The Regulatory Review links a paper by Joseph Blocher of Duke University arguing against state preemption laws that prohibit more restrictive gun control statutes by cities and counties than instituted by the state itself.  The paper is entitled “Cities, Preemption, and the Statutory Second Amendment.”

He argues:

As a practical matter, though, nothing has done more to shape contemporary gun regulation than state preemption laws, which fully or partially eliminate cities’ ability to regulate guns at the local level. Although the claim is admittedly hard to prove, it is likely that these preemption laws—nearly all of which were adopted in the past forty years—have kept more gun regulations off the books in the past two decades than has the Second Amendment in more than two centuries (including in the nearly 1,500 cases filed since Heller). In effect, preemption laws restrict gun laws in precisely the places—cities—where they are most viable16 and provide broader protection for the right to keep and bear arms than the Constitution has ever done.

Further, he remarks:

… some states have enacted strict prohibitions. These laws, which Blocher deems “unmistakably partisan,” attach penalties to local attempts to regulate. Republican-controlled legislatures have enacted statutes that threaten local officials with fines, loss of funds, and removal from office. In Florida, for example, local leaders who impermissibly regulate firearms can face a $5,000 fine and personal liability for up to $100,000 in damages.

As long as the law encourages increased liberty, we like state preemption laws.  They are a good thing, and they will continue to expand to other states where they don’t currently exist.  This blog is well known as devoted second amendment absolutists, and so when someone proposes a scholarly fisking of our doctrines, we take notice.  He cites Heller’s “approval of longstanding forms of gun regulation” (page 17) and flatly states that local ordinances are “entitled to some respect, either for its own sake or as a proxy for collective wisdom.”  Collective wisdom has nothing whatsoever to do with God-given rights, nor the rights recognized in the constitution.

To begin with, we have long held that Heller was a weak decision.

Heller offers a Second Amendment cleaned up so that it can safely be brought into the homes of affluent Washington suburbanites who would never dream of resistance-they have too much sunk into the system–but who might own a gun to protect themselves from the private dangers that, they believe, stalk around their doors at night. Scalia commonly touts his own judicial courage, his willingness to read the Constitution as it stands and let the chips fall where they may. But Heller is noteworthy for its cowardice.

The common formula for absolving Scalia of problems and weakness in Heller is to claim that it was the best he could get out of the court, or otherwise, it was the beginning of a development in legal doctrine, the balance of which had to be developed and applied in lower courts before it could be carried any further.  But it is still noteworthy that neither Heller nor McDonald recognized the right to self defense with weapons outside the home.

Also, note that the term “recognized” is used above.  Rights are God-given, and the constitution on this paradigm is a covenant between government and the people, not a source of rights.  Since Scalia supplies a tip-of-the-hat to some gun control laws (he doesn’t mention which, how many, what locations, or anything else) this has in turn supplied 2A detractors with a never ending fountain of replenishment to attack the 2A any time and everywhere they can.  Even the author made hay of this on page 21 when he stated that “Heller itself indicates that concealed carrying of firearms is not even covered by the Second Amendment.”

But regardless of the fact that we see weakness in Heller, Mr. Blocher’s claims fall short.  The legal community is reading too much Stanley Fish and Jacques Derrida today and not enough history.  They have forgotten how to argue and craft rhetoric.  The best and most defensible way to read the 2A is to remember the lives of the men who wrote it.

“1. John Adams John Adams, as a 9-or-10-year-old schoolboy, carried a gun daily so that he could go hunting after class. 3 DIARY AND AUTOBIOGRAPHY OF JOHN ADAMS 257-59 (1961). 2. Patrick Henry Patrick Henry would “walk to court, his musket slung over his shoulder to pick off small game.” Harlow Giles Unger, LION OF LIBERTY: PATRICK HENRY AND THE CALL TO A NEW NATION 30 (2010). 3. Daniel Boone “When Daniel was almost thirteen he was given his first firearm, a ‘short rifle gun, with which he roamed the nearby Flying Hills, the Oley Hills, and the Neversink Mountains.’ ” Robert Morgan, BOONE 14 (2007). 4. Meriwether Lewis Meriwether Lewis’s neighbor Thomas Jefferson observed that young Lewis “when only eight years of age . . . habitually went out, in the dead of night, alone with his dogs, into the forest to hunt the raccoon & opossum.” 8 WRITINGS OF THOMAS JEFFERSON, at 482.  5. Thomas Jefferson Thomas Jefferson himself carried as a lad. “When he was ten he was given a gun by his father and sent into the forest alone in order to develop self-reliance.” 1 Dumas Malone, JEFFERSON AND HIS TIME: JEFFERSON THE VIRGINIAN 46 (1948). As an adult, Jefferson wrote about a holster he made for one of his Turkish pistols, “having used it daily while I had a horse who would stand fire,” and he noted another holster he made “to hang them [the Turkish pistols] at the side of my carriage for road use.” 10 THE PAPERS OF THOMAS JEFFERSON, RETIREMENT SERIES 320-21 (2004). Jefferson advised his fifteen-yearold nephew to “[l]et your gun therefore be the constant companion of your walks.” 8 THE PAPERS OF THOMAS JEFFERSON 407 (2004). 6. James Monroe Every day, “[w]ell before dawn, James left for school, carrying his books under one arm with his powder horn under the other and his musket slung across his back.” Tim McGrath, JAMES MONROE: A LIFE 9 (2020). 7. Ira and Ethan Allen Ira and Ethan Allen regularly carried multiple arms at once. For example, in 1772 Ira, Ethan, and a cousin went to purchase land near New York’s border “armed with holsters and pistols, a good case [pair] of pistols each in our pockets, with each a good hanger [sword].”

One might argue that John Adams’ school and the local “court” were as sensitive as schools of today, and not only were firearms openly carried, there was no concept of “sensitive places.”  Moreover, “In the colonies, availability of hunting and need for defense led to armament statues comparable to those of the early Saxon times. In 1623, Virginia forbade its colonists to travel unless they were “well armed”; in 1631 it required colonists to engage in target practice on Sunday and to “bring their peeces to church.”

Firearms were ubiquitous in Colonial times, and there was no need for an amendment which stated so or justified the right of men to own their “peeces.”  The second amendment was written to address a single issue – that of federal interference with the militia.  It would be quite an absurd proposition to claim that the very men who used their own “peeces” to go to war against their sovereign to ameliorate tyranny would see what they had written any other way than the right of men to live in liberty, and the right of combat to make that happen if necessary.

Hunting, self defense, and defense of home and hearth are certainly rights in God’s economy, but those are assumed as the presupposition, the axiomatic irreducible, for the second amendment to make any sense at all.  Before one even gets to the incorporation doctrine under the 14th amendment, there is no recognition of these facts by the author.

What does the author do then?  He focuses on various and sundry local problems like violence in Chicago.

Still, it is true that some of the regulations which have been held to violate the post-Heller Second Amendment are local and that stringent preemption laws might have kept them off the books in the first place. Chicago’s handgun ban is, of course, an obvious example. The fact that such laws have been struck down in court, however, suggests that preemption laws—if justified as a necessary protection for Heller’s right—are a solution in search of a problem.

Note his twisted logic.  We need local gun control because of violence in the inner city.  Local gun control is good.  State preemption laws prevent this sort of gun control.  Such local gun control has been struck down in court before, so state preemption laws are unnecessary (a “solution in search of a problem”).

That silly train of logic is offered up for a city where firearms carry is still illegal, hasn’t been struck down in court, and that infringement isn’t being prevented by state preemption.  Mr. Blocher needs to find a good course in formal and modal logic at Duke and sit for some training.

Never mind that his focus is on gun control, when he never even asks the question, “How could John Adams carry his “peece” to school with him and there was no violence, and we can’t get a handle on gangland?”  He never asks root cause questions such as, “Have we created this problem ourselves by government programs eviscerating the family unit?  Will we ever end the violence with gun control if access to firearms isn’t the cause of the problems?”

But the biggest leap in legal logic is found on page 17.

One obvious reason for the traditional variation is that the costs and benefits of guns vary by location. In crowded urban areas, the externalities of gun use (and misuse) are higher. In rural areas, there are more opportunities for traditionally lawful purposes like recreation and hunting, and police response times tend to be longer, thus arguably increasing the utility of a gun for self-defense.

And on page 23, he states the following.

One of the ripple effects of broad preemption laws might be to dampen the use of local law to establish a duty of care.

There is no “duty of care” and the author knows this.  This isn’t merely an error – it’s an intended oversight because the consequences of admitting the truth are lethal to his arguments.  Nor is there a duty of police protection, and likewise, the author knows this as well.  See the following.

Castle Rock v. Gonzalez

Warren v. District of Columbia

DeShaney v. Winnebago County

No trained attorney is ignorant of these things.  The courts have repeatedly ruled that the police cannot be there all of the time, are under no legal obligation to respond in any certain time frame, and are under no duty to protect citizens (notwithstanding contractual obligations such as witness protection).

Throughout the paper the author speaks from the perspective of public safety without addressing the overarching concern of individual safety, security and right of self defense.  He also doesn’t address the fundamental basis of the second amendment as the surety against tyranny.

It may be a nit, but it’s worth mentioning.  There are silly remarks cited by the author that significantly detract from the intended seriousness of this paper (page 18).

… as Professor Richard Briffault has noted: if “the fifty states are laboratories for public policy formation, then surely the 3,000 counties and 15,000 municipalities provide logarithmically more opportunities for innovation, experimentation, and reform.”

There is nothing about this that is logarithmic.  Even without granting any validity to the assumption that experimentation with rights is a good thing, we observe that each county or city is an uncorrelated variable.  This isn’t like a deck of cards that can be arranged in many different sequences (52!), or 52 factorial.  This is linear, not logarithmic.

We started saying that we always look up when someone comes along claiming a scholarly analysis of the 2A.  This author apparently thinks he succeeded.  He did not.  He belongs in the department of sociology rather than law.

Finally, the author has turned the ideas of the founders on its head.  Liberty means the right of local tyrants to enact stricter and stricter laws on its people because the smallest locale is the laboratory of democracy.  Experimentation is a good thing, according to him.  It was against such local tyranny that the founders went to war, and it was against such local tyranny that Heller and McDonald were written, however weak we see them.