State Firearm Policy

Although this is a course on federal policy, the judicial doctrine of federal preemption is relevant. The doctrine is based upon the basic constitutional principle that in those areas where the Founding Fathers gave Congress the constitutional authority to regulate, Congress has the right to insist on one uniform set of national regulations.

Once Congress exercises this right by enacting a comprehensive set of federal regulations, the states are constitutionally prohibited from adopting any regulations that are inconsistent with the federal regulations. Essentially, when Congress exercises its constitutional authority “to regulate commerce…among the several states,” it may decide to “occupy the field” and thereby preempt states from regulating inconsistently. Well recognized examples of federal preemption include the federal regulation of nuclear power by the Nuclear Regulatory Commission and the federal regulation of the sale of corporate securities by the Securities and Exchange Commission.

Federal preemption is elective

Federal preemption is elective. Congress can decide to occupy the field or not, as it sees fit. In many cases Congress has decided not to restrict a state’s right to regulate. For example, the federal government has, for the most part, left to the states the regulation of insurance. As a result, each state has a department or bureau of insurance or similar regulatory agency, which has primary regulatory authority over the activities of the insurance industry within that state.

Congress can elect to regulate

Finally, Congress can elect to regulate certain industries or activities, but also make it clear that by doing so, it is not intending to exercise its constitutional right to preempt the states also from regulating. In essence, Congress may decline to adopt an “either/or” approach and develop federal regulations but allow states to develop their own regulations.


This has been the strategy adopted by Congress for the regulation of firearms. Congress has neither “occupied the field” exclusively nor completely abdicated its authority to the states. Rather, it has elected to pursue a strategy whereby states are free to regulate firearms simultaneously with the federal government. Under this approach, there are two independent regulatory schemes—one at the federal level and one at the state level.