Forty-three states have passed broad firearm preemption laws that bar local governments from enacting their own gun regulations. State legislatures often cite the need for uniform firearm laws to justify this prohibition on local lawmaking around guns. Yet, in recent years, hundreds of sheriffs across the country have promised not to enforce state gun laws. These sheriffs, who are loosely organized as a coalition known as the “constitutional sheriffs movement,” believe that they have the power and duty to not enforce laws that they believe to be unconstitutional. As more states have enacted democratically-supported gun regulations, constitutional sheriffs have announced their opposition to these laws and refused to enforce them.
Through nonenforcement, constitutional sheriffs undermine the uniformity of firearm laws by creating pockets of looser local gun regulation within states. Meanwhile, state preemption laws ensure that localities favoring stricter gun regulations remain absolutely barred from implementing the local laws they desire—and cite the necessity of uniform statewide firearm laws as justification. When municipalities try to defy state preemption laws by passing local ordinances that regulate firearms, the preemption laws make it easy to swiftly strike these local frameworks down. Yet, at the same time, state legislatures have implemented no mechanism to curb local resistance to statewide gun laws by sheriffs. States have thus stifled local anti-gun action and debate as they allow local pro-gun measures to flourish.
This selective state action against local resistance to statewide gun laws creates an untenable situation. It allows some localities to have a say in their local gun regulations while denying that power to others, and it casts doubt on the legitimacy of states’ justification for preemption in the first instance: uniformity. Further, the sheriffs’ underenforcement of state gun laws dilutes the effectiveness of statewide gun laws due to the mobility of guns. This means that, in states with firearm preemption laws and an active constitutional sheriffs movement, voters seeking stricter gun laws are not only prevented from enacting gun regulations at the local level, but any state law they vote to enact is also weakened by sheriffs’ underenforcement. Selective state action against local resistance thus causes voters seeking stronger gun control to be subverted at both the state and local level. States allow these anti-democratic conditions to thrive when they prohibit local anti-gun initiatives at the same time that they tolerate pro-gun local resistance to state law.
Ultimately, this Note argues that, in the firearm context specifically, ensuring uniformity of regulations throughout a state is an important goal due to the mobility of guns and the collateral effects of weaker gun laws. States should therefore focus reform efforts on stymying the negative spillover effects of weak local gun laws, including by ensuring that firearm safety regulations are being implemented consistently throughout the state.