Key Takeaways
- Most states have laws that preempt local gun regulation, so cities in those states generally cannot adopt their own firearm licensing, carry, or zoning rules.
- Punitive or "hyper" preemption goes further, exposing local governments and officials to penalties such as loss of state funds or private lawsuits for even enacting preempted gun rules.
- Second Amendment sanctuaries can decline to help enforce federal gun laws under the anti-commandeering doctrine, but under the Supremacy Clause they cannot nullify those laws, which federal agents can still enforce.
Can a city pass its own gun laws if the state legislature disagrees? And can a county declare that federal gun laws simply do not apply within its borders?
In this TalksOnLaw Brief, Darrell A. H. Miller, now the Harry N. Wyatt Professor of Law at the University of Chicago Law School and a co-founder of the Duke Center for Firearms Law, explains how firearm preemption works, why some states have added penalties aimed at local officials, and what "Second Amendment sanctuaries" can and cannot accomplish.
State Preemption of Local Gun Laws
Professor Miller explains that gun preemption laws are usually state statutes that prevent local communities, often but not exclusively big cities, from having their own set of gun regulations. They are quite common, particularly in states with strong gun-rights legislatures. In Joel Cohen's hypothetical, a pro-gun-rights state like Texas might use preemption to keep a more liberal city like Austin from tightening gun rules. Professor Miller notes that some preemption laws, depending on how they are written, can collide with other state constitutional provisions, such as guarantees of discretion for state universities. Usually, though, they are upheld, and there is little a city that wants tighter rules can do. Measured by their goals, he says, these laws are incredibly effective: major urban centers in some states have essentially no ability to regulate firearms, and rules stay uniform statewide regardless of geography or population.
Punitive Preemption
Professor Miller distinguishes ordinary preemption, such as a single statewide licensing rule for concealed carry, from what is called hyper preemption or punitive preemption. Under these laws, it is not enough that a locality cannot enforce its rule. Local governments can be threatened with the loss of state financial support, or with private litigation, for even having unenforceable laws on the books. In his view, these laws punish local authorities, and the voters who elect them, for attempting to regulate at all.
Second Amendment Sanctuaries
A Second Amendment sanctuary runs in the other direction, between a state or locality and the federal government. Jurisdictions that view certain federal gun laws as unconstitutional declare they will not help enforce them. Professor Miller explains that this does not nullify federal law, because the Supremacy Clause makes federal law supreme. What sanctuaries can rely on is the Tenth Amendment's anti-commandeering doctrine, which bars the federal government from commanding state and local officials to enforce federal law. Using a hypothetical federal ban on "red guns," he explains that a sanctuary sheriff might be barred from calling the FBI or making an arrest, but federal agents, such as the ATF, would remain fully able to enforce the law themselves.
What to Know Now
The landscape Professor Miller describes remains largely in place. Most states continue to preempt local firearm regulation, and in Fried v. State (2023), the Florida Supreme Court upheld the penalty provisions of Florida's preemption statute against a challenge brought by dozens of local governments. On sanctuaries, the courts have drawn the line he describes. In United States v. Missouri (2024), the Eighth Circuit held that Missouri's Second Amendment Preservation Act, which declared certain federal gun laws invalid and penalized local agencies whose officers helped enforce them, violated the Supremacy Clause, and the Supreme Court declined to review the case in 2025. The anti-commandeering principle of Printz v. United States remains good law, so states may still decline to lend their officers to federal enforcement. Supporters of preemption value consistent rules for gun owners who travel across a state, while critics argue it keeps communities from responding to local conditions.
