Firearm Localism

By Blocher, Joseph | The Yale Law Journal, October 2013 | Go to article overview

Firearm Localism


Blocher, Joseph, The Yale Law Journal


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. …

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