A Note on Preemptive State Gun Laws

by Charles C. W. Cooke

Arizona Central reports:

House Bill 2517, sponsored by Rep. Steve Smith, R-Maricopa, would impose fines on cities, towns and their lawmakers who enforce gun ordinances stricter than the state’s own laws.

The bill would impose a civil penalty of up to $5,000 on city and town governments that violate the statute. It would also allow the state to sue individual government officials such as city councilors and would prohibit them from using public funds to defend themselves in court.

Republicans say the bill is a response to attacks on 2nd Amendment rights, and that cities and towns answer to the state.

“Municipalities have no business enacting gun laws. Period,” said Rep. Justin Pierce, R-Mesa.

But Democrats say it is unfair to impose such strict laws upon cities, especially when lawmakers often complain that the federal government oversteps its boundaries in state matters.

First reaction? That it is downright hilarious to watch Democrats complain about centralized authority riding roughshod over local government. That’s their party’s whole schtick! Suffice it to say that if the Left is to openly disparage the powers of the states and the localities in the name of more uniformly applied individual protections, one would expect the standard to apply in all areas — especially in the case of an enumerated constitutional right that has been deemed to apply to all levels of government. One really can’t have it both ways: If central authority is good because it prevents rogue local authorities from depriving individuals of their basic freedoms in general, then it’s good here. No?

That having been said, I flinched a little the first time that I read Representative Pierce’s assertion that “municipalities have no business enacting gun laws.” In this instance, I think he’s probably right. As a general rule, though, I would take the opposite view: holding that municipalities are in fact the very best places for laws to be made, tested, and obeyed; and that keeping as much as possible as local as possible is the best way of ensuring that dissenters can choose somewhere else to live without having to leave the country.

The trouble with this view in the modern area, though, is that even in a reasonably small-government place such as Arizona, the sheer size of the state has ruined much of the virtue of local variation. If we lived under only a few laws, the live-and-let-live ideal inherent to localism would be infinitely more profitable. Phoenix could have stricter smoking laws while Tempe boasted looser ones; Boston could have a sales or hotel tax while Springfield politely declined; Boise could try out a certain school curriculum and compare it to the diametrically opposed one in Meridian. But there are an awful lot of rules now, and this has effectively made local control a tool that is only truly useful in the hands of the authoritarian.

Why? Well, the reason that “lawmakers often complain that the federal government oversteps its boundaries in state matters” is that the rules that are set by the federal government ultimately afford lawmakers in the states only one option: to add to them. Which is to say that in our hyper-governed and overly centralized age, regulation works only one way. No state is able to tell Washington that it will be operating with a minimum wage that is lower than the federal one; many, however, may elect to pass higher thresholds. No state is permitted to opt out of federal regulations; every legislature, however, is free to make them stricter. And when it comes to guns, the story is no different at the state level: “municipalities’ rights” always means that the progressive town in Idaho gets to prevents its citizens from carrying firearms in the manner to which the state’s other citizens are accustomed and never means that the conservative town in Massachusetts gets to opt out of that state’s stricter rules. Sure, that’s the nature of the beast: the way that power works in America. But it doesn’t have to be the way that politics works in America. Indeed, one can appreciate and respect that the federal government and the states can preempt the localities without suggesting that they should. And make no mistake: this would be a wildly different and more diverse place if they didn’t.

Republicans can be grotesquely hypocritical on the questions of local control and of federalism, and they should be called out on it more often. But in this case I think that the Arizona House has a point: That being that if conservatives are going to live in a country in which so much is preempted from the center, surely they should get to do some of the preemption when they control the levers of power and, too, to use the one tool they have left to push their agenda? This, it seems, is precisely what they are doing here — and unashamedly. Given that the state’s firearms regulations are among the loosest in the country, it seems reasonably clear that municipalities could almost certainly tighten up the rules a little without running afoul of the courts. (As it stands, at least, Arizona is only required to obey the Heller and McDonald decisions, to follow the 9th Circuit’s various rulings fleshing those decisions out, and to abide by federal law. This it does, and much more besides.). But why should they be allowed to? Local control in this instance isn’t local control at all: it’s a one-way street that gives nothing to one side and everything to the other. Maybe it will do those who have spent so much of the last century undermining the point of both federalism and localism some good to see what happens when their project falls into hands they dislike . . .

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