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Cities Are Fighting Back Against State Preemption Policies on Local Gun Control Laws

There is brimming triangular tension between local, state, and national governing bodies about how cities should best protect their citizenry from gun violence.
Protesters carry placards and shout slogans during a demonstration calling for greater gun control outside the U.S. Embassy in south London on March 24th, 2018.

This month, members of the South Carolina House of Representatives made it clear that they don't want anyone's hands on their guns—not national leaders, and certainly not local ones. To keep Washington's interference at bay, representatives introduced a bill that would let the state consider seceding from the country if the federal government were to start confiscating legally purchased firearms. But they also launched an inward-facing attack, introducing a "Second Amendment Protection Act" that would enforce extra punishments on cities that act to "restrict [gun] access beyond that which is provided by state law."

South Carolina already has harsh state preemption policies that weaken localities' ability to pass their own gun regulations, as do 42 other states. So why is it passing a new one?

The answer may lie in a bold piece of legislation passed this December by the city of Columbia, in what has become the most recent manifestation of a city-state battle over guns—waged while the federal government sits most of it out.

After the October Las Vegas shooting, Washington waffled over whether to ban bump stocks, the attachment that made the killer's weapon so deadly. As Congress spluttered and stalled, Columbia was the first United States city that acted unilaterally to ban their use within city limits. The bill was narrow in scope, crafted to evade the state's existing preemption law.

But based on language in South Carolina's new bill—which seems explicitly written to invalidate the Columbia provision—perhaps it won't be narrow enough for long. Columbia's law initially avoided state preemption by arguing bump stocks aren't firearms nor firearm "components" at all; simply attachments that can turn the smallest semi-automatic into a rapid-fire, continuous shooting machine. The proposed Second Amendment Protection act subtly changes the sorts of weapons localities are prevented from regulating, replacing the vague term "components" with a firm "accessories." Under this new definition, Columbia's ban would never have passed.

South Carolina's new, extra-strong (albeit retroactive) preemptive strike is only the latest move by states to curb local regulation on guns. But state laws skew pretty permissive, and, according to recent polls, more than 60 percent of Americans agree that gun control needs to be more strictly enforced nationwide. In the majority of states, you can buy a handgun before you can drink. In three states, you can buy a long gun before you can vote. In eight states, there's nothing to stop people from bringing conceal carry weapons into K-12 schools. Assault rifles can be sold freely in 43 states, and only Massachusetts and California have state-level bump stock regulation.

To challenge these sweeping allowances, some cities are quietly—and elsewhere, loudly—pushing their own gun reform agendas. In March, Lincoln, Nebraska, followed Columbia to become the second city to ban bump stocks. (City council members called the ban a largely symbolic move, but one that brings them closer to becoming a safer "city of law and order.") And on April 3rd, Deerfield, Illinois, passed a bill prohibiting the possession, sale, or manufacturing of assault weapons and high-capacity magazines—to the dismay of the National Rifle Association. Gun owners in the city have until June 13th to get rid of their assault rifles, or face steep fines.

Columbia Mayor Steve Benjamin will take the helm of the U.S. Council of Mayors as president in May, and has already expressed a commitment to making city-level gun control a priority. He's been strategizing with mayors from Little Rock, Arkansas; Chattanooga, Tennessee; and Orlando, Florida, which just voted to join the lawsuit against Governor Rick Scott over preemption. "I think you're going to see an interesting, thoughtful wave of policymaking [next year]," Benjamin said. "Creative policymaking, and litigation strategies that will allow us to do our jobs."

Litigation strategies might soon be key, because states aren't accepting these rebellions without a fight. In addition to curbing Columbia gun control copycats, the South Carolina House's new act also adds punitive measures for municipalities or counties that disobey: If found in violation of the state preemption clause, the state treasurer would be "prohibited from disbursing funds appropriated by the General Assembly to [their] Local Government Fund."

South Carolina's proposed retaliation toward dissident cities closely resembles measures the Florida state legislature took in 2011. There, state lawmakers have the right to remove any municipal leader from office (and personally fine them $5,000) if they come even close to pushing gun reform legislation within city limits. In response, mayors across South Florida, including South Miami and Miramar, are suing their state for the right to instate measure like banning assault rifles in parks, without fear of penalty. These examples are perhaps some of the most aggressive, but hardly unusual: Under Kentucky's 2012 Revised Statute, firearm preemption violations are "criminalized," meaning mayors can face misdemeanor charges for voting on local regulation, and could be jailed for up to a year. Tennessee local officials can be sued for preemption violations raised in their cities.

"[Preemption is] happening in your state," wrote mayors from Pittsburgh, Tallahassee, and Portland this March, in a joint op-ed in USA Today. "And it's happening because lobbyists and special interests know it's easier to influence a few state lawmakers in 50 state capitols than thousands of local mayors and city councils." (It's easier still to influence a few policymakers at the federal level, which has contributed to a national chilling effect.)

"We've got to challenge this bullshit," Benjamin said. "This is bad law, bad policymaking, and it's endangering people's lives. If we don't speak up, then who will?"

It's the voices of national leaders that have been quietest, said New Orleans Mayor and U.S. Council of Mayors President Mitch Landrieu at a USCM press conference in Washington, D.C. Despite President Donald Trump's initial statements indicating a surprising willingness to defy the NRA—"Take the guns first, go through due process second," he suggested in February—efforts to ban assault rifles or limit the age requirement have gone nowhere, fast.

Standing alongside fellow mayors and police chiefs gathered recently to strategize around police reform, Landrieu lamented federal under-involvement on gun control, but also immigration enforcement, and local police funding—and simultaneously condemned many states' overreach. His comments got at this brimming triangular tension between local, state, and national governing bodies: There's a frustration that mayors must take on financial and logistical burdens to fill in federal gaps, mingled with a belief that city leaders should be the ultimate arbiters of peace in their communities—not the state, nor the president. "Mayors think we can handle our business very well," Landrieu said.

"The most important issue that confronts us every day ... is how to keep the people of our cities, our cities, and our communities safe. That is our No. 1 priority, and it is our sacred obligation," he continued. What's unfortunate is "[t]hat we don't have a more active, aggressive, and compassionate partner" in Washington."

Bump stock regulation may well be the first place such a partnership is strengthened. In March, Jeff Sessions announced he would be pushing his own bump stock ban through the Department of Justice (DOJ), with the support of Trump—and without the support of Congress. "This proposed rule is a critical step in our effort to reduce the threat of gun violence that is in keeping with the Constitution and the laws passed by Congress," Sessions said. If the DOJ avoids legal battles likely to arise from its reinterpretation, federal law may be more closely aligned with Columbia's than South Carolina's. And just as state law trumps local law, federal law will trump the state's.

This story originally appeared on CityLab, an editorial partner site. Subscribe to CityLab's newsletters and follow CityLab on Facebook and Twitter.