Abstract
Objectives. To assess state policy environments and the relationship between state gun-control, gun-rights, and preemptive firearm-related laws in the United States.
Methods. In 2019 through 2020, we evaluated substantive firearm laws and preemptive firearm laws across 50 US states for 2009 through 2018. For each state, we compared substantive measures with preemptive measures on the same policy topic for 2018.
Results. The presence of state firearm-related laws varied across states, but with the exception of “punitive preemption” the number of gun-control, gun-rights, and preemptive measures remained unchanged in most states from 2009 through 2018. As of 2018, a majority of states had preemptive measures on almost all gun-control policy topics without enacting substantive gun-control measures. Several states had a combination of gun-control and preemptive measures. Only a small number of states had gun-control measures with few to no preemptive measures.
Conclusions. Even where state legislators were unable to pass statewide gun-rights measures, they succeeded in passing preemption, preserving state authority over a wide range of gun-control and gun-rights policy topics. The majority of states used preemption as a tool to support policy frameworks favoring gun rights.
Firearm violence is an increasing public health problem in the United States. In 2018, there were 39 740 firearm-related deaths (109/day) resulting from firearms used in suicides, homicides, and accidental shootings.1 Yet, the Second Amendment of the US Constitution has been interpreted to protect most gun ownership, and, based on prevailing judicial interpretation, provides robust protection for gun rights. The federal government has enacted few gun-control measures, leaving the policy debate about reducing gun violence to state and local action. States have created different regulatory environments with respect to firearms, with the policy objective of either decreasing firearm-related death and disability (i.e., gun control) or protecting gun rights.2 , 3 One legal tool that can be used for either purpose is preemption. Preemption occurs when a higher level of government (here the state) removes or limits the authority of a lower level (local governments) to act on a specific issue.4
Previous research indicates that states preempt local control over firearms more than any other public health topic,4 and yet firearm-related preemptive bills still outnumber preemptive bills on any other public health topic.5 However, the question of whether states are preempting local control over firearm safety while simultaneously enacting state-level protections has not been empirically studied. States that do not enact protective measures but simultaneously preempt the ability of localities to do so create a regulatory void on topics that the federal government does not regulate6; such preemption also eliminates communities’ ability to protect their members and hinders grassroots movements that may form around the policy topic.7 This is particularly concerning for localities that have high rates of firearm violence but an inability to enact laws to address it because they are preempted.8
Comparing states’ substantive firearm law measures and preemptive firearm law measures on the same policy topic is thus necessary to determine whether states that preempt local laws are simultaneously enacting statewide protections or simply retaining state control. We evaluated substantive and preemptive firearm law measures across all 50 US states over a 10-year period to understand the context in which preemption is occurring. In this context, we assessed the relationship between preemptive and substantive measures on the same policy topics that protected gun control or gun rights by examining and comparing each state’s firearm laws in 2018.
METHODS
In 2019, we sourced firearm-related state preemption laws from Giffords Law Center to Prevent Gun Violence9 and Grassroots Change/Preemption Watch10 (both of which display their respective analysis of preemptive laws to date). We retrieved sourced statutes and all other statutes in the same topical chapter, title, or section, as arranged by the state’s legislature, from LexisNexis for the years 2009 through 2018. To identify substantive firearm laws, we used the RAND State Firearm Law Database, which provides historical state statute data.11 We evaluated each entry, and when we found discrepancies in the database, we retrieved and evaluated the statute from LexisNexis and fixed the data. J. L. P. directed and oversaw this process, with assistance from a law school student and a research assistant.
Based on our review of the state statutes and literature,2 , 3 , 9 we categorized provisions of substantive laws as “gun-control” or “gun-rights” measures. State statutes may have thus included gun-rights, gun-control, or preemptive measures over the same policy topics. For example, states could have laws with a substantive gun-control measure of banning assault weapons and a preemptive measure on the same policy topic of banning assault weapons.
Per the standard in the field for coding legal statutes,12 our codebook records the presence of gun measures in each state and year 2009 through 2018, as well as other features, such as exceptions or limitations. For statutes enacted before 2009, we established that they were still in effect and coded them accordingly. For statutes that became effective or were repealed during our 10-year time frame, we recorded these dates and coded accordingly. In those cases, we recorded the month the statute went into effect or was repealed to capture the portion of the year that a measure was effective in the state.
For laws that had more than 1 relevant policy topic in the statute, we treated each individual measure separately, yielding 39 possible gun-control measures, 12 possible gun-rights measures, and 47 possible preemptive measures. The gun-rights measures had overlapping goals, so states would typically choose among policy options in the same policy area (e.g., expanded castle doctrine or stand your ground). Conversely, a state could have laws for all 39 gun-control measures and all 47 preemptive measures.
We coded preemptive laws for the presence of the preemptive measure and to capture the type of preemption, ceiling or floor, and the presence of a savings clause. Ceiling preemption occurs when a state removes or limits local governments’ ability to enact laws on a specific topic. Floor preemption refers to minimum standards whereby a state provides baseline requirements and allows localities to build on those standards. States may also or instead enact a savings clause that expressly allows local governments to enact laws on a specific topic, whether or not the state passed the policy itself.13 Finally, we also coded “punitive preemption” laws14 (also referred to as “super preemption”15) that authorize the state attorney general or grant individuals or membership organizations standing to sue local governments or local officials for engaging in preempted actions. These statutes may also include specific punitive measures, such as fines, legal liability, and removal from office.14
To understand the firearm policy context for each state, we created indices for the number of gun-control, gun-rights, and preemptive measures in each state for each year 2009 through 2018. We divided states into quartiles for each year based on the number of measures present for each category for each year. We used Stata version 14 (StataCorp, College Station, TX) to generate the indices and divide states into quartiles for each index.
We then investigated the relationship between substantive and preemptive measures in 2018 by matching the substantive measure with the preemptive measure on the same policy topic for each state, allowing us to determine whether states had both the substantive and the preemptive measure for the same policy topic. We counted each pairing for each state, then divided the states into quartiles, for ease of presentation. Unlike the substantive measures that either promote gun control or protect firearm ownership, by definition all preemptive measures removed local jurisdictions’ authority to enact stronger gun-control measures. Thus, we interpreted the presence of a preemption measure as pro–gun rights.
RESULTS
Figure 1 presents the indices of the number of state gun-control, gun-rights, and preemptive measures in effect for each state in quartiles for 2009 through 2018. Appendix A, Tables A1–A3 (available as a supplement to the online version of this article at http://www.ajph.org) list the number of states with each policy topic in 2018, the most recent year of data, and Appendix B, Tables B1–B3 (available as a supplement to the online version of this article at http://www.ajph.org) present quartiles of states for each category of measures in 2018. In Figure 1a–c, the first quartile includes states with the fewest measures, and the fourth quartile includes states with the most measures.
FIGURE 1—
Indices of Number of (a) State Gun-Control Measures, (b) Gun-Rights Measures, and (c) Preemption Measures, by Year, in Quartiles: United States, 2009–2018
Note. States in part c were not able to be divided into 4 quartiles because so many states enacted the same number of preemptive laws. The second quartile represents, in effect, the second and third quartiles.
As presented in Figure 1a, the number of gun-control measures in effect remained constant in most states between 2009 and 2018. Twenty-nine states maintained the same number of gun-control measures (1–22) over the 10-year period, whereas 10 states enacted 1 or 2 new gun-control measures during the 10-year period, and 5 states enacted more: California (5), Maryland (4), Delaware (3), Vermont (3), and Wyoming (2.5). (Decimals indicate that the measure was effective for a part of the year.) Nonetheless, 6 states repealed gun-control measures over this time: South Carolina and Wisconsin repealed 2 gun-control measures each, and Georgia, Illinois, Virginia, and South Dakota repealed 1 gun-control measure each. As can be seen in Appendix B, Table B1, by 2018, California had the most gun-control measures (25) in 2018, followed closely by Hawaii (22) and Massachusetts (21), whereas 13 states had 3 or fewer gun-control measures, including Montana, New Mexico, and South Dakota, with 1 each, and South Carolina had zero, the fewest in the country.
As shown in Figure 1b, the number of gun-rights measures also remained constant for most states over the 10-year period. Forty states maintained the same number of gun-rights measures (0–4) for the period 2009 through 2018; but during our study period, 9 states passed 1 new gun-rights measure (IA, ID, IL, KY, MO, NV, NH, NC, WY), and 1 state, Wisconsin, passed 2 new gun-rights measures between 2009 through 2018. As seen in Appendix B, Table B2, by 2018, Pennsylvania had the most gun-rights measures (4), and 15 states had the fewest gun-rights measures, with 0 or 1.
Similar to the pattern we observed for gun-control and gun-rights measures, from 2009 to 2018 the number of states with ceiling preemption (Figure 1c) remained relatively constant over the 10-year period, increasing only slightly, with the majority of states (31) having 44 preemptive measures in effect over the period. As can be seen in Appendix B, Table B3, by 2018, 2 states, Arizona and Alabama, had ceiling preemption over all 47 policy topics evaluated. Only 9 states had fewer than 39 preemptive measures (NE [27], CA [15], IL [14], AK [2], and CT, HI, MA, NJ, NY [0]). In addition, only Illinois regularly had minimum standards (floor preemption) or a savings clause to expressly allow localities to regulate firearms and did so for 32 of the policy topics evaluated (data not shown).
By contrast to the pattern for ceiling preemption over the period 2009 through 2018, there was a dramatic increase in states enacting punitive preemption. In 2009, only 2 states had punitive preemption. By 2018, 15 states had punitive preemption measures (AL, AZ, FL, GA, ID, IN, IA, KY, ME, MS, NV, NC, OK, TN, TX; Figure 2). All of the punitive preemption measures allowed the state attorney general to sue or gave standing to individuals or membership organizations (e.g., the National Rifle Association) to petition the state attorney general or to directly sue local governments or local officials if they believed they were adversely affected by local actions they deemed preempted. As shown in Appendix B, Table B3, these 15 states are also among those that, by 2018, had the most preemptive measures. Several punitive preemption measures additionally fined or imposed civil penalties on local governments or legislators (4 states) or authorized the removal of local officials from office for violating the state’s firearm preemption statute (2 states; data not shown).
FIGURE 2—
Number of States With Gun-Related Punitive Preemption Measures: United States, 2009–2018
Note. A gun-related punitive preemption measure is a state law that authorizes the state attorney general or individuals or membership organizations to sue local governments or local officials for engaging in preempted actions. These statutes may also include the threat of fines, legal liability, and removal from office.
Despite the relative consistency nationally across the 10 years for gun-control, gun-rights, and preemption measures, by 2018, state policy environments varied substantively across states. Table 1 presents the state quartiles of 2 comparisons for 2018: first, the pairings of states having gun-control measures with state preemption of gun-control measures on the same policy topic; and second, pairings of states that had preemption but no gun-control measure for the same policy topic. There were 40 possible pairings for both. The number of pairings of gun-control measures with corresponding preemption varied from 0 to 16, with 16 states having between 0 and 2 of these pairs and 11 states having 8 to 16 pairs (column quartiles 1 and 4).
TABLE 1—
Comparison of State Preemption and Substantive Gun-Control Measures on the Same Policy Topic, by Quartiles: United States, 2018
| No. of State Gun-Control Measures With Corresponding Preemption on the Same Policy Topic, by Quartile | ||||
| 1st Quartile (Range = 0–2 Laws) | 2nd Quartile (Range = 3–4 Laws) | 3rd Quartile (Range = 5–7 Laws) | 4th Quartile (Range = 8–16 Laws) | |
| No. of state preemption measures without corresponding gun-control measures on the same policy topic, by quartile | ||||
| 1st quartile (0–28 laws) | AK (1,0) | CA (6, 6) | FL (25, 8.75a) | |
| CT (0, 0) | NE (21, 5) | MD (24, 16) | ||
| HI (0, 0) | PA (28, 12) | |||
| IL (10, 2) | RI (25, 15) | |||
| MA (0, 0) | ||||
| NJ (0, 0) | ||||
| NY (0, 0) | ||||
| 2nd quartile (30–34 laws) | AZ (33, 7) | DE (30, 10) | ||
| NV (34, 6) | IA (30, 10) | |||
| NC (33, 7) | MI (31, 9) | |||
| TN (33, 7) | MN (32, 8) | |||
| WI (34, 6) | OR (32, 8) | |||
| UT (31, 9) | ||||
| WA (30, 10) | ||||
| 3rd quartile (35–36 laws) | AR (36, 3) | CO (35, 5) | ||
| GA (36, 4) | IN (35, 5) | |||
| ID (36, 4) | OK (35, 5) | |||
| KY (36, 4) | VA (35, 5) | |||
| MS (36, 4) | ||||
| NH (36, 4) | ||||
| TX (36, 4) | ||||
| VT (36, 4) | ||||
| WV (36, 4) | ||||
| 4th quartile (37–40 laws) | KS (38, 2) | AL (37, 3) | ||
| ME (38, 2) | LA (37, 3) | |||
| MO (38, 2) | WY (37, 3) | |||
| MT (39, 1) | ||||
| NM (39, 1) | ||||
| ND (38, 2) | ||||
| OH (38, 2) | ||||
| SC (40, 0) | ||||
| SD (39, 1) | ||||
Note. The values in parentheses are the number of laws (row, column).
Decimals indicate that the measure was effective for a part of the year.
Conversely, the highest number of state preemption measures without corresponding gun-control measures was 40, with most states having at least 30 (row quartiles 2–4). The difference in these 2 quartile ranges illustrates states’ wide use of preemption without substantive gun-control measures. Six states (AK, CT, HI, MA, NJ, NY) had the fewest preemptive measures, whether paired with gun-control measures or not. Four states (FL, MD, PA, RI) had the most gun-control measures that were paired with preemption (8.75–16) but among the fewest state preemption measures without gun-control measures (24–28).
By contrast, 9 states had the fewest gun-control measures with corresponding preemption but the most preemptive measures without corresponding gun-control measures (KS, ME, MO, MT, NM, ND, OH, SC, SD). Thus, in these states, there were few to no statewide gun-control measures, but localities were also preempted from engaging in policymaking over these gun-control policy topics—creating state policy environments that almost exclusively favored gun rights. Moreover, as the quartile ranges indicate, the differences in the contexts between these 9 states and the 12 states in the closest quartiles to these (AR, GA, ID, KY, MS, NH, TX, VT WV, AL, LA, WY) are fairly minimal.
In data not shown, in 2018, 42 states had 1 to 3 gun-rights measures with corresponding preemption, whereas 45 states preempted local governments from enacting laws related to gun rights without having a substantive state measure on 4 to 10 gun-rights policy topics (with the majority preempting 9). These pairings demonstrate that states used preemption to preserve state authority over a wide range of gun-rights topics. Of note, only 2 of the states without any such preemption had zero gun-rights substantive measures: New York and Massachusetts.
DISCUSSION
To our knowledge, this is the first evaluation of the relationship between state laws with substantive firearm measures and preemptive measures on the same firearm policy topic. The public health significance and variation across states is clearest when examining the pairing of substantive measures with corresponding preemptive measures for the same gun-control policy topic. States generally fell into 3 types of policy frameworks. A handful of states had the most gun-control measures with few to no preemptive measures (i.e., CT, HI, MA, NJ, NY). Another handful of states had nuanced policy environments with a mix of substantive gun-control measures and a moderate number of preemptive measures (e.g., FL, MD, PA, RI). Nonetheless, the majority of states fell into the third category of having preemptive measures over almost all gun-control policy topics without enacting substantive gun-control measures. In this way, preemption functioned as a form of “deregulation”6 by protecting gun rights and eliminating the ability of localities to enact gun-control protections.
In the minority of states that had laws with gun-control measures and simultaneously preempted localities from doing so, legislators’ goals may have been to create uniform gun-control protections across the state. In this context, preemption reduced further local policy action and innovation but with presumably less impact on the population compared with a state that did not otherwise enact substantive measures. Nonetheless, even if these states were seeking to ensure uniformity with respect to gun-control protections, the legislatures still preempted local control over a range of other gun-control topics. For example, Maryland and Rhode Island had the most substantive gun-control measures and preemptive measures on the same policy topic—16 and 15, respectively—but they still had preemption over 24 and 25 additional gun-control policy topics, respectively, without enacting substantive measures. As a result, the overall policy environment in these states is more nuanced and may reflect policy frameworks championed by diverse legislators over various periods.
In the case of gun rights, states preempted a wider range of gun-rights policy topics than the number of substantive gun-rights measures they had. Thus, even in states where legislators did not have the political capacity or will to pass statewide gun-rights laws, they succeeded in routinely passing statewide preemption to preserve state authority over a range of gun-rights policy topics. Previous research highlighted that preemption concentrates power in state legislatures and provides a “powerful indirect method of control” over local governments.16 We have provided direct evidence that the vast majority of states used preemption to support gun rights and remove communities’ authority to enact gun-control protections.
Our research also highlights that little changed in the national landscape of gun laws between 2009 and 2018, despite numerous mass shootings, public demonstrations, and public outcry, with the important exception of punitive preemption. The firearm industry was among the first to use preemption as a tool to block public health policymaking in localities where enacting such measures would have been the most politically feasible16; it has now succeeded in supporting a national framework that almost universally preempts local gun-control measures. Although a handful of states enacted additional gun-control laws (most notably CA, MD, DE, and VT), others repealed them, and some states enacted additional gun-rights laws. Ultimately, most measures in these states were in place for the entire study period. Although one might expect that localities, especially in areas affected by shootings, would have enacted more gun-control measures, the preemptive landscape may have made that impossible. This barrier to local policymaking also hindered states’ ability to learn from, and thus potentially adopt, local ordinances that may have proven successful at addressing firearm violence.
States’ enactment of punitive preemption measures against local governments and officials is a concerning trend. Punitive preemption is an extreme method to ensure that local governments and officials do not engage in policy activity disfavored by the state legislature. In addition to providing standing to sue local governments and officials, including the availability of monetary damages, some punitive preemption laws explicitly punish local officials for simply engaging in the democratic process to address the needs of their communities.17
The extensive use of preemption, coupled with a rise in punitive preemption, reinforces the national gun-rights policy framework. Once preemption passes, it is difficult to repeal. Therefore, in states where, and for policy topics for which, preemption is not yet widespread, such as punitive preemption, prevention is key.18 Gun-control advocates can elevate antipreemption advocacy alongside their propolicy work to defeat preemption before it passes. Stakeholders in Nebraska, for example, have repeatedly defeated punitive preemption using this strategy. As seen in our results, Nebraska had a high number of both gun-control and gun-rights measures but also preserved local control by passing fewer preemptive measures than did other similarly situated states. One reason may be that Nebraska is unique in having a unicameral legislature, where state senators work more closely together and thus appreciate the range of issues across communities in the state.
The National Academy of Medicine (formerly known as the Institute of Medicine) and other experts have argued that states should enact minimum public health standards (floor preemption) to provide statewide protection and allow localities to engage in additional policymaking to meet the needs of their communies.6 , 19 Only 1 state, Illinois, regularly had minimum standards or a savings clause in the context of firearms. One possible explanation may be that Chicago has a high rate of firearm violence because of firearms trafficking into the city from surrounding states with strong gun-rights and weak gun-control laws.20 , 21 Given the lack of federal antitrafficking laws, Illinois, and thus Chicago, is left to fend for itself.21
Limitations
Like all studies, this study has limitations. First, despite diligent efforts to identify all possible gun laws, we may have missed some because we partially relied on other databases to construct our own. However, given the overall trend and lack of change during the period, such omissions are unlikely to challenge these results. Still, our indices are likely a crude measure of the strength of state policy environments, because we did not quantitatively assess the relative effectiveness of different measures in reducing mortality from firearms.
Second, we did not code state laws that would preempt the ability of local governments from passing gun-rights measures. Nonetheless, a review of the state statutes and other databases we used indicated that few to none of these laws exist. Yet, this issue warrants further investigation as a potential gun-control policy option.
Third, we did not examine local gun laws to assess whether localities in states without preemption do in fact enact firearm-related laws. Although anecdotal evidence suggests they do,22 a deeper investigation would add to our understanding of how preemptive laws affect public health policy environments.
Fourth, we did not include policy topics related to prohibited possessors because the original RAND State Firearm Law Database did not collect these data. We also did not collect or assess federal law or compare federal requirements with state laws.
Last, we did not look at bills that were introduced but not passed or laws that became effective after 2018, so we cannot give a full picture of state policymaking on firearms. As a result, although little changed in the national landscape of gun laws across the states, we should not conclude that there have not been efforts during or laws passed after our study period to make broader changes. Further research is needed to address these issues.
Public Health Implications
Firearm violence is a substantial public health problem. Rather than enact strong gun-control measures, the majority of US states did not engage in substantive policymaking but preempted the ability of local governments to do so. Even states that had substantive gun-control measures preempted local control over other policy topics. Our study shows that the majority of states refrained from providing statewide public health protections and simultaneously used preemption to support gun rights by removing local communities’ authority to enact gun-control measures.
ACKNOWLEDGMENTS
This research was supported by the Robert Wood Johnson Foundation and the Urban Institute (Policies for Action grant 76098).
The authors wish to thank Shrivats Sanganaria, JD, and Mallory Yung, MPH, for their research assistance.
Note. The views expressed here do not necessarily reflect the views of the Robert Wood Johnson Foundation or the Urban Institute.
CONFLICTS OF INTEREST
The authors have no conflicts of interest to declare.
Footnotes
See also Blocher, p. 1192.
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