For discussion of the influence of the frontier on American gun culture, seeRobert J. Spitzer, The Politics of Gun Control 9-12 (1st ed. 1995); B. Bruce-Biggs, The Great American Gun War,Pub. Int., Fall 1976, at 37, 61; and Dan M. Kahan, The Secret Ambition of Deterrence, 113 Harv. L. Rev. 413, 454–55 (1999). See also William R. Tonso, Gun and Society: The Social and Existential Roots of the American Attachment to Firearms 38 (1982) (noting that guns can be “positively or negatively associated with Daniel Boone, the Civil War, the elemental lifestyles [of] the frontier,” and other concepts).

At oral argument in District of Columbia v. Heller, 554 U.S. 570 (2008), Justice Kennedy referred to “the right of people living in the wilderness to protect themselves” and the “concern of the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that.” Transcript of Oral Argument at 8, 30, Heller, 554 U.S. 570 (No. 07-290).

McDonald v. City of Chicago, 130 S. Ct. 3020 (2010); Heller, 554 U.S. 570.

See Nicholas J. Johnson, Beyond the Second Amendment: An Individual Right to Arms Viewed Through the Ninth Amendment, 24 Rutgers L.J. 1, 24 (1992) (“By many accounts the framers envisioned a rural agrarian based America. . . . [W]e can usefully ask whether disarmament advocacy is driven by an urban vision that exalts luxury at the expense of individual liberty. To the degree it is, it may be in conflict with our core constitutional values.”).

See Adam Winkler, Gunfight: The Battle over the Right to Bear Arms in America 13 (2011); see also Dodge City, Kan., City Ordinances no. 16, § 11 (Sept. 22, 1876) (“[A]ny person who shall in the City of Dodge City, carry concealed, or otherwise, about his or her person, any pistol, bowie knife, sling shot, or other dangerous or deadly weapon, except United States Civil Officers, State, County, Township or City officers shall be fined . . . Seventy-Five Dollars.”).

See Winkler, supra note 4, at 172-73.

See id. at 165 (citing Robert R. Dykstra, The Cattle Towns (1968)); see also Heller, 554 U.S. at 715 (Breyer, J., dissenting) (“Two hundred years ago, most Americans, many living on the frontier, would likely have thought of self-defense primarily in terms of outbreaks of fighting with Indian tribes, rebellions such as Shays’ Rebellion, marauders, and crime-related dangers to travelers on the roads, on footpaths, or along waterways.”).

Heller, 554 U.S. at 626-27 (“[N]othing 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.”).

See infra notes 165–172 and accompanying text; see also Heller, 554 U.S. at 683-85 (Breyer, J., dissenting) (“Boston, Philadelphia, and New York City, the three largest cities in America during that period, all restricted the firing of guns within city limits to at least some degree. . . . Furthermore, several towns and cities (including Philadelphia, New York, and Boston) regulated, for fire-safety reasons, the storage of gunpowder, a necessary component of an operational firearm.”); Lee Kennett & James LaVerne Anderson, The Gun in America: The Origins of a National Dilemma 48 (1975) (“[D]uring the colonial period, the urban areas were relatively free of the consistent use of firearms.”).

554 U.S. 570 (2008).

130 S. Ct. 3020 (2010).

As explained in more detail below, a simple headcount of existing municipal gun control laws is likely to underrepresent support for urban gun control, since state preemption laws make it difficult or impossible for many cities to regulate guns as they might otherwise choose to do. See infra Section III.B.

See, e.g.,Winkler, supra note 4, at 14 (“The debate over guns is usually portrayed as a cultural battle between urban and rural, with the latter seeing guns as part of their cultural heritage of hunting.”); Dan M. Kahan, The Gun Control Debate: A Culture-Theory Manifesto, 60 Wash. & Lee L. Rev. 3, 4-5 (2003); Dan M. Kahan & Donald Braman, More Statistics, Less Persuasion: A Cultural Theory of Gun-Risk Perceptions, 151 U. Pa. L. Rev. 1291, 1292 (2003); David Brooks & Gail Collins, What We Talk About When We Talk About Guns, N.Y. Times: Opinionator (July 25, 2012, 1:22 PM), http://opinionator.blogs.nytimes.com/2012/07/25 /what-we-talk-about-when-we-talk-about-guns (David Brooks: “The gun control debate is no longer about guns. It’s a culture war between urbanites and rural people.”).

For a detailed argument that the “individual” Second Amendment right is largely the product of a socio-cultural movement, seeReva B. Siegel, Dead or Alive: Originalism as Popular Constitutionalism in Heller, 122 Harv. L. Rev. 191 (2008).

Heller, 554 U.S. at 626-27 & n.26.

See generally Joseph Blocher, Categoricalism and Balancing in First and Second Amendment Analysis, 84 N.Y.U. L. Rev. 375 (2009) (describing categorical and balancing approaches).

This is not an Article about what was long the central battle in Second Amendment law and scholarship—whether the Amendment protects only militias, or instead protects an “individual” right to gun ownership for non-militia-related purposes. As a matter of constitutional law, Heller and McDonald settled that question, coming down squarely on the side of an “individual” right whose “core” and “central component” is self-defense. But translating that principle into constitutional doctrine requires another step.See Richard H. Fallon, Jr., The Supreme Court, 1996 Term—Foreword: Implementing the Constitution, 111 Harv. L. Rev. 54, 56-57 (1997). That is the project I pursue here.

Heller, 554 U.S.at 626-27; McDonald v. City of Chicago, 130 S. Ct. 3020, 3050 (2010).

See Blocher, supra note 14, at 405-11.

In the context of municipal gun control, there are especially good reasons to avoid a narrow focus on the Founding era, since technically it was the Fourteenth Amendment that made the Second applicable against states and cities. See Ezell v. City of Chicago, 651 F.3d 684, 702 (7th Cir. 2011) (arguing that for state and local laws, “the focus of the original-meaning inquiry is carried forward” to the Reconstruction era).

Heller, 554 U.S. at 627 n.26.

See infra Section I.B.

See, e.g.,United States v. McCane, 573 F.3d 1037, 1047-49 (10th Cir. 2009) (Tymkovich, J., concurring) (questioning whether felon-in-possession rules are “longstanding”); Carlton F.W. Larson, Four Exceptions in Search of a Theory: District of Columbia v. Hellerand Judicial Ipse Dixit, 60 Hastings L.J. 1371, 1374-76 (2009) (same); Allen Rostron, Justice Breyer’s Triumph in the Third Battle over the Second Amendment, 80 Geo. Wash. L. Rev. 703, 731-32 (2012) (“Although Justice Scalia’s opinion in Heller characterized disarming felons as a long-standing tradition, federal law did not disqualify any felons from possessing firearms until 1938 and did not disqualify nonviolent felons until 1961.”).

See, e.g.,United States v. Skoien, 614 F.3d 638, 641 (7th Cir. 2010) (en banc) (concluding that it would be “weird” if a gun control law were to become constitutional simply as a function of its age); Blocher, supra note 14, at 413 (“[T]he majority’s attempt to create categories neither reflects nor enables a coherent account of the Second Amendment’s core values, whatever they may be.”); Civil Rights: The HellerCase: Minutes from a Convention of The Federalist Society, 4 N.Y.U. J. L. & Liberty 293, 301-05 (2009) (remarks of Prof. Nelson R. Lund, George Mason University School of Law).

See Rostron, supra note 21, at 706-07, 756-57 (describing the use of a balancing approach in federal courts after Heller andMcDonald); see also Adam Winkler, Scrutinizing the Second Amendment, 105 Mich. L. Rev. 683, 715-26 (2007) (describing the “reasonable regulation standard” used by state courts evaluating gun control under state constitutional provisions).

See Heller, 554 U.S. at 689-90 (Breyer, J., dissenting) (describing a test that would “ask[] whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests”).

See infra notes 95-101 and accompanying text.

See infra Section III.A.

See, e.g., David J. Barron, Why (and When) Cities Have a Stake in Enforcing the Constitution, 115 Yale L.J. 2218 (2006); Mark D. Rosen, Our Nonuniform Constitution: Geographical Variations of Constitutional Requirements in the Aid of Community, 77 Tex. L. Rev. 1129, 1133 (1999) [hereinafter Rosen, Our Nonuniform Constitution]; Mark D. Rosen, The Surprisingly Strong Case for Tailoring Constitutional Principles, 153 U. Pa. L. Rev. 1513, 1516 (2005) [hereinafter Rosen, Tailoring]; Richard C. Schragger, The Role of the Local in the Doctrine and Discourse of Religious Liberty, 117 Harv. L. Rev. 1810 (2004).

See, e.g., Rosen, Tailoring, supra note 27, at 1516-17; Schragger, supra note 27, at 1818.

Kristin A. Goss, Disarmed: The Missing Movement for Gun Control in America 162-65 (2006); see also Glenn H. Utter, Encyclopedia of Gun Control and Gun Rights 201 (2000).

See infra Section III.B.

See generally Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 Stan. L. Rev. 115 (2010) (arguing that the federal powers enumerated in Article I, Section 8 should be understood in light of collective action problems among the states); Richard L. Revesz, Federalism and Interstate Environmental Externalities, 144 U. Pa. L. Rev. 2341, 2346 (1996) (arguing that interstate spillover effects can justify federal regulation).

District of Columbia v. Heller, 554 U.S. 570, 627 (2008); see Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443, 1480-81 (2009) (describing “[t]he difficulty with a ‘dangerous and unusual weapons’ test”).

See Hamling v. United States, 418 U.S. 87, 104-05 (1974). To be clear, not every element of the constitutional test for obscenity is locally tailored—a jury must also determine “whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Miller v. California, 413 U.S. 15, 24 (1973). That inquiry is not conducted through the lens of community standards. Pope v. Illinois, 481 U.S. 497, 500-01 (1987). An analogous inquiry in Second Amendment doctrine might ask whether a weapon, even though uncommon, has serious value for self-defense.

See Heller, 554 U.S. at 626 (“[T]he majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.”).

See infra notes 328-342 and accompanying text.

See Jeffrey M. Jones, Public Believes Americans Have Right to Own Guns, Gallup, Mar. 27, 2008, http://www.gallup.com/poll/105721/Public-Believes-Americans-Right-OwnGuns.aspx.

Matthew Bennett, Misfire: How the Debate over Gun Rights Ignores Reality,1 Alb. Gov’t L. Rev. 482, 488 (2008) (“Americans not only believe in Second Amendment rights, they support strong gun laws.”); Philip J. Cook & Jens Ludwig, Fact-Free Gun Policy?, 151 U. Pa. L. Rev. 1329, 1330-37 (2003) (reporting that at least three-quarters of respondents in a national survey supported registration and child proofing of all handguns, background check requirements for private gun sales, and denial of guns to those convicted of domestic violence misdemeanors).

See Washington Post-ABC News Poll, Wash. Post (Jan. 13-16, 2011), http:// http://www.washingtonpost.com/wp-srv/politics/polls/postpoll_01172011.html (reporting that nearly twice as many respondents (57% vs. 29%) believed stricter enforcement of existing laws would more effectively reduce gun violence than would passing new laws).

Erik Luna, The .22 Caliber Rorschach Test,39 Hous. L. Rev. 53,79-81 (2002).

William R. Tonso, Social Science and Sagecraft in the Debate over Gun Control, 5 Law & Pol’y Q. 325, 330-31 (1983); see also Kennett & Anderson, supra note 8, at 254-56 (contrasting “cosmopolitan” urban and “shirtsleeve” rural views on guns).

Michael P. O’Shea, Federalism and the Implementation of the Right to Arms, 59 Syracuse L. Rev. 201, 209-13 (2008).

See Spitzer, supra note 1, at 13 (“Those who compose and support the active gun culture are overwhelmingly white males, live in rural areas (especially in the South), are likely to be Protestant, and are from ‘old stock’ . . . . Conversely, those for whom the gun culture carries the least appeal are likely to be females, from larger metropolitan areas, from the Northeast and from more recent immigrant descent.”); Luna, supra note 39, at 81 (“A final geographic phenomenon of the pro-gun culture cuts across both the South and the West: rural, small-town America. In the United States, inhabitants of countryside regions are more likely to own firearms and oppose gun control laws.”); Erwin Chemerinsky, Putting the Gun Control Debate in Social Perspective, 73 Fordham L. Rev. 477, 477 (2004).

Michael O’Shea makes a thoughtful and convincing argument for constitutional deference to state regulations, but disclaims the urban/rural divide, arguing that “when efforts are made to paint the conflict over guns as urban versus rural, it is useful to recall that the contemporary legal landscape differs greatly from this stereotype.” O’Shea, supra note 41, at 212; see also id. at 209 (“The major divide on guns is no longer between the rural South and the rest of the nation. Instead it is between several highly urbanized coastal states and cities, whose gun laws reflect a common denominator I call the secondary gun culture, and the rest of the nation—Midwest, South, and West—whose laws reflect America’s primary gun culture.”).

In part because my goal is to show how the cultures can coexist, I make no effort here to code urban or rural gun culture as “primary.” My major point of departure from O’Shea is with regard to treating states as the sole unit of analysis. O’Shea argues:

[T]he smallest appropriate geographic unit for firearms policy (and for most culturally divisive issues) is not the city or county, but the state—because that is the minimum geographic unit for living a balanced life. Rural and exurban residents need cities to visit. Urbanites need to escape to quieter areas.

Id. at 212. Though I fully agree that a mix of urban and rural experience helps one lead a “balanced life,” I cannot see how the Constitution compels as much, nor even how that principle supports O’Shea’s conclusion. If a mixture of urban and rural life is important, then doctrine should focus on that balance, not on state borders, which were not drawn to balance cities and “quieter areas” and do a bad job of it in any event.

Carl T. Bogus, Gun Control and America’s Cities: Public Policy and Politics, 1 Alb. Gov’t L. Rev. 440, 463 (2008); see also Legal Cmty. Against Violence, Regulating Guns in America: An Evaluation and Comparative Analysis of Federal, State and Selected Local Gun Laws (2008) [hereinafter Regulating Guns in America] (reviewing local gun laws in Boston, Chicago, Cleveland, Columbus, Hartford, Los Angeles, Newark, New York, Omaha, and San Francisco, cities “in states that presently provide local jurisdictions broad authority to regulate firearms”).

See infra notes 98-104 and accompanying text.

Gary Kleck & Marc Gertz, Armed Resistance to Crime: The Prevalence and Nature of Self-Defense with a Gun, 86 J. Crim. L. & Criminology 150, 184 tbl.2 (1995) (basing figures on phone survey designed by authors).

Michael R. Rand, U.S. Dep’t of Justice, Guns and Crime: Handgun Victimization, Firearm Self-Defense, and Firearm Theft 1-2 (1994) (basing figures on the National Crime Victimization Survey).

Compare John R. Lott, Jr., More Guns, Less Crime: Understanding Crime and Gun-Control Laws (3d ed. 2010), with Ian Ayres & John J. Donohue III, Shooting Down the “More Guns, Less Crime” Hypothesis, 55 Stan. L. Rev. 1193 (2003).

See generally James Lindgren, Fall from Grace: Arming America and the Bellesiles Scandal, 111 Yale L.J. 2195 (2002) (reviewing Michael Bellesiles’ Arming America (2000), and identifying numerous errors and apparent falsifications in the book’s historical analysis).

See Steven D. Levitt & Stephen J. Dubner, Freakonomics: A Rogue Economist Explores the Hidden Side of Everything 133 (rev. ed. 2010) (recounting “the troubling allegation that Lott actually invented some of the survey data that support his more-guns/less-crime theory” and reporting that “[w]hen other scholars have tried to replicate his results, they found that right-to-carry laws simply don’t bring down crime.”). Cf. Lott v. Levitt, 556 F.3d 564, 566-67 (7th Cir. 2009) (upholding dismissal of a defamation claim brought by John Lott against Steven Levitt on the basis of this passage).

See David B. Kopel, The Samurai, the Mountie, and the Cowboy: Should America Adopt the Gun Controls of Other Democracies? 419-22 (1992); Richard Hofstadter, America as a Gun Culture, Am. Heritage, Oct. 1970, at 84; Luna, supra note 39, at 82-85; Eric Primm et al., Race, Fear, and Firearms: The Roles of Demographics and Guilt Assuagement in the Creation of a Political Partition, 13 J. Afr. Am. Stud. 63, 65 (2009).

This is not to say that the gun culture unanimously opposes gun control; surveys have consistently found that large majorities of Americans—necessarily including some members of the gun culture—support reasonable gun control and the enforcement of existing gun laws. See sources cited supra notes 37-38; see also Susan Saulny, For Some, Owning Guns Doesn’t Necessarily Mean Liking Them, N.Y. Times, Mar. 9, 2013, http:// http://www.nytimes.com/2013/03/10/us/gun-owners-arent-always-gun-lovers.html (noting views of gun owners who “express[] support for stricter gun control legislation”).

David C. Williams, The Mythic Meanings of the Second Amendment: Taming Political Violence in a Constitutional Republic 170 (2003); see also id. at 175 (“[T]he gun culture has a core constituency—white, rural males with conservative values, especially in the South.”).

Jan E. Dizard et al., The War over Guns: Introduction: Numbers Don’t Count, in Guns in America: A Reader 165, 169 (Jan E. Dizard et al. eds., 1999); see also Williams, supra note 53, at 71 (“American gun owners . . . reside primarily in rural areas . . . .”).

Bogus, supra note 44, at 464 (citing The Gallup Poll: Public Opinion 2005, at 141 (Alec M. Gallup & Frank Newport eds., 2006)); see also Gary Langer, Some Gun Measures Broadly Backed but the Politics Show an Even Split, Mar. 12, 2013, http:// http://www.langerresearch.com/uploads/1147a2GunControl.pdf (reporting that gun ownership is “nearly doubly common in rural compared with urban areas”); Chuck Raasch, In Gun Debate, It’s Urban vs. Rural, USA Today, Feb. 27, 2013, http://www.usatoday.com /story/news/nation/2013/02/27/guns-ingrained-in-rural-existence/1949479 (“A compilation of December [2012] Gallup polls showed that rural Americans—roughly one-sixth of the population—are more than twice as likely to have a gun in the home than those living in large cities.”).

See, e.g.,Deborah Azrael et al., State and Local Prevalence of Firearms Ownership Measurement, Structure, and Trends, 20 J. Quantitative Criminology 43, 52 (2004) (“The percent of the state’s population that was rural in 1950 is highly correlated (across states) with household gun ownership over four decades later . . . .”).

Sabrina Tavernise & Robert Gebeloff, Share of Homes with Guns Shows 4-Decade Decline, N.Y. Times, Mar. 9, 2013, http://www.nytimes.com/2013/03/10/us/rate-of-gun-ownership -is-down-survey-shows.html.

A 2008 poll of voters found that only 30% of urban residents own guns, compared to 60% in rural areas; the same poll found 32% gun ownership in the East but 47% in the comparatively rural South. Nate Silver, Party Identity in a Gun Cabinet,N.Y. Times: FiveThirtyEight (Dec. 18, 2012, 12:39 AM), http://fivethirtyeight.blogs.nytimes.com/2012 /12/18/in-gun-ownership-statistics-partisan-divide-is-sharp.

Azrael et al., supra note 56, at 52; see Anthony A. Braga et al., The Illegal Supply of Firearms, 29 Crime & Just. 319, 325 (2002) (noting that geographic differences in ownership are “remarkably stable over time”). A 1998 survey similarly found 25% gun ownership in the Northeast and 60% in the East South Central Census area, which consists of Alabama, Kentucky, Mississippi, and Tennessee. Azrael et al., supra note 56, at 43. A 1992 Times/CBS News poll reported that only 31% of urban residents own guns, compared to 72% in rural areas. Spitzer, supra note 1, at 69. The same poll found 41% gun ownership in the Northeast, but 65% in the comparatively rural South. Id.

Philip J. Cook & Jens Ludwig, Guns in America: National Survey on Private Ownership and Use of Firearms, Nat’l Inst. Just. 2-3, 11 (1997), http://www.ncjrs.gov/pdffiles/165476.pdf.

Id. at 2-3 (noting that “recreation” is the most common reason for gun ownership); Spitzer, supra note 1, at 75 (“By far the most common reasons for gun ownership are hunting and related recreational uses, a fact consistent with the prevalence of long guns over handguns.”).

Kahan, supra note 12, at 5; see also Williams, supra note 53, at 153 (“The gun culture has embraced guns not just as a tool but as a central symbol of its whole set of cultural values.”).

Joan Biskupic, American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia 346 (2009); see also David B. Kopel, America’s Only Realistic Option: Promoting Responsible Gun Ownership, in Guns in America: A Reader, supra note 54, at 452, 455 (“New York City would be better off if it had laws like modern Dodge City, Kansas, where guns may be readily purchased and used for sports and self-protection—where, perhaps partly as a result, young people are exposed to models of responsible gun ownership.”).

James D. Wright et al., Under the Gun: Weapons, Crime, and Violence in America 113 (1983); see also Roberta Rampton, Obama Says Rural Voices Need to Be Heard in Gun Debate: Report, Reuters, Jan. 27, 2013, http://www.reuters.com/article/2013/01/27/us-obama-guns -idUSBRE90Q0BA20130127 (“If you grew up and your dad gave you a hunting rifle when you were 10, and you went out and spent the day with him and your uncles, and that became part of your family’s traditions, you can see why you’d be pretty protective of that.” (quoting President Obama)).

Bruce-Biggs, supra note 1, at 41.

Winkler, supra note 4, at 14 (“Self-defense, not hunting, is at the core of the right to bear arms . . . .”).

See, e.g., Transcript: The Republican Debate, N.Y. Times (Jan. 24, 2008), http:// http://www.nytimes.com/2008/01/24/us/politics/24text-debate.html (“I do support the right of individuals to bear arms, whether for hunting purposes or for protection purposes or any other reasons. That’s the right that people have.” (quoting Mitt Romney)); Barack Obama, Remarks by the President at the National Urban League Convention, White House (July 25, 2012), http://www.whitehouse.gov/the-press-office/2012/07/25/remarks-president-national -urban-league-convention (“I, like most Americans, believe that the Second Amendment guarantees an individual the right to bear arms. And we recognize the traditions of gun ownership that passed on from generation to generation—that hunting and shooting are part of a cherished national heritage.”).

See Alan J. Lizotte et al., Firearms Ownership for Sport and Protection: Two Not So Divergent Models, 46 Am. Soc. Rev. 499, 499-500 (1981)(finding a “sporting gun culture” but “only partial evidence of a subculture of protective gun ownership”).

Why Own a Gun? Protection Is Now Top Reason, Pew Research Center for the People and the Press, Mar. 12, 2013, http://www.people-press.org/2013/03/12/why-own-a-gun -protection-is-now-top-reason.

Tavernise & Gebeloff, supra note 57 (“According to an analysis of the [2012 General Social Survey], only a quarter of men in 2012 said they hunted, compared with about 40 percent when the question was asked in 1977.”).

Raasch, supra note 55 (“‘I live 15 miles from the nearest town or police station,’ says [Frank] Jezioro, [West Virginia’s] director of the Division of Natural Resources. ‘My family, my wife, my grandkids are there all the time. A home invasion—what good does it do me to call 911 and wait for someone to come and help me?’”).

Luna, supra note 39, at 82.

Lee T. Dresang, Gun Deaths in Rural and Urban Settings: Recommendations for Prevention, 14 J. Am. Board Fam. Prac. 107, 108 (2001)(“Just as regionally comparative studies suggest that firearm homicides are more of an urban problem, they generally show that firearm-related suicides and accidents are a bigger problem in rural areas.”); D.L. Nordstrom et al., Rural Population Survey of Behavioral and Demographic Risk Factors for Loaded Firearms, 7 Inj. Prevention 112, 112 (2001) (“Firearm unintentional and suicide death rates are raised in rural places, where one quarter of Americans live.” (citation omitted)).

See Michael L. Nance et al., Variation in Pediatric and Adolescent Firearm Mortality Rates in Rural and Urban U.S. Counties, 125 Pediatrics 1112 (2010);James E. Svenson et al., Pediatric Firearm-Related Fatalities: Not Just an Urban Problem, 150 Archives Pediatric & Adolescent Med. 583 (1996).

Helen A. Moore & Hugh P. Whitt, Multiple Dimensions of the Moral Majority Platform: Shifting Interest Group Coalitions, 27 Soc. Q. 423, 434 (1986); Tom W. Smith, The 75% Solution: An Analysis of the Structure of Attitudes on Gun Control, 1959-1977, 71 J. Crim. L. & Criminology 300, 303 (1980); The Pew Research Center, In Gun Debate, Several Options Draw Majority Support 10 (2013), http://www.people-press.org/files/legacy -pdf/01-14-13%20Gun%20Policy%20Release.pdf (finding that 60% of rural residents said it was more important to protect gun rights, while only 37% said it was more important to control ownership; for urban residents the figures were nearly the inverse: 37% and 57%); CNN/ORC Poll, CNN & ORC Int’l 41 (Mar. 18, 2013), http://i2.cdn.turner.com /cnn/2013/images/03/18/rel3a.pdf (finding that 72% of rural residents believe there should be either “no restrictions” or “minor restrictions” on guns, while only 46% of urban residents endorsed those positions).

Public Opinion on Gun Control Laws (Feb. 2013), Tex. Pol., http://laits.utexas.edu/txp_media /html/poll/features/gun_control_feature/slide1.html (dataset and methodology described at Sampling and Weighting Methodology for the February 2013 Texas Statewide Study, Tex. Pol., http://texaspolitics.laits.utexas.edu/11_9_16.html (last visited Sept. 18, 2013)).

Winkler, supra note 4, at 14 (“If it’s hard to persuade a hunter to give up the rifle his father gave him for his twelfth birthday, imagine the difficulty of persuading a person to disarm when he thinks his very life is at stake.”).

Gary Kleck, Crime, Culture Conflict and the Sources of Support for Gun Control: A Multilevel Application of the General Social Surveys, 39 Am. Behav. Scientist 387, 397 (1996) (“[G]un owners who hunted were even more likely to oppose gun control than owners who did not hunt.”).

Id. at 397-98.

See supra notes 54-59 and accompanying text.

Kahan & Braman, supra note 12, at 1300; see also Spitzer, supra note 1, at 120 (“[G]un ownership and opposition to gun controls are closely related.”).

Kristin A. Goss, Policy, Politics, and Paradox: The Institutional Origins of the Great American Gun War, 73 Fordham L. Rev. 681, 705 (2004).

Kleck, supra note 78, at 401 (citing Hazel Erskine, The Polls: Gun Control, 36 Pub. Opinion Q. 455 (1972)); Smith, supra note 75, at 303.

Winkler, supra note 4, at 80-81 (noting that “police chiefs [have been] among the strong supporters of reasonable gun control,” and that since the NRA has attacked those who advocate for such controls, most established police organizations have broken ties with the NRA). Notably, some sheriffs in rural areas have taken the opposite position. Dan Frosch, Some Sheriffs Object to Call for Tougher Gun Laws, N.Y. Times, Jan. 31, 2013, http://www.nytimes.com/2013/02/01/us/some-sheriffs-object-to-call-for-tougher-gun -laws.html (noting that dozens of sheriffs have publicly opposed calls for stiffer gun laws, and that “[t]heir jurisdictions largely include rural areas, and stand in sharp contrast to those of urban police chiefs, who have historically supported tougher gun regulations”).

Utter, supra note 29, at 308-09 (noting that the United States Conference of Mayors has consistently advocated gun control); see also David Hinson, Pressure Points: How a Combination of Methods Employed to Reduce Urban Firearm Crime Threatens the 4th Amendment and Proposed Solutions, 43 New Eng. L. Rev. 869, 871 (2009) (discussing the genesis of the Mayors Against Illegal Guns coalition); Mayors Against Illegal Guns, http:// http://www.mayorsagainstillegalguns.org (last visited Sept. 15, 2013).

See, e.g., Clinton Tops Florida Favorite Sons in 2016 Race, Quinnipiac University Poll Finds 91% Back Universal Gun Background Checks, Quinnipiac U. Poll 5 (Mar. 21, 2013), http:// http://www.quinnipiac.edu/images/polling/fl/fl03212013.pdf (reporting poll results from Florida in which 55% of urban respondents favored stricter gun control in the state, as compared to only 38% of rural respondents); Michael Virtanen, Poll Shows New York Regions Divided over Gun Control Regulations, Saratogian, Feb. 4, 2013, http://www.saratogian.com/articles /2013/02/04/news/doc511010e34ebb8914755213.txt (finding that 82% of New York City residents support the state’s new gun control law, while only half of upstate residents do).

Spitzer, supra note 1, at 181 (“America’s 20,000 gun regulations belie the central, often ignored fact that nearly all these regulations exist at the state and local levels.”); Jon S. Vernick & Lisa M. Hepburn, State and Federal Gun Laws: Trends for 1970-99, in Evaluating Gun Policy: Effects on Crime and Violence 345, 363 (Jens Ludwig & Philip J. Cook eds., 2003) [hereinafter Evaluating Gun Policy] (“The key to the 20,000 calculation, therefore, would appear to be the contribution of local laws to the total.”); see also Scott Medlock, NRA = No Rational Argument? How the National Rifle Association Exploits Public Irrationality, 11 Tex. J. C.L. & C.R. 39, 40 n.6 (2005)(“There are only five federal gun laws, most of which restrict who can purchase a firearm and provide for background checks to enforce those prohibitions.”).

The Legal Community Against Violence has compiled a comprehensive review of federal and state gun laws, as well as a sampling of major municipal gun laws. See Regulating Guns in America, supra note 44, at i. The first category of regulations it reviews is “Classes of Weapons.” See id. at 18-67.

Id. at 68-143 (reviewing regulations regarding “Sales and Transfers”).

Id. at 144-75 (reviewing regulations regarding “Gun Dealers and Other Sellers”).

Id. at 176-215 (reviewing regulations regarding “Gun Ownership”).

Id. at 216-41 (reviewing regulations regarding “Consumer and Child Safety”).

In New York City, the cost, delay, and highly discretionary standard involved in permitting are thought to be significant deterrents to gun ownership, as the city has issued fewer than 40,000 premises permits for its 8.3 million residents. Winkler, supra note 4, at 41; see also Lawrence Rosenthal, Second Amendment Plumbing After Heller: Of Standards of Scrutiny, Incorporation, Well-Regulated Militias, and Criminal Street Gangs, 41 Urb. Law. 1, 39 (2009) (“New York City has been characterized as maintaining a virtual ban on handguns.”).

See infra Section III.B.

Cf. Galvan v. Superior Court, 452 P.2d 930, 938 (Cal. 1969) (in bank) (“That problems with firearms are likely to require different treatment in San Francisco County than in Mono County should require no elaborate citation of authority.”).

Richard Florida, A Growing Divide in Urban Gun Violence, Atlantic Cities (Jan. 10, 2013), http://www.theatlanticcities.com/neighborhoods/2013/01/growing-divide-urban-gun -violence/4328.

The Geography of Gun Violence in Connecticut, Conn. Ass’n for Human Services 1 (Feb. 2013), http://www.cahs.org/pdf/CAHS_CT_Geography%20_of_Gun_Violence.pdf.

Bogus, supra note 44, at 444;see also Charles C. Branas et al., Urban-Rural Shifts in Intentional Firearm Death: Different Causes, Same Results, 94 Am. J. Pub. Health 1750 (2004) (finding firearm homicides to be more prevalent in urban counties and firearm suicides to be more prevalent in rural counties).

See David E. Olson & Michael D. Maltz, Right-to-Carry Concealed Weapon Laws and Homicide in Large U.S. Counties: The Effect on Weapon Types, Victim Characteristics, and Victim-Offender Relationships, 44 J.L. & Econ. 747, 749 (2001). Compare Lott, supra note 48 (arguing that more guns yield less crime), with Ayres & Donohue, supra note 48 (disputing this claim).

Jeffrey Fagan & Deanna L. Wilkinson, Guns, Youth Violence, and Social Identity in Inner Cities, 24 Crime & Just. 105, 106 (1998) (“Virtually all increases in homicide rates from 1985 to 1990 among people ten to thirty-four years of age were attributable to deaths among African American males; most of the increase was in firearm homicides, and these were overwhelmingly concentrated demographically and spatially among African American males in urban areas.” (citation omitted)); Marianne Gausche et al., Violent Death in the Pediatric Age Group: Rural and Urban Differences, 5 Pediatric Emergency Care 64, 64 (1989).

Fagan & Wilkinson, supra note 100, at 109 (referring to the “ecology of danger” of guns and violent events in inner-city neighborhoods); see also Jeffrey Fagan et al., Social Contagion of Violence, in The Cambridge Handbook of Violent Behavior and Aggression 688, 717 (Daniel J. Flannery et al. eds., 2007)(describing urban gun violence as a “contagion,” and concluding that “[b]ecause the recent epidemic cycle of violence was in reality a gun homicide epidemic, the case for gun-oriented policing strategies is much stronger than practices based on the more diffuse and unsupported theory of disorder control and order-maintenance strategies” (citations omitted)).

District of Columbia v. Heller, 554 U.S. 570, 599, 630 (2008); see also McDonald v. City of Chicago, 130 S. Ct. 3020, 3036 (2010) (same).

Winkler, supra note 4, at 14; see also Kleck & Gertz, supra note 46, at 178 (finding that those who reported using a gun in self-defense “are disproportionately likely to reside in big cities compared to other people, and particularly when compared to gun owners, who reside disproportionately in rural areas and small towns”); Patrik Jonsson, Gun Nation: Inside America’s Gun-Carry Culture, Christian Sci. Monitor, Mar. 11, 2012, http://www .csmonitor.com/USA/Society/2012/0311/Gun-nation-Inside-America-s-gun-carry-culture (“It is here along the edges of America’s urban renaissance that the right-to-carry movement is burgeoning . . . .”).

See supra notes 54-60 and accompanying text; see also Steven Thomas Seitz, Guns, Politics, and Public Policy, in Guns in America: A Reader, supra note 54, at 125, 126 (“[I]n a crowded urban environment, the handgun is a greater source of fear than a government’s potential failure to maintain the proper social order, save those situations of urban unrest when residents of the metropolis, like the citizens of Detroit, rush to buy handguns for a sense of security and self-protection.”).

See supra notes 81-86 and accompanying text.

See Gary Kleck, Targeting Guns: Firearms and Their Control 338-39 (1997) (noting polls suggesting that many Americans favor gun control despite not believing that it will reduce crime or violence); see also Spitzer, supra note 1, at 121 (same).

Kleck, supra note 78, at 395, 396-97 tbl.2.

Kahan, supra note 12, at 4-5.

Kennett & Anderson, supra note 8, at 254.

Biskupic, supra note 63, at 346.

Seitz, supra note 104, at 126.

Kennett & Anderson, supra note 8, at 48.

Saulny, supra note 52 (“We’ve been struggling with this whole realm of issues—feelings about guns . . . because we’ve talked a lot about gun policy, but not about gun culture.” (quoting Michael Dimock, Director of the Pew Research Center for the People and the Press)).

See, e.g., Zell Miller, The Democratic Party’s Southern Problem, N.Y. Times, June 4, 2001, http://www.nytimes.com/2001/06/04/opinion/the-democratic-party-s-southern -problem.html (“Gun control . . . is about values. What you are for says a lot about who you are and who you aren’t.”); see also Brannon P. Denning, In Defense of a “Thin” Second Amendment: Culture, the Constitution, and the Gun Control Debate, 1 Alb. Gov’t L. Rev. 419, 420 (2008) (“The gun control debate is at bottom a cultural debate.”).

See Bruce-Biggs, supra note 1, at 38 (“In addition to the usual political charges of self-interest and stupidity, participants in the gun-control struggle have resorted to implications or downright accusations of mental illness, moral turpitude, and sedition.”).

Brooks & Collins, supra note 12 (Brooks: “Those who live in rural areas, where gun ownership is more common, take arguments about gun control as a sign that the city snobs want to tell them how to lead their lives.”); see also Don B. Kates, Jr., Gun Control: Separating Reality from Symbolism, 20 J. Contemp. L. 353, 377 (1994) (arguing that the motivation behind “disarming the public . . . is the desire of persons holding certain moral and cultural views to have those views symbolically validated by the law and the contrary view of others condemned”).

David Sherfinski, Biden Suggests Shotgun, Not AR-15, for Self-Defense, Wash. Times, Feb. 19, 2013, http://www.washingtontimes.com/news/2013/feb/19/biden-shoots-down-comparison -drug-and-gun-laws.

See Chemerinsky, supra note 42, at 481 (“The political and value choice [about gun control] must be understood in the larger cultural context. Society is obviously deeply divided over the issue of gun control and the meaning of the Second Amendment. There appears to be no bridge between the two sides.”).

Michael R. Bloomberg & Thomas M. Menino, About the Coalition: Message from the Co-Chairs, Mayors Against Illegal Guns, http://www.mayorsagainstillegalguns.org/html /about/about.shtml (last visited Apr. 23, 2012).

Chad Livengood, Court Affirms Gun Rights, Springfield News-Leader (Mo.), June 27, 2008, at A1, available at 2008 WLNR 26840870.

McDonald v. City of Chicago, 130 S. Ct. 3020, 3095 (2010) (Stevens, J., dissenting) (“When one legal standard must prevail across dozens of jurisdictions with disparate needs and customs, courts will often settle on a relaxed standard.”).

O’Shea, supra note 41, at 219.

Mark V. Tushnet, Out of Range: Why the Constitution Can’t End the Battle over Guns 101 (2007) (“It would be nice to think that disagreements over policy could be resolved by empirical evidence. And maybe some can—but not, I think, policy disputes about which people care intensely.”); Kahan & Braman, supra note 12, at 1292 (noting that people will “credit or dismiss empirical evidence . . . depending on whether it coheres or conflicts with their cultural values”).

David Kairys, Rebuttal, Challenging the Normalcy of Handgun Violence, 156 U. Pa. L. Rev. PENNumbra 194, 198 (2007).

See Kahan, supra note 12; Kahan & Braman, supra note 12.

Kahan, supra note 12, at 11.

Eric Gorovitz, California Dreamin’: The Myth of State Preemption of Local Firearm Regulation, 30 U.S.F. L. Rev. 395, 396 (1996)(“As with other public health problems, wide variation exists among communities in the nature and extent of firearm-related morbidity and mortality. Such variation suggests that local governments need the ability to adopt reasonable measures to deal with the specific problems faced by their communities.” (footnote omitted)); see also Franklin E. Zimring & Gordon Hawkins, The Citizen’s Guide to Gun Control 174 (1987) (“Significant variations exist in attitudes toward handguns, and it is only to be expected that these attitudinal differences should more quickly lead to a wider spectrum of state and local variation than to a unified national strategy.”); Anthony P. Badaracco, Note, Firearm Federalism, 65 N.Y.U. Ann. Surv. Am. L. 761, 789 (2010) (“[I]t is in precisely this sort of situation, when citizens’ interests vary and the law is unclear, that it is most important that regulation take place at a more local level of government.”).

See, e.g.,O’Shea, supra note 41, at 203-04.

Id. at 204.

See, e.g., The Geography of Gun Violence in Connecticut, supra note 97, at 1 (finding that, within the state of Connecticut, 69% of gun crimes in the state take place in three major cities, which account for just 11% of the state’s population).

Clayton E. Cramer, Concealed Weapon Laws of the Early Republic: Dueling, Southern Violence, and Moral Reform 1 (1999) (“[T]he states commonly thought of today as ‘redneck country’ . . . were in the forefront of laws regulating the concealed carrying of deadly weapons.”).

As noted below, however, the latter may be a function of state preemption laws that forbid local gun control. See infra Section III.B.

Establishing an appropriate baseline from which to make these adjustments is beyond the scope of this Article—the argument here is simply one of tailoring. For notable efforts to do the former, see Darrell A.H. Miller, Text, History, and Tradition: What the Seventh Amendment Can Teach Us About the Second, 122 Yale L.J. 852 (2013); and Volokh, supra note 32.

District of Columbia v. Heller, 554 U.S. 570, 626-27 (2008).

Id. at 634 (internal quotation marks omitted).

See, e.g.,sources cited supra notes 21-22.

Heller, 554 U.S. at 626-27.

Id. at 627.

McDonald v. City of Chicago, 130 S. Ct. 3020, 3047 (2010) (plurality opinion) (“We made it clear in Heller that our holding did not cast doubt on . . . longstanding regulatory measures . . . . We repeat those assurances here.”).

Id. at 3050. Allen Rostron notes that the wording of Heller leaves it a bit unclear as to whether “longstanding” refers only to laws about felons and the mentally ill, or to all the listed gun control laws, but that “Justice Alito’s opinion in McDonald seems to assume that ‘longstanding’ describes every category of laws on the list, not just prohibitions on guns for felons and the mentally ill.” Rostron, supra note 21, at 715 n.64.

Rutan v. Republican Party of Ill., 497 U.S. 62, 95-96 (1990) (Scalia, J., dissenting) (quoted in Volokh, supra note 32, at 1450-51).

The Court has similarly relied on tradition to help identify which rights are covered by the Due Process Clauses. See, e.g., Lawrence v. Texas, 539 U.S. 558, 571-72 (2003); Washington v. Glucksberg, 521 U.S. 702, 720-22 (1997); Medina v. California, 505 U.S. 437, 445-47 (1992); see also Michael W. McConnell, Tradition and Constitutionalism Before the Constitution, 1998 U. Ill. L. Rev. 173, 174 (describing “traditionalist” approach to constitutional adjudication as distinct from originalist and sociological jurisprudential approaches, by which “the open-ended, normative language of the Constitution should be interpreted in light of the long-standing legal practices and traditions of the nation”).

Rostron, supra note 21, at 715; United States v. Skoien, 614 F.3d 638, 640 (7th Cir. 2010) (en banc) (“A 1938 law [banning possession by felons] may be ‘longstanding’ from the perspective of 2008, when Heller was decided, but 1938 is 147 years after the states ratified the Second Amendment.”).

See sources cited supra note 21 (questioning whether felon-in-possession rules are “longstanding”).

Volokh, supra note 32, at 1478-81 (describing and criticizing the “common use” test).

District of Columbia v. Heller, 554 U.S. 570, 625 (2008) (citing United States v. Miller, 307 U.S. 174, 178 (1939)). At oral argument, Justice Scalia suggested that the word “Arms” in the Second Amendment could be used in a “specialized sense” to denote a weapon “that was used in militias and . . . is nowadays commonly held.” Transcript of Oral Argument at 47, Heller, 554 U.S. 570 (No. 07-290).

Heller, 554 U.S. at 629.

Id. at 627 (quoting 4 William Blackstone, Commentaries *148).

The two are not necessarily exclusive. Historian Jack Rakove, for example, supports the use of contemporary cost-benefit analysis in Second Amendment doctrine, but has also written that “[i]t is doubtless important to establish as well that [a] regulation is made legitimate by a long history of prior legislation, judicial doctrines permitting such legislation,” and several other historical factors. Jack N. Rakove, The Second Amendment: The Highest Stage of Originalism, 76 Chi.-Kent L. Rev. 103, 107 (2000); see also infra notes 227-230 and accompanying text (describing connections between the two approaches).

Heller, 554 U.S. at 605 (defending use of nineteenth century sources).

583 F.3d 8 (1st Cir. 2009).

Rostron, supra note 21, at 741.

Rene E., 583 F.3d at 14-15.

I am particularly grateful to Georgetown 3L Mark Frassetto for identifying many of the historical materials cited here. A document collecting much of his research is available at Mark Anthony Frassetto, Firearms and Weapons Legislation up to the Early 20th Century, http://ssrn.com/abstract=2200991 (last visited Aug. 17, 2013).

See sources cited supra note 21 (questioning whether felon-in-possession rules are “longstanding”).

Statutes for the City of London, 1285, 13 Edw. (Eng.).

Statute of Northampton, 1328, 2 Edw. 3, c. 3 (Eng.).

See, e.g.,Patrick J. Charles, The Faces of the Second Amendment Outside the Home: History Versus Ahistorical Standards of Review, 60 Clev. St. L. Rev. 1, 8 (2012); Darrell A.H. Miller, Guns as Smut: Defending the Home-Bound Second Amendment, 109 Colum. L. Rev. 1278, 1317-18 (2009) (citing 4 William Blackstone, Commentaries *149).

Eugene Volokh, The First and Second Amendments, 109 Colum. L. Rev. Sidebar97, 101 (2009). It is possible that both readings are “correct.” As Saul Cornell notes, Blackstone (whom Miller cites) and Sir William Hawkins (on whom Volokh relies) had slightly different interpretations of the law in question, and since “the Founders were familiar with both English commentators . . . it seems likely that there may have been a range of views on interpreting this question.” Saul Cornell, The Right to Carry Firearms Outside of the Home: Separating Historical Myths from Historical Realities, 39 Fordham Urb. L.J. 1695, 1713 (2012).

2 Calendar of the Close Rolls, Richard II, at 92 (Nov. 2, 1381, Westminster) (H.C. Maxwell-Lyte ed., 1920); see also John Carpenter, Liber Albus [The White Book] 335 (Henry Thomas Riley ed., 1861) (1419) (specifying “[t]hat no one, of whatever condition he be, [may] go armed in the said city or in the suburbs, or carry arms, by day or by night,” except certain people connected to “great lords” or the royal family or when commanded to keep the peace by those same individuals).

3 Calendar of the Close Rolls, Henry IV, at 485 (Jan. 30, 1409, Westminster) (A.E. Stamp ed., 1931).

4 William Blackstone, Commentaries *148-49 (citation omitted).

See, e.g., Act of Jan. 29, 1795, ch. XXV, reprinted in 2 The Perpetual Laws of the Commonwealth of Massachusetts 259 (I. Thomas & E. T. Andrews eds., 1801); A Collection of All Such Acts of the General Assembly of Virginia, of a Public and Permanent Nature, as Are Now in Force 33 (Augustine Davis 1794);Francois-Xavier Martin, A Collection of Statutes of the Parliament of England in Force in the State of North Carolina 60-61 (Newbern 1792); see also Moore v. Madigan, 702 F.3d 933, 944 (7th Cir. 2012) (Williams, J., dissenting) (noting the Statute of Northampton’s influence on the colonies, in particular Massachusetts, North Carolina, and Virginia).

Saul Cornell, A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America 30 (2006); see also Saul Cornell & Nathan DeDino, A Well Regulated Right: The Early American Origins of Gun Control, 73 Fordham L. Rev. 487, 501 (2004) (“Defining exactly what circumstances constituted the crime of affray was . . . [a] complex, context-bound judgment.”).

See District of Columbia v. Heller, 554 U.S. 570, 631-34 (2008); id. at 683-87 (Breyer, J., dissenting).

Cornell & DeDino, supra note 164, at 505.

Id. at 505 n.120 (citing Act of Apr. 22, 1785, ch. 81, 1784-85 N.Y. Laws 152; Act of Nov. 16, 1821, ch. LXLIII, 1821 Tenn. Pub. Acts 78; Act of Jan. 30, 1847, ch. 79, 1846-1847 Va. Acts 67; A Collection of All the Laws of the Province of Pennsylvania: Now in Force 13, 39-40, 85, 197-200, 315-17 (1742), all of which applied specifically to cities).

Cornell & DeDino, supra note 164, at511 n.160 (citing Act of June 19, 1801, ch. XX, 1801 Mass. Acts 507 (regulating storage of gunpowder in Boston); Act of June 26, 1792, ch. X, 1792 Mass. Acts 208 (same); Act of Mar. 1, 1783, ch. XIII, 1783 Mass. Acts 218 (same); Act of Oct. 4, 1780, ch. V, 1780 Mass. Acts 326 (same)).

Cornell & DeDino, supra note 164,at 511 n.161 (citing Act of Dec. 6, 1783, ch. MLIX, 11 Pa. Stat. Ann. 209; An Act for the Continuance of an Act, Entitled “An Act for the Better Securing the City of Philadelphia from the Danger of Gunpowder,” ch. CCCLXXII, 1746 Pa. Laws 52; An Act for the Better Securing [of] the City of Philadelphia and Its Liberties from Danger of Gunpowder, § II, 1725 Pa. Laws 31).

Act of Apr. 13, 1784, ch. 28, 1784 N.Y. Laws 627, cited in Cornell & DeDino, supra note 164, at 511 n. 162.

Act of Mar. 1, 1783, chap. XIII, 1783 Mass. Acts 218, cited in District of Columbia v. Heller, 554 U.S. 570, 631 (2008).

Rakove, supra note 149, at 110;see also Cornell, supra note 159, at 1713 (“Interpersonal violence, including gun violence, simply was not a problem in the Founding era that warranted much attention and therefore produced no legislation.”); Eric H. Monkkonen, Homicide in New York, Los Angeles and Chicago, 92 J. Crim. L. & Criminology 809, 816-17 (2002) (“Murders in both New York City and Los Angeles reflect the change: in both cities, guns accounted for about seven percent of murders before 1851 and about twenty-five percent (LA) and twenty-two percent (NYC) from 1855-1875.”).

Cornell & DeDino, supra note 164, at 512 (quoting Act of June 19, 1801, ch. XX, 1801 Mass. Acts 507; Act of Apr. 13, 1784, ch. 28, 1784 N.Y. Laws 628).

Cornell, supra note 159, at 1711 (quoting 5 St. George Tucker, Blackstone’s Commentaries: With Notes of Reference, to the Constitution and Laws, of the Federal Government of the United States; and the Commonwealth of Virginia, app. B, at 14 (1803)) (“In many parts of the United States, a man no more thinks, of going out of his house on any occasion, without his rifle or musket in his hand, than an European fine gentleman without his sword by his side.”).

See Cornell & DeDino, supra note 164, at 511 (stating that gunpowder storage laws “were not limited to the largest cities”).

Act of Apr. 13, 1782, ch. XIV, § XLII, 1781-1782 Pa. Laws 25, 41-42; see also An Act to Prevent the Storage of Gun-powder in Larger Quantities than one Hundred Pounds, Within the City of Mobile, 1848 Ala. Laws 121; Act of Sept. 12, 1783, ch. LXXVI, § XLII, 1782-1783 Pa. Laws 124, 140 (concerning the storage of gunpowder in the town of Reading).

Act of Dec. 3, 1825, ch. CCXCII, 1825 Tenn. Priv. Acts 307 (incorporating towns of Winchester and Reynoldsburgh); see also An Act Incorporating the Cities of Hartford, New Haven, New London, Norwich and Middletown, ch. 1, § 20, 1836 Conn. Pub. Acts 104-05 (“[T]he court of common council . . . shall have power to make by-laws . . . relative to prohibiting and regulating the bringing in, and conveying out, or storing of gun-powder in said cities . . . .”); An Act to Incorporate the City of Key West, ch. 58, § 8, 1838 Fla. Laws 70 (“Be it further enacted, That the common council of said city shall have power and authority to prevent and remove nuisances . . . to provide safe storage of gun-powder . . . .”); An Act to Incorporate and Establish the City of Dubuque, ch. 123, § 12, 1845 Iowa Acts 119 (giving “power to regulate by ordinance the keeping and sale of gun-powder within the city”); An Act to Incorporate Nebraska City, § 25, 1867 Neb. Laws 68 (“The city council shall regulate the keeping and sale of gun-powder within the city . . . .”); An Act to Incorporate the City of Trenton, § 24, 1837 N.J. Laws 373 (“And be it enacted, That it shall and may be lawful for the common council . . . to pass such ordinances . . . for regulating the keeping and transporting of gunpowder or other combustible or dangerous materials . . . .”).

See Cornell & DeDino, supra note 164, at 515 (citing Laws, for the Regulation and Government of the Village of Cleaveland, § 9, in Cleaveland Herald, Aug. 15, 1820, at 1).

See, e.g.,An Act to Revise and Amend the Charter of the City of Newport, § 6, 1874 Ky. Acts 327, 332 (“To prohibit the manufacture of gunpowder or other explosive, dangerous, or noxious compounds or substances in said city, and to regulate their sale and storage by license.”); An Act to Incorporate Cities of the First Class in the State of Nebraska, § 47, 1869 Neb. Laws 29, 53 (“The City Council shall have power to license all . . . venders of gun powder . . . .”); An Act to Prohibit Shooting Guns or Pistols in the Towns of Sparta, Alleghany County, and Jefferson, Ashe county, § 1, 1899 N.C. Sess. Laws 250 (“That it shall be unlawful for any person wantonly or in sport to shoot or discharge any gun or pistol in or within one hundred yards of any street in or any public road leading out of the towns of Sparta in Alleghany county and Jefferson in Ashe county for a distance of one-fourth mile from the courthouses in said towns.”); Crimes and Punishment, § 4, 1890 Okla. Sess. Laws 412, 474 (“Every person who makes or keeps gunpowder or saltpeter within any city or village, and every person who carries gunpowder through the streets thereof, in any quantity or manner such as is prohibited by law, or by any ordinance of such city or village, is guilty of a misdemeanor.”).

O’Shea, supra note 41, at 209-11 (describing contemporary “secondary” gun culture as being concentrated in these areas).

Winkler, supra note 4, at 13.

Dykstra, supra note 6, at 121.

Garry Wills, Reagan’s America: Innocents at Home 89 (1987) (“[T]hose entering the towns had to come disarmed, since it was against the law for anyone but law enforcement officials to carry a gun.”).

Id. at 380.

Winkler, supra note 4, at 165 (citing Dykstra, supra note 6).

Transcript of Oral Argument at 8, 30, District of Columbia v. Heller, 544 U.S. 570 (2008) (No. 07-290).

David T. Courtwright, The Cowboy Subculture, in Guns in America, supra note 54, at 86, 96.

Dykstra, supra note 6, at 137 (describing, for example, the nearly one-hundred arrests in 1873 alone in Ellsworth, Texas).

Spitzer, supra note 1, at 11 (footnote omitted).

Courtwright, supra note 187, at 96.

An Act to Prevent the Firing of Guns Charged with Shot or Ball in the Town of Boston, ch. X, § 2, 1746 Mass. Acts 208 (“That no Person shall . . . discharge any Gun or Pistol charged with Shot or Ball in the town of Boston (the Islands thereto belonging excepted) or in any Part of the Harbor between the Castle and said Town . . . .”); An Act for the More Effectual Preventing Accidents Which May Happen by Fire, and for Suppressing Idleness, Drunkenness, and Other Debaucheries, 1750 Pa. Laws 208 (“That if any person or persons whatsoever, within any county town, or within any other town or borough, in this province, already built and settled, or hereafter to be built and settled . . . shall fire any gun or other fire-arm, or shall make, or cause to be made, or sell or utter, or offer to expose to sale, any squibs, rockets or other fire-works, or shall cast, throw or fire any squibs, rockets or other fire-works, within any of the said towns or boroughs, without the Governor’s special license for the same, every such person or persons, so offending, shall be subject to the like penalties and forfeitures . . . .”).

An Act Prohibiting the Firing of Guns and Other Fire Arms in the City of New Haven, 1845 Conn. Pub. Acts 10 (“[E]very person who shall fire any gun or other fire-arm of any kind whatever within the limits of the city of New Haven, except for military purposes, without permission first obtained from the mayor of said city, shall be punished by fine not exceeding seven dollars, or by imprisonment in the county jail not more than thirty days.”); An Act to Prevent the Discharging of Fire-Arms Within the Towns and Villages, and Other Places Within this State, and for Other Purposes, § 1, 4 Del. Laws 329; An Act to Incorporate the Town of Baltimore, Hickman County, § 10, 1856 Ky. Acts 139 (“Any person who shall shoot off a gun or pistol, or shall run or gallop a horse creature in said town, shall be liable to a fine of not less than two nor more than four dollars . . . .”).

An Act to Prevent the Shooting or Firing of Guns or Pistols in the Village of Vineville, in the County of Bibb § 1, 1875 Ga. Laws 189 (“That from and after the passage of this Act it shall not be lawful for any person or persons to discharge, fire or shoot off any gun or guns, pistol or pistols (except military salutes, and persons discharging, firing or shooting guns or pistols on their own premises, or on the premises of another, with the permission of the owner thereof), within three hundred yards . . . of the public road running through the village of Vineville . . . .”); An Act to Prevent Parties from Shooting Within the Limits of Towns and Private Enclosures, § 1, 1873 Mont. Laws 46 (“That it shall be unlawful for any person to fire any gun, pistol or any fire-arm, of whatever description, within the limits of any town, city, or village in this territory, or within the limits of any private enclosure which shall contain a dwelling house.”); Lincoln, Neb., Gen. Ordinances art. 26, § 1 (1895) (“No person, except an officer of the law in the discharge of his duty, shall fire or discharge any gun, pistol, fowling-piece, or other fire-arm, within the corporate limits of the city of Lincoln, under penalty of a fine of ten dollars for each offense.”).

An Act to Prohibit the Discharging of Fire Arms in Certain Places Therein Named, ch. 170, § 1, 1866 Tex. Gen. Laws 210.

E.g., Crimes Against the Public Peace, § 385, 1901 Ariz. Sess. Laws 1251-52 (“If any person within any settlement, town, village or city within this territory shall carry on or about his person, saddle, or in saddlebags, any pistol, dirk, dagger, slung-shot, sword-cane, spear, brass knuckles, bowie-knife, or any other kind of knife manufactured or sold for purposes of offense or defense, he shall be punished by a fine of not less than twenty-five nor more than one hundred dollars; and, in addition thereto, shall forfeit to the county in which he is convicted the weapon or weapons so carried.”); id. § 390 (“Persons traveling may be permitted to carry arms within settlements or towns of the territory, for one-half hour after arriving in such settlements or towns, and while going out of such towns or settlements . . . .”); An Act Regulating the Use and Carrying of Deadly Weapons in Idaho Territory, § 1, 1888 Idaho Sess. Laws 23 (“[I]t is unlawful for any person, except United States officials, officials of Idaho Territory, County officials, Peace officers, Guards of any jail, and officers or employees of any Express Company on duty, to carry, exhibit, or flourish any dirk, dirk-knife, sword, sword-cane, pistol, gun or other deadly weapons, within the limits or confines of any city, town or village or in any public assembly of Idaho Territory.”); Act of Jan. 14, 1853, §1, N.M. Laws 67 (“That each and every person is prohibited from carrying short arms, such as pistols, daggers, knives, and other deadly weapons, about their persons concealed, within the settlements . . . .”) (emphasis added)); An Act to Regulate the Keeping and Bearing of Deadly Weapons, § 1, 1871 Tex. Gen. Laws 25 (forbidding, with exceptions for travelers and in one’s home or place of business, any person but a law officer from carrying a “pistol, dirk, dagger, slung-shot, sword-cane, spear, brass-knuckles, bowie-knife, or any kind of knife manufactured or sold for the purposes of offense or defense” in a city “unless he has reasonable grounds for fearing an unlawful attack on his person, and that such ground of attack shall be immediate and pressing . . . .”); 1876 Wyo. Sess. Laws 352, § 1 (forbidding any resident or sojourner from bearing, “concealed or openly, any fire arm or other deadly weapon, within the limits of any city, town or village”).

See William Hosley, Guns, Gun Culture, and the Peddling of Dreams, in Guns in America, supra note 54, at 47, 53 (“At the same time, cities across the country campaigned to transform the archaic constable-watch system into a modern uniformed police force that, increasingly and with great controversy, became armed with guns.”); cf. District of Columbia v. Heller, 554 U.S. 570, 715 (Breyer, J., dissenting) (“[T]he subsequent development of modern urban police departments, by diminishing the need to keep loaded guns nearby in case of intruders, would have moved any such right even further away from the heart of the Amendment’s more basic protective ends.”).

National Firearms Act of 1934, Pub. L. No. 73-474, 48 Stat. 1236 (codified as amended at 26 U.S.C. §§ 5801, 5849 (2006)).

See D.C. Code §§ 7-2501.01(12), 7-2502.02(a)(4), 7-2507.02 (2001), ruled unconstitutional in Heller, 554 U.S. at 635.

Utter, supra note 29, at 200-01.

Quilici v. Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983).

Goss, supra note 29, at 162-65.

See sources cited supra note 22.

Heller, 554 U.S. at 687 (Breyer, J., dissenting). Jack Rakove, himself a historian, endorses “the seemingly commonsense notion that would hold that this is the one clause of the Constitution for which conclusions drawn from consequentialist arguments should weigh most strongly.” Rakove, supra note 149, at 107.

Heller, 554 U.Sat 689 (Breyer, J., dissenting); see also Richard Schragger, The Last Progressive: Justice Breyer, Heller, and “Judicial Judgment,” 59 Syracuse L. Rev. 283, 284 (2008) (describing Breyer’s alternative as “context-specific, non-categorical, expertise-driven, and infused by a common-law sensibility”).

Heller, 554 U.S. at 698-99 (Breyer, J., dissenting).

Id. at 715.

See generally Rostron, supra note 21 (arguing that lower courts have adopted Justice Breyer’s focus on contemporary public policy interests rather than the Heller majority’s focus on historical-categorical analysis).

See generally Blocher, supra note 14 (describing the distinction in Heller as being between categoricalism and balancing).

See Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1273 (D.C. Cir. 2011) (Kavanaugh, J., dissenting) (contrasting Heller’s test “of text, history, and tradition” with intermediate and strict scrutiny).

Adam Winkler, Scrutinizing the Second Amendment, 105 Mich. L. Rev. 683, 686 (2007) (“The courts of every state to consider the question apply a deferential ‘reasonable regulation’ standard in arms rights cases.”).

Heller, 554 U.S. at 704 (Breyer, J., dissenting).

See supra notes 95-101 and accompanying text.

Cf. Kairys, supra note 124, at 196 (“The large urban areas of the nation, where unregulated handgun markets have taken such a terrible toll, should have the power to regulate handguns within their borders.”).

Fagan & Wilkinson, supra note 101, at 106-07.

David Hemenway, Sara J. Solnick & Deborah R. Azrael, Firearms and Community Feelings of Safety, 86 J. Crim. L. & Criminology 121, 124 (1995) (“For the entire population—gun owners and non-gun owners together—71% feel less safe and 19% feel more safe when others in the community acquire firearms.”). When only gun owners are asked, the numbers of respondents feeling safer and less safe are roughly equal. Id.; see also Guns, Gallup, Nov. 19-21, 2004, http://www.gallup.com/poll/1645/Guns.aspx(last visited Sept. 16, 2013) (reporting that 65% of respondents would feel “less safe” if concealed weapons were allowed “in a public place such as a restaurant or movie theater”).

Cf. Roth v. United States, 354 U.S. 476, 504 (1957) (Harlan, J., dissenting in part) (“[I]n every case where we are called upon to balance the interest in free expression against other interests, it seems to me important that we should keep in the forefront the question of whether those other interests are state or federal. Since under our constitutional scheme the two are not necessarily equivalent, the balancing process must needs often produce different results.”).

The two-stage analysis adopted by many courts of appeals, for example, combines an initial categorical inquiry with balancing-heavy intermediate scrutiny. See, e.g., United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012); Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1252-53 (D.C. Cir. 2011); Ezell v. City of Chicago, 651 F.3d 684, 701-04 (7th Cir. 2011); United States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010); United States v. Reese, 627 F.3d 792, 800-01 (10th Cir. 2010); United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010). For a thoughtful scholarly effort along these lines, see Miller, supra note 133.

Rostron, supra note 21, at 706 (quoting Chester, 628 F.3d at 688-89 (Davis, J., concurring in the judgment)).

United States v. Masciandaro, 638 F.3d 458, 470 (4th Cir. 2011).

Compare Heller II, 670 F.3d at 1259 (concluding that while longstanding forms of gun control are entitled to some presumption of validity, courts should also apply intermediate scrutiny and look for “meaningful evidence” supporting any given law), with id. at 1271 (Kavanaugh, J., dissenting) (arguing that Heller required courts to evaluate gun control “based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny”).

E.g., Benton v. Maryland, 395 U.S. 784, 795 (1969) (“Once it is decided that a particular Bill of Rights guarantee is ‘fundamental to the American scheme of justice,’ . . . the same constitutional standards apply against both the State and Federal Governments.”); see also Rosen, Tailoring, supra note 27, at 1537 (distinguishing between “selective and undifferentiated incorporation” and “selective and differentiated incorporation”).

130 S. Ct. 3020, 3047 (2010).

Id. at 3035 & n.14.

Rosen, Our Nonuniform Constitution, supra note 27, at 1133; see Rosen, Tailoring, supra note 27, at 1516.

Rosen, Our Nonuniform Constitution, supra note 27, at 1169.

Id. at 1166.

See infra notes 322 and accompanying text.

This does not necessarily mean that all regulations of obscenity are permissible—among other things, the First Amendment may still protect the right to possess obscene materials in one’s own home. Stanley v. Georgia, 394 U.S. 557 (1969). For an influential effort to draw connections between obscenity doctrine and the Second Amendment, see Miller, supra note 133 (cited in McDonald, 130 S. Ct. at 3105 (Stevens, J., dissenting)).

Miller v. California, 413 U.S. 15, 32-33 (1973) (internal citation omitted).

Hamling v. United States, 418 U.S. 87, 104 (1974).

Miller, 413 U.S. at 32; see also Hoover v. Byrd, 801 F.2d 740, 742 (5th Cir. 1986) (noting that this test “permit[s] differing levels of obscenity regulation in such diverse communities as Kerrville and Houston, Texas”).

Paul v. Davis, 424 U.S. 693, 709 (1976) (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972)); see also Christopher Serkin, Local Property Law: Adjusting the Scale of Property Protection,107 Colum. L. Rev. 883, 906 (2007) (arguing for local tailoring of Takings Clause doctrine).

Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9 (1978) (quoting Roth, 408 U.S. at 577).

545 U.S. 748 (2005).

Id. at 757.

Morse v. Frederick, 551 U.S. 393, 396-97 (2007) (reaffirming that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings”) (quoting Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986)).

Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 679-83 (1992) (finding that airports are not public fora).

Greer v. Spock, 424 U.S. 828, 838 (1976) (finding military bases to be non-public fora).

District of Columbia v. Heller, 554 U.S. 570, 626.

David J. Barron, A Localist Critique of the New Federalism, 51 Duke L.J. 377, 382 (2001).

E.g., Newt Gingrich, To Renew America 9 (1995) (“‘Closer is better’ should be the rule of thumb for our decision making; less power in Washington and more back home, our consistent theme.”); Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1201 (1992) (“[P]opulism and federalism—liberty and localism—work together.”).

Richard Briffault, Our Localism: Part I—The Structure of Local Government Law, 90 Colum. L. Rev. 1, 1 (1990).

See Quilici v. Village of Morton Grove, 695 F.2d 261, 267-68 (7th Cir. 1982) (upholding the Village of Morton Grove’s handgun ban against a Second Amendment challenge and observing that “[h]ome rule government is based on the theory that local governments are in the best position to assess the needs and desires of the community and, thus, can most wisely enact legislation addressing local concerns” (footnote omitted)); see also Tracey L. Meares & Dan M. Kahan, Black, White, and Gray: A Reply to Alschuler and Schulhofer, 1998 U. Chi. Legal F. 245, 258-59 (“[T]he residents of Chicago’s high-crime, minority neighborhoods . . . are the citizens entitled to determine whether the . . . law reasonably balances liberty and order.”);Tracey L. Meares & Dan M. Kahan, The Wages of Antiquated Procedural Thinking: A Critique of Chicago v Morales, 1998 U. Chi. Legal F. 197, 198 (defending the constitutionality of Chicago’s anti-loitering law and other forms of urban “law enforcement innovation” created with local support).

Richard C. Schragger, Cities as Constitutional Actors: The Case of Same-Sex Marriage, 21 J.L. & Pol. 147, 171 (2005) (describing a potential justification for Romer v. Evans, 517 U.S. 620 (1996),as that “the locality has in a sense ‘internalized’ the costs and benefits of the legislation—both those injured and those benefited by the restriction share the same political and territorial space” (footnote omitted)).

Rosen, Tailoring, supra note 28, at 1517 (listing Chief Justice Rehnquist and Justices Holmes, Cardozo, Jackson, Harlan, Fortas, Powell, Stewart, Stevens, Blackmun, Ginsburg, Scalia, and Thomas).

Hague v. CIO, 307 U.S. 496, 515-16 (1939).

Greer v. Spock, 424 U.S. 828, 836-38 (1976).

Morse v. Frederick, 551 U.S. 393, 404-05 (2007).

See, e.g., Lawrence B. Solum, The Interpretation-Construction Distinction, 27 Const. Comment. 95 (2010); Keith E. Whittington, Constructing a New American Constitution, 27 Const. Comment. 119 (2010).

Solum, supra note 249, at 99; see also Frisby v. Schultz, 487 U.S. 474, 481 (1988) (approving as constitutional “regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication” (quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983))).

The Federalist No. 10, at 56 (James Madison) (Jacob Ernest Cooke ed., 1961).

Heather K. Gerken, The Supreme Court, 2009 Term—Foreword: Federalism All the Way Down, 124 Harv. L. Rev. 4, 46 (2010) (footnotes omitted); see also Barron, supra note 27, at 2220 (“[T]he standard view is that the higher up one goes, the less passion and the more reason enters into interpretation.”).

See Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Geo. L.J. 309, 336-38 (1991) (detailing antebellum Southern restrictions on African-Americans’ use and ownership of guns); id. at 344-46 (describing Southern legislative attempts, as part of the “black codes,” to disarm newly freed slaves by forbidding them from carrying firearms without a license).

See Hunter v. City of Pittsburgh, 201 U.S. 161, 178-79 (1907). Nevertheless, the majority of states provide “home rule” authority to local municipalities. See Home Rule in the States,Community Envtl. Legal Def. Fund, http://www.celdf.org/home-rule-in-the-states (last visited Sept. 16, 2013).

See infra Section III.B.

Barron, supra note 27, at 2234.

Schragger, supra note 244, at 164 (emphasis added); see Rosen, Tailoring, supra note 27, at 1610-11. See generally Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J. Pol. Econ. 416 (1956) (describing model in which citizen-consumers will move to communities whose bundle of government services they prefer).

Robert D. Cooter, The Strategic Constitution 323 (2000).

J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va. L. Rev. 253, 320 (2009).

See Heather K. Gerken, Exit, Voice, and Disloyalty, 62 Duke L.J. 1349, 1351 (2013) (arguing that the ability of minority polities to act contrary to national will has “unique implications for two of the most important projects undergirding much of constitutional theory: integrating a diverse polity and encouraging democratic debate”).

Winkler, supra note 4, at 18.

Nathaniel Sheppard, Jr., Illinois Town Faces Lawsuit After Limiting Pistol Use, N.Y. Times, July 4, 1981, at A6.

Regulating Guns in America, supra note 44, at 40 n.19 (noting that at least thirteen Illinois communities banned handguns, “making Illinois unique among the states in the number of local ordinances banning handguns”).

Goss, supra note 82, at 704 (“Interestingly, the gun rights forces appeared to take the political potential of the Chicago-area developments far more seriously than did the gun control side.”).

Tushnet, supra note 123, at 103.

Id. at 103-10 (describing the debate); Philip J. Cook & Jens Ludwig, Pragmatic Gun Policy, in Evaluating Gun Policy, supra note 87, at 1, 27-28; see also Steven Raphael & Jens Ludwig, Prison Sentence Enhancements: The Case of Project Exile, in Evaluating Gun Policy, supra note 87, at 251 (finding little evidence of Project Exile’s success).

Tushnet, supra note 123, at 106 (describing these programs).

Cook & Ludwig, supra note 37, at 1336.

Rosenthal, supra note 93, at 5.

Braga et al., supra note 59, at 345; see also Hinson, supra note 85, at 873-77 (describing the Gun Project, specialized gun court, and other initiatives in Boston).

Cook & Ludwig, supra note 37, at 1336-37.

Even before Heller was decided, Washington, D.C., Chicago, and approximately a dozen other Illinois communities were apparently among the only jurisdictions in the country with handgun bans. See Regulating Guns in America, supra note 44, at 38-41.

Cornell & DeDino, supra note 164, at 516 (“[L]ocal regulation was quite common in pre-Civil War America.”); see also Badaracco, supra note 127, at 762 (“State and local governments have traditionally enjoyed a great deal of latitude in passing gun control laws . . . .”).

Because these laws are so recent, they do not undermine the historical-categorical case for localism described in Section II.A.

See Utter, supra note 29, at 200.

Stephen P. Teret et al., Gun Deaths and Home Rule: A Case for Local Regulation of a Local Public Health Problem, 9 Am. J. Preventative Med. 44, 45 (1993) (referencing the NRA’s past support for local control (citing Inst. for Legislative Action, Nat’l Rifle Ass’n. of Am., NRA State Legislative Issue Brief (1986)).

Goss, supra note 82, at 706; Vernick & Hepburn, supra note 87, at 363.

Vernick & Hepburn, supra note 87, at 349.

Goss, supra note 82, at 706-07.

This was precisely the argument that Illinois made in its amicus brief supporting Chicago in McDonald. Brief for the States of Illinois, Maryland, and New Jersey as Amici Curiae in Support of Respondents at 21, McDonald v. City of Chicago, 130 S. Ct. 3020 (No. 08-1521), 2010 WL 59029, at *21-22; see also Joseph Blocher, Popular Constitutionalism and the State Attorneys General, 122 Harv. L. Rev. F. 108 (2011) (discussing the role of state attorneys general in gun control litigation).

See sources cited supra note 87.

Regulating Guns in America, supra note 44, at 15; see also David B. Kopel, Limited Preemption of Firearms Laws: A Good Step for Civil Rights (Mar. 11, 2003), Dave Kopel, http://www.davekopel.com/2a/IB/Limited-Preemption.htm (noting that only half of the states with preemption laws “totally forbid local gun laws”).

Cf. O’Shea, supra note 41, at 212 n.52 (“Primary gun culture states tend to have broader firearms preemption laws, allowing little leeway for added municipal restrictions, while secondary jurisdictions tend to have very limited preemption (Massachusetts, New York) or none (Maryland)—although California, with strong preemption, is an exception to the pattern.”).

See Robert VerBruggen, Self-Defense vs. Municipal Gun Bans, Reason, June 2005, at 40, 44 (“Local control has nothing to do with denying what I consider a basic right under the state and federal constitutions . . . . A village can no more deny self-defense than they can pass an ordinance that you can’t publish articles in their territory.” (quoting Illinois State Senator Edward Petker));supra note 272.

Glenn Harlan Reynolds, Letter to the Editor, Reason, June 1996, at 10 (“If the Supreme Court were to interpret the Second Amendment [to protect an individual right to keep and bear arms], gun owners would have less reason to fear creeping confiscation . . . .”).

Tushnet, supra note 123, at 129; see also Andrew Jay McClurg, The Rhetoric of Gun Control, 42 Am. U. L. Rev. 53, 84-89 (1992) (criticizing the use of slippery slope arguments in the gun control debate); Eugene Volokh, The Mechanisms of the Slippery Slope, 116 Harv. L. Rev. 1026, 1033-34 (2003) (describing slippery slope arguments as they relate to gun registration and confiscation).

Reynolds, supra note 285.

McDonald v. City of Chicago, 130 S. Ct. 3020, 3046 (2010) (noting that “[s]tate and local experimentation with reasonable firearms regulations will continue under the Second Amendment” (quoting Brief of The States of Texas et al. as Amici Curiae in Support of Petitioners at 23, McDonald, 130 S. Ct. 3020 (No. 08-1521), 2009 WL 4378909, at *23)).

But see O’Shea, supra note 41, at 219 (“Dilution is a real risk . . . .”).

See Frank R. Baumgartner & Bryan D. Jones, Agendas and Instability in American Politics 31-35 (2d ed. 1993) (noting that issue advocates often seek the most accessible level of government to push their agenda); Goss, supra note 29, at 145-75. (describing policy “incrementalism”).

See, e.g., Thomas C. Castellano & Edmund F. McGarrell, The Politics of Law and Order: Case Study Evidence for a Conflict Model of the Criminal Law Formation Process, 28 J. Res. Crime & Delinq. 304, 311-12 (1991)(describing the stark division between New York City and upstate New York).

James B. Jacobs, What Can We Expect of Gun Control?, 156 U. Pa. L. Rev. PENNumbra 189, 190 (2007).

See Teret et al., supra note 276, at 44 (arguing that state gun laws preempting municipal ones “represent a step backward for public health”).

Firearms Preemption Laws, Nat’l Rifle Ass’n Inst. for Legis. Action, (Dec. 16, 2006), http://www.nraila.org/news-issues/fact-sheets/2006/firearms-preemption-laws (“Where no uniform state [gun] laws are in place, the result can be a complex patchwork of restrictions that change from one local jurisdiction to the next.”).

Cf. Schragger, supra note 27, at 1892 (“Taking local governments seriously does not entail blinding oneself to their weaknesses. It simply requires giving some attention to the scale of government action and to the fact that local governments and state and federal governments are differently situated with respect to their citizens.”).

See, e.g., District of Columbia v. Heller, 554 U.S. 570, 704 (2008) (Breyer, J., dissenting) (“[L]egislators, not judges, have primary responsibility for drawing policy conclusions from empirical fact.”); Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 195 (1997) (holding that courts must “accord substantial deference to the predictive judgments of Congress”) (quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 665 (1994)); Caitlin E. Borgmann, Rethinking Judicial Deference to Legislative Fact-Finding, 84 Ind. L.J. 1, 2 (2009) (“It is traditionally assumed that the role of ascertaining and evaluating the facts underlying a statute belongs to the legislatures.”); Neal Devins, Congressional Factfinding and the Scope of Judicial Review: A Preliminary Analysis, 50 Duke L.J. 1169, 1175 (2001)(“The Court is unlikely to depart from the traditionalist view that the separation of powers places the finding of social facts squarely within the realm of the lawmaking power.”).

Cf. District of Columbia v. Heller, 554 U.S. 570, 626-27 (2008) (“[N]othing 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.”).

Barron, supra note 240, at 378-79.

James B. Jacobs, Can Gun Control Work? 224 (2002).

Braga et al., supra note 59, at 331.

Colin Loftin et al., Effects of Restrictive Licensing of Handguns on Homicide and Suicide in the District of Columbia, 325 New Eng. J. Med. 1615 (1991); see also Bogus,supra note 44, at 457 (“The D.C. law . . . had a significant and immediate benefit.”); Rosenthal, supra note 93, at 5 (noting apparent success of concealable weapon regulation in New York City).

Jacqueline Cohen & Jens Ludwig, Policing Crime Guns, in Evaluating Gun Policy, supra note 87, at 217, 220 (“In our judgment the Pittsburgh program provides at least suggestive evidence that targeted patrols against illegally carried guns may reduce gun crime.”).

See, e.g., Colin R. Goodall et al., Computing and Using Rural Versus Urban Measures in Statistical Applications, 552 Am. Statistician 101 (1998).

Vernick & Hepburn, supra note 87, at 349.

About Metropolitan and Micropolitan Statistical Areas, U.S. Census Bureau, http:// http://www.census.gov/population/metro/about (last updated Feb. 26, 2013).

Another way around the definitional problem would simply be to count as suburbs only those areas that are self-governing.

Kathryn Ticknor, Gun Ownership and Opinion in the United States,Kathryn Ticknor: Linguistic Insights and Analytics (Apr. 2, 2012), https://blogs.commons.georgetown .edu/ket37/files/Gun-Ownership-and-Opinion-in-the-United-States.pdf (noting that “[t]hese findings are consistent with trends since the 1970s”).

Another recent poll similarly found that 42% of suburban residents own guns, compared to 60% in rural areas and 30% in cities. Silver, supra note 59. Though they reflect a suburban-rural disparity as well, these numbers are somewhat higher than those in the General Social Survey. See Tavernise & Gebeloff, supra note 57.

Kleck, supra note 78, at 401; see also Smith, supra note 75, at 303 (“As one moves from the countryside, through the small towns, and on to the metropolitan centers, opposition to gun control steadily falls.”).

Ticknor, supra note 307.

Shane Goldmacher, Poll Finds That Obama’s Base Overlaps with Gun-Control Coalition, Nat’l J., Jan. 14, 2013, http://mobile.nationaljournal.com/daily/poll-finds-that-obama -s-base-overlaps-with-gun-control-coalition-20130114 (reporting results of United Technologies/National Journal Congressional Connection Poll).

Cf. Gerken, supra note 252 (describing “federalism all the way down”).

District of Columbia v. Heller, 554 U.S. 570, 626-27 & n.26 (2008) (suggesting that regulation in such places is “presumptively lawful”).

James Barron, Nation Reels After Gunman Massacres 20 Children at School in Connecticut, N.Y. Times, Dec. 14, 2012, http://www.nytimes.com/2012/12/15/nyregion/shooting-reported-at -connecticut-elementary-school.html.

NRA Calls for Armed Police in Every School, Fox Nation, Dec. 21, 2012, http://nation.foxnews.com/nra/2012/21/nra-calls-armed-police-ever-school; see also Mariano Castillo, NRA Clear on Gun Debate Stance: Arm Schools, CNN, Dec. 21, 2012, http:// http://www.cnn.com/2012/12/21/US/Connecticut-school-shooting.

Elise Foley, Michael Bloomberg: Failing to Enact Gun Control ‘Will Be a Stain Upon Our Nation,’ Huffington Post, Dec. 17, 2012, http://www.huffingtonpost.com/2012/12/17 /michael-bloomberg-gun-control_n_2316855.html. Speaking on NBC’s Meet the Press,David Brooks explicitly noted that “I admire Mayor Bloomberg enormously . . . but it’s counterproductive to have him as the spokesperson for the gun law movement. There has to be more respect and more people, frankly, from rural and red America who are participants in this.” Noah Rothman, David Brooks Slams ‘Counterproductive’ Mayor Bloomberg in ‘Urban vs. Rural’ Gun Debate, Mediaite, Dec. 16, 2012, http://www.mediaite.com/tv/david-brooks -slams-counterproductive-mayor-bloomberg-in-urban-vs-rural-gun-debate.

See, e.g., Scott Wilson & Philip Rucker, Obama Calls on Congress to Ban Assault Weapons,High-Capacity Magazines, Wash. Post, Dec. 19, 2012, http://articles.washingtonpost.com/2012-12-19/politics/35929574_1_assault-weapons -president-obama-high-capacity-magazines; George Zornick, How Walmart Helped Make the Newtown Shooter’s AR-15 the Most Popular Assault Weapon in America, Nation, Jan. 7, 2013, http://www.thenation.com/article/171808/how-walmart-helped-make-newtown -shooters-ar-15-most-popular-assault-weapon-america (noting that the AR-15 was used in all three sets of murders).

See Regulating Guns in America, supra note 44, at 19.

Sahil Kapur, Assault Weapons Ban Sidelined in the Senate, Talking Points Memo (Mar. 19, 2013, 11:19 AM), http://livewire.talkingpointsmemo.com/entry/assault-weapons-ban -sidelined-in-senate; see Dan Friedman, Gun Control Efforts Set Back as Senate Democrats Abandon Background Check Measure, N.Y. Daily News, Aug. 1, 2013, http://www.nydailynews.com/news/politics/senate-democrats-abandon-background-check -measure-article-1.1415414.

District of Columbia v. Heller, 554 U.S. 570, 625 (2008); see Volokh, supra note 32, at 1478-83 (describing and criticizing some of these tests for the scope of Second Amendment coverage).

Justice Scalia suggested at oral argument that machine guns meet the definition. See Rostron, supra note 21, at 711 (citing Transcript of Oral Argument at 22,District of Columbia v. Heller, 544 U.S. 570 (2008) (No. 07-290)). Yet there are nearly half a million of them registered with the federal government. Bureau of Alcohol, Tobacco, Firearms & Explosives, Firearms Commerce in the United States: Annual Statistical Update 2012, U.S. Dep’t Justice 14, http://www.atf.gov/files/publications/firearms/050412 -firearms-commerce-in-the-us-annual-statistical-update-2012.pdf.

See, e.g., Hamling v. United States, 418 U.S. 87, 104-05 (1974).

Having a more accurate and detailed census of guns would also make it easier to determine whether America’s gun cultures are divided not only geographically but with regard to typesof guns. Perhaps members of gun culture not only own guns at a higher rate, but also disproportionately favor certain kinds of weapons—those designed for hunting, for example, or self-defense. Or maybe instead the types of high-powered, self-loading rifles favored by some hunters are significantly different from the kinds of guns targeted by “assault weapons” bans, which would suggest that perhaps the cultural divide is not as broad as it seems.

See Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972) (“Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions defined by existing rules or understandings that stem from an independent source such as state law. . . .”).

See Regulating Guns in America, supra note 44.

Id. at 259. Omaha, Nebraska, was the exception.

Id.

See Volokh, supra note 32, at 1523 (“For over 150 years, the right to bear arms has generally been seen as limited in its scope to exclude concealed carry.”); see also Aymette v. State, 21 Tenn. (2 Hum.) 154 (1840) (upholding Tennessee’s ban on concealed weapons).

Zimring & Hawkins, supra note 127, at 131 (“State and local attempts to regulate the carrying of concealed weapons date from the early nineteenth century, with substantial legislative activity occurring during the period from 1880 through 1915.”); see, e.g., An Act to Prevent the Carrying of Concealed Deadly Weapons in the Cities and Towns of this Territory, § 1, 1862 Colo. Sess. Laws 56 (“If any person or persons shall, within any city, town, or village in this Territory . . . carry concealed upon his or her person any pistol . . . or other deadly weapon, shall, on conviction . . . be fined . . . .”); An Act to Establish the Municipality of Jacksonville Provide for its Government and Prescribe Its Jurisdiction and Powers, ch. 3775, § 4, 1887 Fla. Laws 160, 164-65 (“The Mayor and City Council shall within the limitations of this act have power by ordinance . . . to regulate and license the sale of firearms and suppress the carrying of concealed weapons . . . .”); An Act to Prevent the Carrying of Concealed Deadly Weapons in the Cities and Towns of this Territory, § 1, 1864 Mont. Laws 355 (“If any person shall within any city, town, or village in this Territory . . . carry concealed upon his or her person any pistol . . . or other deadly weapon . . . shall, on conviction . . . be fined . . . .”).

See supra note 198.

See, e.g.,An Act to Add an Additional Section to Article Two of the Code of Public Local Laws, entitled “Anne Arundel County,” sub-title “Annapolis,” to Prevent the Carrying of Concealed Weapons in Said City, ch. 42, § 246, 1872 Md. Laws 56, 57 (“It shall not be lawful for any person to carry concealed, in Annapolis . . . any pistol, dirk-knife, bowie-knife, sling-shot, billy, razor, brass, iron or other metal knuckles, or any other deadly weapon . . . .”); An Act to Revise the Charter of the City of Buffalo, ch. 105 § 209, 1891 N.Y. Laws 176, 177 (“No person other than members of the police force, regularly elected constables, the sheriff of Erie county, and his duly appointed deputies, shall, in the city, carry concealed upon or about his person, any pistol or revolver, or other dangerous weapon or weapons, without having first obtained a permit, as hereinbefore provided . . . .”); An Act to Revise, Consolidate and Amend the Charter of the City of Oshkosh, the Act Incorporating the City, and the Several Acts Amendatory Thereof, ch. 183, ch. VI, § 3, pt. 56, 1883 Wis. Sess. Laws 687, 713 (allowing the common council “[t]o regulate or prohibit the carrying or wearing by any person under his clothes, or concealed about his person, of any pistol or colt, or slung shot, or cross knuckles, or knuckles of lead, brass or other metal, or bowie knife, dirk knife, or dirk or dagger, or any other dangerous or deadly weapon; and to provide for the confiscation or sale of such weapon”); An Act to Prevent the Carrying of Fire Arms and Other Deadly Weapons, ch. 52, § 1, 1876 Wyo. Sess. Laws 352 (“[H]ereafter it shall be unlawful for any resident of any city, town or village, or for any one not a resident of any city, town or village, in said Territory, but a sojourner therein, to bear upon his person, concealed or openly, any fire arm or other deadly weapon, within the limits of any city, town or village.”).

Cornell, supra note 164, at 142.

Robertson v. Baldwin, 165 U.S. 275, 281-82 (1897) (citations omitted).

District of Columbia v. Heller, 554 U.S. 570, 626 (2008) (“[T]he majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.”).

See, e.g., Peterson v. Martinez, 707 F.3d 1197, 1201 (10th Cir. 2013) (“In light of our nation’s extensive practice of restricting citizens’ freedom to carry firearms in a concealed manner, we hold that this activity does not fall within the scope of the Second Amendment’s protections.”); see also David B. Kopel, The Right to Arms in the Living Constitution, 2010 Cardozo L. Rev. De Novo 99, 126 (“In the nineteenth century, concealed carry was often considered outside the scope of the right to bear arms. Today, it is the most common way in which people exercise their right to bear arms.”).

702 F.3d 933 (7th Cir. 2012).

Id. at 940.

Id. at 942 (describing the burden necessary to justify the “uniquely sweeping ban”).

Peterson, 707 F.3d at 1202 (noting that the Denver Revised Municipal Code largely prohibits unlicensed public carrying at any time).

See Ezell v. City of Chicago, 651 F.3d 684, 705 (7th Cir. 2011) (“The City points to a number of founding-era, antebellum, and Reconstruction state and local laws that limited discharge of firearms in urban environments.”); Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. Rev. 1343, 1361 (2009) (“In some American jurisdictions today, for example, openly carrying a firearm might plausibly be thought to violate the ancient common law prohibition against ‘terrifying the good people of the land’ by going about with dangerous and unusual weapons.” (quoting William Blackstone, 4 Commentaries *148)).

Lund, supra note 340, at 1361-62 (“If courts were to conclude that open carry violates this common law prohibition (and thus is not within the preexisting right protected by the Second Amendment), after Heller has decreed that bans on concealed carry are per se valid, the constitutional right to bear arms would effectively cease to exist.”).

Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012) (upholding a “proper cause” requirement for public carrying of handguns).