CELDF

Blog: The NRA, Gun Violence, and Ceiling Preemption

When does the right to own a gun carry more cultural and legal weight than the right of a community to collectively decide what safety means and how to create protected, healthy, and resilient communities?

That is a two-part question – and in this two-part blog, we first offer a reframe, exploring one way to look at the rights and regulations of gun ownership. We also explore the power of the National Rifle Association.

Then we look at “ceiling preemption,” offering our legal examination of why the right to carry a gun carries more weight today than the right of a community to collectively make decisions to restrict weapons.

Establishing more stringent laws governing gun ownership is not a move to take away the right to own a gun. Instead, it seems to be a reasonable response to the growing number of lives lost to gun violence – one step of many that are likely necessary to create safety and address the root causes of violence.

Part I – A Right to Property

The right to property is protected by the constitution – as is the right to own a gun. The latter is protected specifically by the Second Amendment. (More on that in Part II below.)

And yet the right to property doesn’t mean there are no laws in place to regulate the use of that property. For example, laws are put in place regarding the use of a car: You must be a certain age to drive on the roads, you are required to take classes to learn to drive and receive a driver’s license, you must pass an eye exam, and so on. Further, not just any car can be on the road. Cars, also, must meet certain requirements. Why? All the laws are supposed to make the community safer for everyone.

Photo: March for Our Lives student protest for gun control by Fibonacci Blue, Flickr Creative Commons

Establishing more stringent laws governing gun ownership is not a move to take away the right to own a gun. Instead, it seems to be a reasonable response to the growing number of lives lost to gun violence – one step of many that are likely necessary to create safety and address the root causes of violence.

The NRA

Today communities are increasingly coming up against the National Rifle Association’s influence. That influence is enormous, but not because the NRA directly contributes to campaigns and thus wins votes. Instead, its influence is through propaganda, as discussed in this article in Vox. For example, the NRA uses its influence to hammer candidates who even suggest gun reform.

One of the NRA’s successful tactics is to assert that when Americans attempt to protect the larger community from harm through tighter gun laws, it will be a “slippery slope” to taking away all gun ownership.

This, as the Huffington Post recently reported, is why there is always a spike in gun sales following a mass shooting: fear that the right to gun ownership will be taken away. And, as the Huffington Post further points out, today’s NRA is there to protect the interests of gun manufacturers. Of course, arming teachers would be supported by gun manufacturers: There are over 3 million teachers in the United States.

Gun Ownership ≠ Safety

The NRA and advocates argue that restricting guns will make communities all the more vulnerable – virtual sitting ducks for those with guns. The logic goes something like the more guns, the safer the communities.

This is contrary to what we see globally: The fewer guns, the safer the communities.

Photo: CREDO calls on NRA to stand down, by joshlopezphoto, Flickr Creative Commons

Of course, there are other competing perspectives regarding research and statistics on gun violence and mass shootings. However, even if a community analyzed data, weighed the evidence, and determined they want to restrict weapons because they believed that was part of what would make their community safer – they still can’t. And it’s not just because of the NRA or the second amendment.

Part II – Ceiling Preemption

When opponents of gun safety regulation want to stop cities from preventing gun violence, they don’t just rely on the NRA, and they don’t always turn to the Second Amendment. Sometimes, they use ceiling preemption. In Part II, we break down the status of gun violence prevention laws in the United States and show why violence prevention movements should join with public health, consumer protection, environmental protection, and worker rights movements to change state constitutions to outlaw ceiling preemption.

The Usual Conversation on Gun Regulation: the Second Amendment

Most legal discussions about gun violence in the United States focus on the Second Amendment, those cryptic phrases in the United States Constitution that state:

“A well regulated Militia, being necessary to the security of a free state,  the right of the people to keep and bear Arms, shall not be infringed.”

The Second Amendment is in the Bill of Rights, which is the first set of amendments to the United States Constitution that primarily set limitations on government. The Bill of Rights prevents government – federal, state, and local – from acting in violation of the people’s rights.

What exactly the Bill of Rights means is up to the United States Supreme Court, which gets to interpret the United States Constitution. With regard to the Second Amendment, the United States Supreme Court has spliced those cryptic phrases to “hold that individual self-defense is ‘the central component‘ of the Second Amendment right.” McDonald v. City of Chicago, 561 U.S. 742, 744 (2010)[1] (quoting District of Columbia v. Heller, 554 U.S. 570, 599 (2008)[2] (emphasis in original)).

The United States Supreme Court held that Washington, DC’s prohibition on handguns (and the requirement that rifles and shotguns be kept unloaded and disassembled or bound by a trigger lock) violated this right of individual self-defense, and struck down that ordinance. Heller, supra. The Court also held that Chicago, IL’s gun regulations, which arguably banned handguns, were also a violation of this right of individual self-defense, and also struck down that ordinance. McDonald, supra.

Heller and McDonald

Both Heller and McDonald were split decisions by the Supreme Court: 5 judges against 4 judges, and thus one judge changing his[3] mind would likely have changed whether the right to individual self‑defense found in the Second Amendment made Washington’s or Chicago’s gun ordinances unconstitutional. In other words, one judge deciding differently could have changed the Court’s holding to say, effectively: yes, the Second Amendment protects individuals’ right to self-defense, but Washington and Chicago’s gun regulations do not violate that right.

Photo: United States Supreme Court, by Matt Popovich, Flickr Creative Commons

But even the five-justice majority in Heller and McDonald recognized that the Second Amendment (the right to individual self-defense) does not stop all firearm restrictions: such as limitations on possession by certain people (people with felonies, or mental illness), or certain places (schools, government buildings), or conditions on gun sales. In McDonald, the Court said “Although we do not undertake an exhaustive historical analysis today on the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” McDonald, supra at 626-27.

Thus, the United States Supreme Court, through its Heller and McDonald interpretations of the Second Amendment, has defined the boundaries of the gun regulation debate in the United States. Namely, certain laws (like Washington and Chicago’s handgun bans) can violate the right to individual self‑defense protected by the Second Amendment, but not all gun regulations violate that right.

Cities as Laboratories of Democracy

Governments are responsible for protecting people’s rights, health, safety, and welfare. As described above, cities (and other general purpose local governments, like counties) can do a lot to prevent gun violence in order to protect public health and safety without violating the right to individual self‑defense.

Photo: Cleveland Skyline from Garfield Monument, by Jon Dawson, Flickr Creative Commons

Cities, in particular, are experiment laboratories for effective public policy. Local government advocates at the beginning of the Twentieth Century saw cities as policy “experiment station[s].”.[4] A few decades later, in arguing in favor of government’s authority to enforce business licensing rules, Justice Brandeis borrowed the laboratory metaphor, and argued that states should have broad discretion to experiment with social and economic policies.[5] This idea is now central to the legal theories that justify state autonomy relative to the federal government.

Local government advocates back at the turn of the century advocated for “home rule,” which meant that cities could do what they want to protect rights, health, safety, and welfare, as long as their lawmaking was compatible with state and federal laws. In many states, the people amended their state constitution to include home rule. For example, in 1912, the people of Ohio amended their state constitution to adopt a particularly strong home rule constitutional provision:

“Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, – as are not in conflict with general laws.” Ohio Const. Art. XVIII, § 3.

But since 1912, the Ohio Supreme Court[6] has done away with most of the power that the local government advocates thought they had given cities with this provision.

First, the court interpreted the “powers of local self-government” very narrowly, basically saying that it was just about internal city business, like decisions about how to hire certain city staff. Then, the court interpreted the “police power” provision (the “police, sanitary and other similar regulations” clause, which means, in modern legal language, “health, safety, and welfare”) to be strictly limited by state preemption: the court said state law trumps local law, even when the local law is more protective of people’s rights, health, safety, and welfare.

Cities and other local governments are the governments...that we have the most power to influence, and the ones that can most represent our communities' interests.

Squashing Democracy with Preemption

Thus, even with Home Rule, opponents of public policy experimentation have plenty of tools to stop cities from protecting people’s rights, health, safety, and welfare. One of the main tools is preemption. Here’s an example of how it works.

The City of Cleveland, OH, had numerous ordinances concerning possessing firearms by minors, possessing deadly weapons on private property, possessing certain weapons at or about public places, prohibiting children’s access to firearms, prohibiting possession and sale of assault weapons, and requiring handgun registration. See City of Cleveland v. Ohio, 2010-Ohio-6318, 128 Ohio St. 3d 135, 942 N.E.2d 370 (2010).[7]

Rather than bring a lawsuit against Cleveland based on the Second Amendment’s right of individual self-defense, opponents of gun violence prevention went to the Ohio state legislature, and in 2007 they got the state legislature to pass a bill that prevented cities from regulating guns. The state law says:

“The individual right to keep and bear arms, being a fundamental individual right that predates the United States Constitution and Ohio Constitution, and being a constitutionally protected right in every part of Ohio, the general assembly finds the need to provide uniform laws throughout the state regulating the ownership, possession, purchase, other acquisition, transport, storage, carrying, sale, or other transfer of firearms, their components, and their ammunition. Except as specifically provided by the United States Constitution, Ohio Constitution, state law, or federal law, a person, without further license, permission, restriction, delay, or process, may own, possess, purchase, sell, transfer, transport, store, or keep any firearm, part of a firearm, its components, and its ammunition.” O.R.C. 9.68(A).[8]

In other words, the state legislature said that only the state and federal governments could make laws to protect people from gun violence.[9] This is often called “field preemption” because the state has taken away (“preempted”) cities’ authority to make laws in an entire area of lawmaking (a whole “field”) – in this case, preventing gun violence.

Photo: March for Our Lives student protest for gun control, by Fibonacci Blue, Flickr Creative Commons

City of Cleveland v. State of Ohio

The City of Cleveland sued the State of Ohio to challenge this state law in court. Cleveland argued that the state law was unconstitutional because it violated Cleveland’s home rule powers under Ohio Constitution Article XVIII, Section 3 (quoted above). The State won in the trial court. Cleveland won in the appellate court. Then the Ohio Supreme Court heard the case. Numerous cities, violence prevention groups, and others filed briefs in support of Cleveland. The National Rifle Association and National Shooting Sports Foundation filed briefs in support of the State law that prevented cities from regulating guns.

The Ohio Supreme Court ruled that the state preemption law was legal, and therefore the City of Cleveland’s gun regulations were preempted and invalid.

So much for laboratories of democracy! When cities try to protect the people from gun violence, opponents just get the state to preempt the cities’ laws.

Note that City of Cleveland v. State of Ohio wasn’t about the scope of the right to individual self-defense found in the Second Amendment. The Ohio Supreme Court upheld the state law preempting local gun regulation based on arguments about uniform statewide law.[10] The opponents of Cleveland’s gun laws could certainly have challenged those ordinances as unconstitutional limitations on the right to individual self-defense under the Second Amendment. Indeed, the opponents of gun regulation were making that argument against Washington, DC’s ordinance and Chicago’s ordinance at about the same time in the late 2000’s.

Ceiling Preemption

Washington and Chicago had banned handguns, whereas Cleveland had banned assault weapons and just required handgun registration. The opponents of gun regulation didn’t want to lose their Second Amendment argument – they didn’t want the United States Supreme Court to say that Cleveland’s regulations didn’t violate the Second Amendment. Thus, they got rid of Cleveland’s gun violence prevention laws by getting the Ohio legislature to preempt them, rather than risking that a court would hold that Cleveland had not violated the right to individual self-defense.

The Ohio law that invalidated Cleveland’s gun violence prevention laws is an example of “ceiling preemption,” because it sets a ceiling on the rights, health, safety, and welfare protections for people. It’s one thing for state or federal law to set a floor – minimum protections for people. It’s quite another thing to set a ceiling, because that means that state or federal law prevents the local government from protecting people’s rights, health, safety or welfare above the level set by the state or federal law.

Ceiling preemption is a weapon that powerful corporate interests use to stymie democracy.

Ceiling preemption is not a neutral principle of federalism. It’s not a necessary interpretation of the Supremacy Clause of the United States Constitution. Instead, ceiling preemption is a weapon that powerful corporate interests use to stymie democracy. Cities and other local governments are the governments closest to the people. These local governments are the governments that we have the most power to influence, and the ones that can most represent our communities’ interests. Yet, through ceiling preemption, state and federal lawmakers are able to strip local governments of their ability to protect us. That’s what happened in Ohio around gun violence prevention laws.

It’s Time to Outlaw Ceiling Preemption

Ceiling preemption isn’t just practiced in the gun regulation debate. Half of the states use ceiling preemption to also prevent cities from raising the minimum wage.[11] Many states use ceiling preemption to prevent local governments from regulating fracking, frack waste injection wells, and other oil and gas industrial activities.[12] Ceiling preemption is routinely used to prevent local public health and consumer protection laws.

Rather than make legal arguments to duck and weave around ceiling preemption, the entire framework of ceiling preemption needs to be outlawed. Just as the Home Rule advocates a century ago attempted to return local lawmaking power to cities through state constitutional amendments, we need to turn again to changing the constitutional relationship between federal, state, and local governments.

The Ohio Community Rights Network

In Ohio, people are doing just that. The Ohio Community Rights Network is gathering signatures to qualify a petition to amend the Ohio State Constitution to recognize the people’s right of local community self‑government.[13] If enacted into law this constitutional amendment would prohibit ceiling preemption, while preserving fundamental rights protections for people.

Photo: Reprinted from Illinois Review: http://illinoisreview.typepad.com/illinoisreview/2015/10/petition-signature-gathering-top-priority-for-illinois-candidate-races.html

This constitutional amendment wouldn’t change the meaning of the Second Amendment, or allow a city to violate people’s right to individual self-defense. But it would prevent state legislatures from preempting local laws that provide greater protection for people’s rights, health, safety, and welfare. If the City of Cleveland could have relied on this constitutional amendment – rather than the watered‑down 1912 home rule amendment – the Ohio Supreme Court would have had to find the Cleveland gun violence prevention ordinances were not preempted, since they were local laws that protect health and safety. If we had this amendment in place today, Cities throughout Ohio could use their legitimate democratic powers to ban assault rifles, rather than merely passing resolutions begging the state legislature to do the right thing.

It’s time to outlaw ceiling preemption. There are many people already working to do so.[14] If you care about preventing gun violence, please join with them.

The Community Environmental Legal Defense Fund (CELDF)’s mission, in part, is to build sustainable communities by assisting people to assert their right to local community self-government, while protecting natural persons’ existing protections under state and federal law. Our work is possible with your support – please donate to advance rights at the local and state level across the country.

[1]     Available at https://www.supremecourt.gov/opinions/09pdf/08-1521.pdf.
[2]     Available at https://www.supremecourt.gov/opinions/07pdf/07-290.pdf.
[3]     Yes, “his” is accurate here: the only woman on the Court during Heller was Justice Ginsburg, who was in the minority so her changing her mind wouldn’t have changed the opinion. Justice Sotomayor joined the court in August 2009, and joined Justice Ginsburg in the dissenting opinion in McDonald.
[4]     Frederic C. Howe, The City: The Hope of Democracy, page 303 (1905).
[5]     New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).
[6]     Just as the United States Supreme Court has final authority to decide what the United States Constitution means, the Ohio Supreme Court has final authority to decide what the Ohio Constitution means.
[7]     Available at http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-6318.pdf.
[8]     Available at http://codes.ohio.gov/orc/gp9.68v1.
[9]     With a few limited exceptions for certain zoning ordinances. See R.C. 9.68(D).
[10]     The fact that R.C. 9.68(A) referenced the constitutional rights was irrelevant. The Ohio Supreme Court would have reached the same conclusion even if the state statute had just said “the general assembly finds the need to provide uniform laws throughout the state.”
[11]     See National League of Cities, “City Rights in an Era of Preemption: A State-by-State Analysis” (Feb. 22, 2017), available at http://www.nlc.org/preemption.
[12]     In Ohio, for example, the Ohio Supreme Court ruled that the state’s Oil and Gas Act prohibited all local regulation of oil and gas well siting. State ex rel. Morrison v. Beck Energy Corp., 143 Ohio St. 3d 271, 2015-Ohio-485 (2015), available at http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2015/2015-Ohio-485.pdf.
[13]     Text of the proposed amendment is available at http://ohcommunityrights.org/projects/statewide-constitutional-change/.
[14]     In addition to the Ohio Community Rights Network’s state constitutional amendment initiative, the New Hampshire Community Rights Network was able to get a similar proposed constitutional amendment heard by the Municipal & County Government committee of the New Hampshire legislature in 2018 (in New Hampshire, state constitutional amendments cannot be initiated by the people, only by the legislature). The amendment now heads to the floor of the New Hampshire House for a vote.

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