It was after midnight on February 15. Valentine’s Day had ended, but there were still roses in the gift shop when two men hobbled into Via Christi Hospital St. Joseph in Wichita, Kansas, each with a bullet wound in the thigh. One of them explained to police that he had a concealed-carry handgun license, and that he’d been drinking at the Shot Time II bar when he’d accidentally fired a bullet through his own leg and into the leg of the man sitting next to him.
Kansas law used to prohibit CCH license holders from bringing their guns into bars, but then in 2007 the state legislature quietly changed the rules, resulting in confusion for both patrons and proprietors. Now, unless the bar conspicuously posts a “no guns” sign, licensed carriers may bring their concealed weapons inside. A longstanding Sedgwick County law bans guns, concealed or not, from all bars, but that ordinance no longer means anything; the state has stripped municipalities of their authority to regulate most aspects of gun ownership and use. This type of legislation is called preemption, and it influences nearly every community’s relationship with guns—not just in Kansas but throughout the U.S.
Such laws reflect a divide not only between those who favor expanded gun rights and those who oppose them, but also a geographical divide between policymakers. Metropolitan communities (where most gun crimes occur) tend to have a different perspective about gun rights and gun violence than their more rural surrounds. Laura Cutilletta, senior staff attorney at the Law Center to Prevent Gun Violence, said the specific crime problems in communities often lead to locally tailored solutions—which can’t be implemented if they’ve been preempted by state law.
“It used to be that local governments all across the country could regulate what was best for their community when it came to firearms,” Cutilletta explained. “And then the NRA went on this campaign to convince states, one by one, to restrict that authority. And they were very successful. Over the years—a couple of decades—almost every state has preempted local regulation of firearms. What the states are doing now is introducing laws that make preemption more broad.”
When Illinois passed a law last year that created a concealed-handgun permitting process, the legislation included a preemption clause to prohibit cities like Chicago from passing their own ordinances restricting concealed carry. Now, Sheriff Tom Dart of Cook County (which includes the Windy City) is concerned that hundreds of people with criminal records have been cleared for concealed carry by the state, and there’s little he can do to stop ex-convicts from legally carrying concealed weapons in his jurisdiction. Dart even found that 12 of Illinois’s certified concealed-carry instructors have criminal backgrounds.
Cook County isn’t the only urban community hamstrung by preemption. In an effort to reduce one of the highest homicide rates in the U.S., community leaders in St. Louis have pursued countless crime-reduction initiatives—youth outreach, employment programs, and mental-health services—everything but gun reform, which is beyond their purview. Through a series of preemption measures beginning in 1984, the Missouri legislature has systematically stripped city and county governments of the authority to regulate guns.
Last month, the Missouri senate approved a bill that would remove the last bit of local authority to regulate firearms—a municipality’s prerogative to decide where and how gun owners can openly carry their weapons in public. The bill would also lower the minimum age to get a concealed-carry permit from 21 to 19, allow designated teachers or administrators to carry guns in schools, and nullify federal gun laws. Anyone attempting to enforce a federal gun law that has been “declared invalid” by Missouri could be jailed for up to one year. When the bill moved through committee, the only dissenting vote came from Senator Jamilah Nasheed, who represents St. Louis.
If SB 613 becomes law, Missouri would join a growing list of states that have passed nullification legislation, none of which is likely to survive scrutiny in the courts. Most of these bills are modeled on a 2009 Montana law, which was invalidated last year by the U.S. Ninth Circuit Court of Appeals.
“The bill is unconstitutional,” said Rebecca Morgan of the Missouri chapter of Moms Demand Action for Gun Sense in America. “But even if it’s found to be unconstitutional, Missouri is a state where every bill is severable. That means that, even if a court finds part of it unconstitutional, the rest remains. And there are so many things in this bill that we find reckless.”
Former Ohio Governor Bob Taft saw firsthand how the debate about gun policy pits rural communities against bigger cities. “There’s very strong support for gun rights in Ohio. Unfortunately, there’s also a certain amount of crime, particularly in the large urban centers,” Taft said. “We have over 900 municipalities in Ohio, and often conditions and circumstances differ from one to another, so there’s a rationale for local governments to craft their own legislation. So that’s an argument for providing some flexibility to the local governments with regards to gun laws.”
Taft vetoed Ohio’s 2006 preemption bill, but senate leaders in his own Republican Party overrode the veto—the first time an Ohio governor’s veto had been overridden in nearly three decades. Then, when Cleveland sued the state in an (ultimately unsuccessful) effort to evade preemption, the National Rifle Association stepped in, joining the suit as defendant-intervener. The gun lobby warned of dire consequences if Cleveland won the lawsuit and regained the authority it had enjoyed for more than a century: “Gun owners living in Ohio … could lose their ability to legally protect themselves and their families.”
The NRA frames its support of preemption as an effort to simplify “a complex patchwork of restrictions that change from one local jurisdiction to the next.” There are just too many different ordinances, they say, which could be confusing or inconvenient to gun owners.
“I can travel 30 minutes from my home and travel through four jurisdictions,” explained Kansas State Rifle Association President Patricia Stoneking, who testified in support of a new preemption bill that would eliminate what little local authority remained after Kansas passed a preemption law in 2007. “How am I to know what the law of all those jurisdictions say? What their individual ordinances are? Uniformity in all firearms laws is the most prudent action to take.”
But does that ideal—uniformity in all firearms laws—apply across state borders? Should all U.S. states conform to one set of federal firearms laws?
Of course not. “The federal government has no authority to regulate firearms—period,” Stoneking said.
Perhaps the preemption debate isn’t about resolving jurisdictional disputes or sorting out the finer points of federalism after all—it’s mostly about expanding gun rights and removing as many restrictions as possible. “There are lots of areas where home rule certainly applies,” Stoneking said. “But this is not one of them. Not when it comes to an unalienable, natural, God-given right for people to protect themselves.”
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