123 Yale L.J. F. 359 (2013-2014)
Why Firearm Federalism Beats Firearm Localism

handle is hein.journals/yljfor123 and id is 251 raw text is: 


















MICHAEL P. O'SHEA


Why Firearm Federalism Beats Firearm Localism


    Americans   are increasingly polarized on gun rights and gun policy, leading some
 scholars to ask  whether   the  Second  Amendment provides a tool to manage
 disagreement and promote  decentralization. Joseph Blocher's Firearm Localism takes
 up this perspective and makes a case for deference to local and municipal gun control
 laws, including the revision or repeal ofstatewide firearms preemption statutes. In this
 Essay, Professor O'Shea  argues that neither judicial tradition nor the priorities of
 contemporary  urban gun  owners support such deference. Moreover, unlike traditional
federalism, Blocher's  localism would  undermine   the compromise   value  that was
supposed  to be decentralization's strength: the prospect of piecemeal local regulation
could  threaten the practical exercise of gun rights even in generally pro-gun areas. In
short, if one adopts a decentralizing approach  to the Second Amendment, then its
proper form  is a conventional, state-based federalism backed by preemption.


    Americans   disagree  persistently on gun  policy, and the disagreement   tends
 to follow geographic   and cultural lines. Beginning   with  this premise,  Joseph



 1.  Increased polarization has been the central feature of recent American gun control politics.
     States such as New York and Connecticut enacted extensive new restrictions on ownership
     of common firearms in the wake of the atrocious mass murder in Newtown, Connecticut,
     while some southern and western states responded by easing restrictions on carrying
     handguns for self-defense in schools and other places. See Jack Nicas & Joe Palazzolo, Pro-
     Gun Laws Gain Ground: Since Newtown Massacre, More States Ease Regulations than Bolster
     Them,   WALL     ST.   J.,  Apr.   4,   2013,   http://online.wsj.com/news/articles
     /SB10001424127887324883604578398843653264474. Some states are even beginning to
     revisit their state constitutional guarantees of the right to arms in order to strengthen the
     level of scrutiny courts must apply to gun restrictions. See LA. CONST. art. I, § 11 (reflecting a
     2012 amendment to require that any restriction on th[e] right [to keep and bear arms] shall
     be subject to strict scrutiny). The divergence on gun rights may reflect a broader American
     trend toward political polarization along state lines. See Dan Balz, Red, Blue States Move in
     Opposite Directions in a New Era of Single-Party Control, WASH. POST, Dec. 28, 2013,
     http://www.washingtonpost.com/politics/red-blue-states-move-in-opposite-directions-in
     -a-new-era-of-single-party-control/213/12/28/9583d922-673a-11e3-ae56-22deo7214oa2


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