Firearm Preemption Laws

An Interview with Professor Darrell Miller of Duke Law School

Joel Cohen (Host): Hello and welcome to Talks on Law, I’m Joel Cohen. Today we’ll be learning about something called Firearms Preemption Laws, and we’re joined by a constitutional law scholar, Professor Darrell Miller of Duke Law School. Darrell, I guess, why don’t we jump right in. What are gun preemption laws? 

What are gun preemption laws? 

Prof. Darrell Miller: Right, so gun preemption laws are usually enacted by states that essentially prevent local communities, oftentimes but not exclusively in big cities, from having their own set of gun regulations. That’s what we mean by preemption. 

Joel Cohen (Host): So these are laws that prevent other laws?

Prof. Miller: That’s right. Now there’s also preemption that happens between the federal government and the states. But usually when we’re thinking about preemption-at least when I think about it- I’m about states, for example, that will say that local communities can’t have their own licensing rules, that they can’t have their own zoning rules about guns. 

Joel Cohen (Host): Before we get in the weeds, how common are these gun preemption laws? 

Prof. Miller: Pretty common. Anywhere that you typically have sort of a gun rights legislature, those gun rights legislatures with things like permitless carry, for example, will also have enacted some kind of preemption laws that prevent the local communities in those jurisdictions from passing their own gun laws. So it’s actually quite common. 

Hyper/Punitive Preemption

Joel Cohen (Host): I’m making this up, but I’m imagining Texas is a very pro-gun rights state, and Austin, for example, might be a little bit more on the liberal side. This would be a way for the state legislature to make sure that the city wasn’t taking away gun rights.  

Prof. Miller: Right, right. Now, one way of understanding it is that, you know, a city like Austin or a city like Houston or a city like Tucson just has a different kind of set of problems with regard to guns. And, you know, there’s a set of arguments that, well, maybe they need a little more flexibility because they don’t have the same kinds of gun culture, the same kinds of gun problems as, you know, more rural areas. But essentially what this does is it takes that kind of discretion away, and sometimes the discretion is taken away in quite a punitive way. So there’s this phenomenon in the modern era, what’s known as hyper preemption or punitive preemption, where it’s not enough that the locality just can’t enact the law. They’re actually punished by threats of removing their local financial support by the state or threatened by private litigation for even having unenforceable laws on the books. 

Joel Cohen (Host): These seem like pretty creative legal structures. I mean, creative so much so that some have even been found to be constitutional or illegal. 

Prof. Miller: Yes. So some of the preemption laws, depending on how they’re written, might actually, you know, suffer from either, you know, local or other kinds of constitutional requirements. So for example, to the extent that some states have guarantees about state universities and discretion for state universities to make their own decisions about guns, some of these preemption laws might violate those kinds of provisions, but usually they're found to be constitutional and usually there’s not a whole lot that a local jurisdiction, like a city that wants to have tighter gun regulation, there’s not a whole lot they can do about being preempted by the state. 

Joel Cohen (Host): Just to look at the mechanics a bit, is this, do these preemptions laws make, let’s say I pass a municipal code banning a certain type of guns, does the preemption law nullify or invalidate that municipal regulation, or does it make it some type of a crime that I passed the law? 

Prof. Miller: Yeah, well, I mean, that’s the difference between what we might think of as ordinary preemption, where the state says, look, we’re gonna have a statewide licensing rule about concealed carry. And so no local jurisdiction can have its own rules as opposed to what, again, is sometimes called hyper preemption or punitive preemption, where it’s really about punishing local government authorities and the constituents that actually elect them for even deigning to actually have, you know, a different idea about what the needs of a gun regulation are at the local level. So you’re absolutely right. 

Joel Cohen (Host): So don’t even think about it. 

Prof. Miller: Some of these hyper preemption provisions, you know, are in, they’re called punitive preemption for a reason. It’s because they’re designed to punish local communities that might try to enact or fail to repeal otherwise unenforceable preemptive provisions. 

Effectiveness of preemption laws

Joel Cohen (Host): How about the impact? Can you walk through, are these types of laws effective in tying the hands of city officials?

Prof. Miller: Well, I mean, they’re incredibly effective in the sense that if the goal is to ensure that local communities don’t have an ability to tailor regulations to local needs, or if the goal is to make sure that statewide regulation is uniform throughout the state, no matter geographical or population differences, it’s incredibly effective because essentially, major urban centers in some states have absolutely no ability to do any kind of regulation with respect to firearms. 

Second Amendment Sanctuary

Joel Cohen (Host): One thing that I read about in prep for this chat is something called a Second Amendment Sanctuary. What is that? 

Prof. Miller: Right. So this is an important difference. This is the idea as between a state or a local government and the federal government, that these jurisdictions won't enforce federal law. So this is typically a gun rights community that thinks that federal law is unconstitutional and essentially declares the community to be a Second Amendment sanctuary. There’s quite a bit of misunderstanding about what that does. It doesn’t nullify the law, that is, the states and localities are not in a position because of the supremacy clause to say that federal law doesn’t apply to them. But there’s a corresponding idea from the 10th Amendment, known as the non-commandeering doctrine, which essentially means that the federal government can’t command state and local officials to enforce federal law. So what this means is that if there’s a federal law and there’s a Second Amendment sanctuary, the federal government is going to have to use its own resources, you know, its own FBI, ATF, other agents to enforce federal priorities in the absence of cooperation from the state. 

Joel Cohen (Host): Interesting. So I’m gonna make something up. Let’s say the federal government passes a law prohibiting red guns. All red guns are now banned in America in this Second Amendment sanctuary jurisdiction, let’s say North Carolina, this state has decided we’re not gonna spend any resources seizing these guns. 

Prof. Miller: Right. So what this would mean in your hypothetical about the, you know, the prohibition on red guns is, you know, it really would matter about like who identified the person with the contraband weapon. So in a sanctuary jurisdiction that essentially says that the local government can’t help federal officers, then I suppose if the county sheriff pulls over somebody and sees a red gun lying in the backseat, they are prevented from getting on the phone and calling the FBI or certainly arresting the person themselves. So you can see that, you know, in your hypothetical, this can make law enforcement quite difficult to the extent that there is any gap between the kinds of regulations that exist at the federal level and regulations that exist at the state level. Now, just for clarity, if that person was pulled over by, for example, a member of the ATF or somebody had appeared into the window of the car, you know, outside a federal courthouse and saw the red gun there, that law enforcement official, a federal law enforcement official would have absolutely every right to prosecute this hypothetical that you’re talk about.  

Can preemption laws nullify federal law?

Joel Cohen (Host): We talked about preemption laws and we talked about Second Amendment sanctuaries but none of these, am I right, permit states or regional governments to nullify federal law? 

Prof. Miller: Right. No, none of these sort of sanctuaries or these preemption laws allow a state to essentially nullify federal law because the supremacy clause of the United States Constitution says that federal law is supreme. So to the extent that, you know, the federal prohibition on guns in the hands of felons, for example, doesn’t have a comparator in the state, and they want to try to nullify that, that just doesn’t work. It’s still a crime under federal law, and you could still be prosecuted under federal law, any kind of law of the state, notwithstanding. 

Joel Cohen (Host): Darrell Miller is a professor of law at Duke Law School and the co-director of the Duke Center for Firearms Law. Darrell, thanks for your time. 

Prof. Miller: Thank you.