Since the two latest high-profile mass shootings in Dayton, Ohio, and El Paso, Texas, politicians and pundits have slipped into the typical and often frustrating back-and-forths regarding gun control. Senate Majority Leader Mitch McConnell has said that the Senate will address guns in its September session, but control measures (such as universal background checks or assault weapons bans) seem unlikely to pass a Republican-controlled Senate.
The last time the federal government limited the ownership of guns was in 1994 when it banned assault weapons. (The ban expired in 2004). Since then, any effort to pass gun control legislation has been blocked by congressional Republicans. Consequently, the onus has fallen on states and municipalities to regulate firearms.
But political polarization has led to a disconnection between states and cities, which has made gun control at the local level become even harder to pass. American cities have become consistently liberal. Of the 100 biggest counties in the U.S., 88 voted for Hillary Clinton in the 2016 presidential election. But “red states” and even some “blue states” are still under the control of Republican legislators, and state authority overrides municipal authority.
For decades, many liberal municipal governments, frustrated with inaction on the part of state and federal Congresses, have tried to enact gun control measures themselves. To shut such attempts down, state legislatures have passed what are called “preemption” laws.
The general definition of a preemption law is one that is passed by a higher government (a state) to limit the power of a lower government (a municipality). Express preemption laws declare that a municipality cannot enact ordinances pertaining to a certain subject, while implied preemption laws are interpreted to the same effect by a court. Preemption laws are not limited to gun control—they’ve been used by the states to combat a variety of local progressive efforts, such as raising the minimum wage or prohibiting fracking near schools and hospitals. However, gun control preemption laws are widespread. Only five states (New York, New Jersey, Massachusetts, Connecticut and Hawaii) have not passed any such laws. All of the others have some sort of statewide measure in place to limit the power of local governments to regulate guns. Some preemption laws even punish local officials who try to enact gun control with fines and/or jail time. For instance, in Kentucky, a mayor can be jailed for up to a year for voting on a local gun control ordinance.
Anti-gun control preemption laws first began in 1981, when Morton Grove, Illinois, passed a city ordinance banning the possession and sale of handguns. The National Rifle Association sued them and the case was taken to the Illinois Supreme Court. (The Supreme Court refused to hear the case). Though the Illinois Court ruled in favor of Morton Grove, the NRA began gearing up to sue other municipalities who were in potential violation of preemption laws. Said one NRA spokesman, “Before Morton Grove, a lot of people thought we were nuts to say that someday a community might take away an individual’s right to own a handgun… The law realized our members’ worst possible fears. Immediately after it passed we saw a tremendous increase in donations and a significant rise in political activity by our members.” The NRA still frequently sues municipalities that it suspects to have violated a preemption law.
— NRA (@NRA) August 8, 2019
Another organization that helps uphold gun preemption laws is the ALEC, or the conservative American Legislative Exchange Council. They write “model bills”, or bills that are distributed to and passed by state legislatures across the country, subtly advancing the Council’s agenda. They write and largely support preemption bills, including ones related to gun control.
We convene thousands of state legislators every year to advance real state-based solutions. We’re emboldened, not intimidated. You should be too. https://t.co/77TPjed4uS
— American Legislative Exchange Council (@ALEC_states) July 19, 2019
Some notable current examples of preemption include: in 2017, officials in Richmond, Virginia, were allowed to ban bats, knives, shields and poles from a white nationalist rally organized shortly after the violence at Charlottesville. However, the officials couldn’t ban guns from the rally because of Virginia’s preemption law.
Also in 2017, Okaloosa County, Florida officials attempted to ban guns, trampolines, and bounce houses from beaches, parks, and other recreation spots. Florida’s preemption law forced them to lift the firearm ban, though the bans on bounce houses and trampolines went into effect.
In 2012, the Colorado Supreme Court ruled that the University of Colorado’s ban on guns in campus buildings violated Colorado’s preemptive concealed carry law.
Preemption bills are the result of the political power of the NRA and the ALEC, as well as GOP-controlled state legislatures. But they also stem from inaction on the federal level that has left gun control to states and cities. If Congress would pass gun control bills themselves, cities likely wouldn’t feel the need to do so, and state preemption bills would become irrelevant.
Image via Wikimedia Commons.