The big 45.
Durham, N.C. — On Monday, the day after President Obama gave an Oval Office address endorsing restrictions on assault weapons, Supreme Court Justice Clarence Thomas argued that such “categorical bans on firearms that millions of Americans commonly own for lawful purposes” are unconstitutional.
But the case that drew Justice Thomas’s objection actually suggests a way forward in the broader debate about gun rights and regulation: enhanced local control.
Joined by Justice Antonin Scalia, Justice Thomas was dissenting from the Supreme Court’s decision not to review an appellate court decision upholding a ban on high-capacity magazines and certain semiautomatic rifles. Justice Thomas’s dissent focused on the content of the law. But it is also important to note that the law he was discussing was passed not by the federal government but by the city of Highland Park, Ill
Although the gun debate is national in scope, a vast majority of gun regulation happens at the local level. In 2010, the Supreme Court held that these regulations, like federal law, are subject to the Second Amendment.
But as Judge Frank Easterbrook of the United States Court of Appeals for the Seventh Circuit explained in the Highland Park case, the Constitution not only guarantees rights, but also “establishes a federal republic where local differences are cherished as elements of liberty, rather than eliminated in a search for national uniformity.”
His point is one that has traditionally appealed to political and constitutional conservatives.
Local concerns have always played a role in navigating the boundary between gun rights and gun regulation, a fact that should be of special significance to originalists and others who care about constitutional history. Perhaps no characteristic of gun control in the United States is more longstanding and sensible than the stricter regulation of guns in cities than in rural areas.
In the founding era, many cities — Philadelphia, New York and Boston prominent among them — regulated or prohibited the firing of weapons and the storage of gunpowder within city limits. Nineteenth-century visitors to Wild West towns like Dodge City, Kan., and Tombstone, Ariz., could not lawfully bring their firearms inside the city limits. In fact, the famed shootout at Tombstone’s O.K. Corral was incited in part when a member of the Clanton gang was accused of violating the town’s prohibition on carrying firearms in public places. Outside of towns, guns were less regulated and more prevalent for self-defense and other purposes.
This kind of geographic tailoring offers some political and constitutional solutions to the current stalemate. Justice Thomas is absolutely right that millions of Americans own AR-15s and other guns, commonly defined as assault weapons.
But why should the prevalence of these guns in rural areas — where they might be put to lawful uses like hunting or target shooting — establish their legality in urban areas, where the targets tend to be human? It may be difficult to tell responsible gun users in rural areas that they cannot carry a particular firearm because, 1,000 miles away, someone might use a similar gun to commit murder. But it is equally hard to tell inner cities racked with violence that they must permit access to those weapons so that ranchers can use them on the range.
Local gun regulation is not and never was a perfect solution to gun violence, nor is it a substitute for federal and state reform. Some issues, like a comprehensive background-check system and efforts to stem the interstate traffic of illegal guns, are best dealt with at the national level.
The primary legal obstacle to such local self-governance is not the Second Amendment, but the “pre-emption” laws adopted in most states over the past few decades, largely in response to pressure from the National Rifle Association. With varying stringency, these laws limit or prohibit cities from passing their own gun regulations. But now that the Supreme Court has clearly recognized a right to keep and bear arms, handgun bans are off the table and states are free to modify or eliminate unnecessary requirements of uniformity among their municipalities. And they should.
To be sure, as Judge Easterbrook recognized, the Second Amendment restricts “the scope of permissible experimentation by state and local governments.” Cities cannot ban the core of the right to keep and bear arms any more than the constitutional right to same-sex marriage. But constitutional rights are not always geographically uniform — the test for identifying obscene speech, for example, relies in part on “community standards.”
The Supreme Court (including Justices Thomas and Scalia) has emphasized that the right to keep and bear arms — like all other constitutional rights — is subject to regulation. There is no reason that regulation must be identical in Montana and Manhattan. While advocates of reasonable gun laws fight for solutions in Congress, they should also look to Highland Park.
Daddy, how many of those little dots are there in the whole bathroom?