Preemption and Firearm Laws

The U.S. Constitution's Supremacy Clause provides that federal law is the supreme law of the land, permitting federal law to preempt (or invalidate) state law. Most federal gun laws, however, do not preempt state action -- providing a floor rather than a ceiling. For example, the federal Gun Control Act provides that: “No provision of this chapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State …” This has allowed states to “experiment” with a wide variety of more restrictive laws, while ensuring that minimum standards (albeit relatively weak ones) apply everywhere. Unfortunately, the same is not true for local gun laws. In the 1980s, the National Rifle Association identified the enactment of state laws preempting localities from enacting their own gun laws as its top legislative priority. Today more than 40 states preempt all or some local gun laws. The inability of most localities to enact a wide variety of gun laws is especially troubling. There are approximately 30,000 firearm-related deaths in the United States annually. These deaths are not evenly distributed through the population. Firearm-related homicides are more prevalent among Blacks and in urban areas. Preemption prevents cities from fully responding to their specific firearm violence problems and has generally served to stifle innovation.