“The Biggest Legal Obstacle to Gun Regulation”

Preemption laws generally allow higher levels of government to override lower levels of government: the federal government can preempt state governments, while states can preempt city ordinances.

For much of the country’s history, local officials have kept the authority to determine their own firearm regulations. Yet over the past several decades, gun-rights lobbyists and Republican lawmakers have pushed to remove this power, relaxing gun laws nationwide.

In the 1980s, the small town of Morton Grove, Illinois, passed regulations prohibiting the sale or possession of handguns. In the months leading up to its vote, the village trustees for its 23,000 residents found themselves in the crosshairs of groups like the NRA, which sent out flyers protesting the ban. Another pro-gun-rights group, the Citizens Committee for the Right to Keep and Bear Arms, wrote to each trustee, some of whom started receiving death threats. The NRA capitalized on the controversy to develop a new national strategy: overturning local regulations in court.

As a result, today “state-level preemption laws keep more gun regulations off the books than the Constitution does,” Joseph Blocher, a professor at Duke Law School, told the Lever.

Wisconsin, for example, passed a state gun-control law in 1995 that prevented local authorities from adopting potentially more restrictive firearm measures. Known as Act 72, it prohibited stricter laws on the sale, ownership, or permitting of guns. “[Gun lobbyists] lobbied heavily to get that state statute passed in the first place,” Bauman said.

Since then, some Wisconsin lawmakers have attempted to repeal this restriction but faced robust pushback from the gun lobby and the state GOP, which controls both legislative chambers. In 2017, the local gun-rights advocates group Wisconsin Carry brought a lawsuit against Madison’s City of Transit and Parking Commission to get rid of a local ban on guns on public buses.

Wisconsin Carry argued that it violated Act 72, which had intended to make a uniform standard for firearm requirements across the state. In 2017, the state’s Supreme Court agreed.

The NRA has filed briefs of support in previous Wisconsin lawsuits supporting the state’s preemption laws, including in a case in 2006 over whether a bar owner could be prosecuted for carrying a gun in his car. It argues that preemption laws prevent a confusing patchwork of regulations.

In March, a group of Democratic Wisconsin lawmakers introduced a bill to end the preemption law for firearms, as they did in the previous legislative session. But like in years prior, the bill failed in the Republican-controlled legislature. Gun advocacy groups, including Wisconsin Firearm Owners, registered to lobby on the bill.

It’s no coincidence that the majority of states now use preemption as a tool to support gun rights.

Nationally, forty-three states now have preemption laws restricting local governments’ attempts to rein in gun violence. States like Colorado preempt regulations around particular conditions such as having guns in private vehicles, while others, like Texas, prohibit local authorities from weighing in on everything from transportation to licensing to discharging weapons. A few even punish local lawmakers: officials in Florida can be fined $5,000 for violating the state’s preemption laws, and in Kentucky, they can face criminal charges.

Preventing Progress

Increasingly, it’s not just guns that fall under preemption laws. Just as the NRA has recently expanded its lobbying efforts beyond gun rights, preemption regulations are now being wielded as a tool for other popular conservative issues. Wisconsin now has preemptions against everything from inclusionary zoning and rent control to banning plastic bags.

“Particularly in an era when we’ve seen a growing divide between the legislatures of red states and the preferences of blue cities within those states,” said Blocher at Duke Law School, “there’s been a real push for preemption laws.”

The Wisconsin legislature passed a bill in 2018 to prevent local authorities from developing their own employment law, including on matters like minimum wage. It’s the latest setback in a string of efforts to improve labor protections. Milwaukee tried to require paid sick leave back in 2008, for instance. But in 2011, the state passed a ban prohibiting local governments from requiring employers to compensate ill workers.

“These types of legislature blockages have had a disproportionately severe effect on urban areas, where many of the state’s residents of color live,” found the Wisconsin Budget Project, an advocacy group focused on children.

A recent report by the Economic Policy Institute, a nonprofit think tank, found that Southern and Midwestern states are more likely to misuse preemptions to interfere with labor standards. They write that state preemption laws are “intertwined with a history of segregation and other policy choices that have reinforced anti-Black racism and white supremacy.”

These laws have also been increasingly used to support the interests of deep-pocketed corporations. Pro-business groups like the American Legislative Exchange Council (ALEC), for instance, have backed preemption efforts on a variety of issues. ALEC lobbied to prohibit the expansion of public broadband access; its members have ties to major telecommunications companies. In states like Wisconsin, model language drafted by the group to block municipalities from competing with corporate providers of broadband services was passed in 2004.

As legislation efforts continue to hamper local governments from pursuing public-safety regulations, this week in Milwaukee, officials like Bauman will be holding their breath. Nor will the threat abate after the RNC wraps up — gun violence in Milwaukee will continue to be a problem even after the convention is over.

Bauman doesn’t see much chance of that changing until the state’s preemption laws do.

“I said, if there’s one area where we can take some charge of this, it’s this event,” Bauman said. But it’s “not to be.”