Why Firearm Federalism Beats Firearm Localism
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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
359](ViewImageLocal?handle=hein.journals/yljfor123&div=15&collection=&method=preview&ext=.png&size=3)
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Why Firearm Federalism Beats Firearm Localism
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