preemptively by clarifying what this Article does not argue. Firearm localism would not exempt cities from the Second Amendment, nor would it permit evisceration of the right to keep and bear arms for self-defense. It would instead mean giving cities extra leeway with regard to matters like the regulation of assault weapons or concealed carrying. Conversely, firearm localism is not an argument against all state or national gun control. As with any other issue, there are some matters that cannot be regulated effectively at the local level (31)--manufacturing requirements, for example-and others that can, such as public carrying rules that can be enforced on the spot by local police.

The Article concludes by showing how firearm localism might address ongoing Second Amendment debates regarding the regulation of assault weapons and concealed carrying. With regard to the former, Heller holds that the "Arms" protected by the Amendment are those in common use, but does not explain how to separate protected arms from proscribable "dangerous and unusual weapons." (32) Firearm localism would rely on local standards to make that distinction, just as First Amendment doctrine does when separating obscenity from protected speech. (33) It would also justify increased deference for urban prohibitions of concealed carrying-such laws have long been accepted as constitutional, (34) and have a special claim on constitutionality in cities. (35) Either of these specific forms of tailoring would help preserve the firearm localism that has always been a part of our legal tradition.

1. AMERICA'S TWO GUN CULTURES

   Though sizeable majorities of...