PUBLISHED:September 29, 2021

Miller discusses gun preemption laws: "No reason why the values of a county of 1,000 should be the same values imposed on a city of over 100,000"

City: State's gun laws fueling our violence

By Jonathan Bullington; Darcy Costello; Joe Sonka

(This article was originally published in the Louisville Courier-Journal on Sept. 28, 2021. It requires a subscription to view on the website.)

Less than five hours after a drive-by shooting killed 16-year-old Tyree Smith and wounded two other teens as they waited at a school bus stop, Louisville Mayor Greg Fischer stood at a podium inside Metro Hall to address a weary city.

Stunned and frustrated residents demanded an end to the bloodshed. Fischer promised action, saying the city would do everything in its power to prevent more tragedies. Police would find out who pulled the trigger. A team would be deployed to help heal the trauma suffered by neighborhood residents and by students and teachers at Eastern High School, where Smith was a junior. City agencies and partners would bolster community-based prevention programs designed to address the root causes of gun violence.

But one crucial piece of the solution remains out of reach, the mayor said.

The triple shooting, he said, was yet another stark reminder of the widespread availability of guns fueling the city's violence to historic heights.

"It's not an easy challenge," Fischer said, "especially given the limitations placed on us by state laws that ban common-sense gun measures."

For decades, Kentucky law has prohibited Louisville and the commonwealth's other municipalities from passing firearms ordinances that might disrupt the many pipelines funneling deadly weapons into the wrong hands. More than 40 states have "preemptive laws" that take away local control, giving most, if not all, of the power to regulate guns to state legislatures.

Favored by groups such as the National Rifle Association, those laws guard against what supporters claim would otherwise be a confusing patchwork of local gun rules and restrictions that law-abiding gun owners could unwittingly violate just by traveling through a state.

Opponents say preemptive laws stop local leaders from enacting gun ordinances to meet the specific needs of their communities. Those laws, they argue, ultimately can lead to fewer children and adults killed or wounded in shootings and less damage done to neighborhoods besieged by gun violence.

"There's no necessary reason why the values of a county of 1,000 people should be the same values about guns that are imposed on a city of over 100,000 people," said Darrell Miller, a law professor and co-director of the Center for Firearms Law at Duke Law School.

Hours after Wednesday's shooting, state Rep. Josie Raymond, who represents the 31st District, said on Twitter that she requested a bill draft that would allow Louisville to regulate guns.

"Louisville legislators have tried this before," the Democrat said in her tweet. "This time we must succeed, for our kids."

But with a Republican supermajority in Frankfort, most observers think the bill has virtually no chance. Rep. Jerry Miller, R-Louisville, laughed off Raymond's proposal, saying "I'm sure she's doing that for her reelection campaign."

Where passing a law becomes a crime

Cities historically have sought local control over firearms. Writing in The Washington Post, Joseph Blocher, a law professor and co-director of Duke's Center for Firearms Law, noted that towns of Wild West lore —Dodge City, Kansas, and Tombstone, Arizona —once outlawed people from carrying guns in city limits. In 1979, Blocher wrote, only seven states had preemptive laws on the books that dealt with firearms. Today, nearly all of them either limit or ban local gun laws.

That's not a "divine accident," said Daniel Webster, a member of the Council on Criminal Justice Violent Crime Working Group and the director of the Center for Gun Violence Prevention and Policy at Johns Hopkins University. "That was an intentional strategy of the gun lobby because they recognize that they had more power in state legislatures than in city councils," he said. "Gun violence tends to be higher in metropolitan, urban areas and, therefore, the demand for stronger regulations in those areas. "The gun lobby wanted to cut off that avenue for stronger gun laws."

The strategy appears to have worked.

In Florida, for example, officials in Coral Gables once tried to ban "military-style rifles" shortly after the 2018 mass shooting that killed 17 people and injured 17 others at Marjory Stoneman Douglas High School in nearby Parkland.

A month later, they abandoned their plan because that state's preemptive law punishes local leaders with fines, potential ouster from office and liability for legal fees if sued for trying to pass a local gun ordinance.

Kentucky's law goes further. If Louisville's Metro Council decided to adopt a gun ordinance tomorrow, the city would likely have to pay attorney and expert fees and legal costs in a lawsuit. Council members and the mayor also could be found guilty of official misconduct —a misdemeanor —punishable by up to 12 months in jail (for a first-degree offense) and a fine of up to $500. Kentucky is the only state that makes violating a preemptive firearms law a criminal offense, according to the Giffords Law Center to Prevent Gun Violence.

'Guns are everywhere'

Tyree Smith's death continues an alarming increasing in gun violence in Louisville —one that mirrors spikes in other cities across the country. Last year, 160 of Louisville's record-high 173 homicide victims were killed by gunfire. Another 587 people were wounded in shootings. This year likely will be worse. So far, shootings have killed 140 people and wounded another 460 and counting. Just as troubling is the toll on Louisville's children this year: 20 killed by gunfire and another 82 wounded.

Fischer's administration has allocated close to $20 million in the next fiscal year's budget for public safety efforts. Still, the state's preemptive law stops Louisville from addressing the flood of guns on the streets. "Guns are everywhere," Fischer said during Wednesday's press conference. "And it's a huge source of this problem, not just today but each and every day."

In a three-part investigative series, "Awash in Guns," The Courier Journal identified the main weapons pipelines fueling crime and rising gun violence: Nearly 10,000 guns were reported stolen in Louisville from 2014 through 2019, an average of four every day. More than 1,000 have been recovered at crime scenes across the city. Those numbers could be much higher, since Kentucky doesn't require gun owners to report stolen weapons.

Kentucky's roughly 1,600 licensed gun dealers reported more than 3,200 guns lost or stolen in those same six years. Those dealers are targets for both thefts and straw purchases, while unregulated private sales flourish on social media and other websites —funneling guns into the hands of teens or people who wouldn't pass a background check at a gun store.

Yet instead of disrupting these pipelines, lawmakers have put more guns on the streets through legislation requiring the auctioning of guns police confiscate. More than two-dozen guns sold at state auctions were later tied to criminal cases in Louisville.

Other states have tried to address the illegal flow of weapons by enacting laws that require gun owners to report lost or stolen guns to police, penalize gun owners who do not responsibly store their weapons, require background checks for private sales of guns, or require licensed gun dealers to have security plans in place.

None of those laws exist in Kentucky. A sweeping bill that, among other things, calls for expanded background checks, limits on assault weapons and mandatory reporting of lost or stolen firearms has been repeatedly filed during legislative sessions and has never moved out of committee. Instead, state lawmakers have further stripped gun controls to advance their broad interpretation of the Second Amendment, including more recently eliminating the need for a permit to carry a concealed weapon.

Opponents of increased gun regulations say the way to deter gun thefts and gun violence is tighter enforcement of the state's existing gun laws —more arrests, more convictions and longer prison sentences. And yet, statewide convictions for a dozen different gun-related crimes (such as theft of a firearm or being a felon in possession of a weapon) climbed by 64% —1,221 to 2,005 —between 2014 and 2019, a Courier Journal review of circuit court records previously found. In that same time frame, reported gun thefts in Louisville rose 14% (1,356 to 1,548), police records show, while homicides rose 72% (39 to 67).

"You can do the best policing you want," Karl Stankovic, former head of the Bureau of Alcohol, Tobacco, Firearms and Explosives' Louisville field division chief, said previously. "I'm not sure you're going to see a significant reduction in gun thefts by arresting your way out of it."

‘It’s totally handcuffing’

Local gun laws have been shown to make a dent in the illegal weapons markets where they've been passed, Webster said. But they won't by themselves end gun violence. "We can't fool ourselves," he said. "This is a big problem. A lot of forces are at play here. A local law relevant to storage and theft reporting is only going to take you so far."

Still, he added, "if I were mayor, I would want to do that in a heartbeat because I do think it would reduce gun theft and other harmful things that could happen when guns are not secured." Louisville's elected leaders have tried in the past to break free from the state's control over gun laws. A resolution filed in 2018 by then-Councilman Brandon Coan, D-8th, would have asked the Kentucky General Assembly to allow local governments to regulate firearms in two ways: requiring guns and ammunition be sold using "responsible business practices" and requiring gun owners to report lost or stolen firearms. It also called for the state to fund firearm violence intervention programs. It was tabled and died in committee.

Coan told The Courier Journal his resolution was an attempt to put "a toe in the door" for local control over gun violence, and he was "extremely frustrated and upset" it went nowhere. But he doesn't think the city should give up. "The kind of reforms we were talking about would help people immensely," Coan said.

  • Beyond laws mandating safe storage of guns or reporting of lost or stolen firearms, some council members cited other potential ordinances:
  • Extreme risk protection orders to temporarily keep guns out of the hands of people considered a danger to themselves or others;
  • A restriction in bringing firearms to a disciplinary hearing with a local government employer;
  • The power to destroy weapons police seize;
  • Background checks or proof of identification before the sale of guns, including at gun shows;
  • A local registration of gun owners; and
  • Zoning regulations laying out where gun shops can be located.

Some who'd like to see changes, like Councilman Pat Mulvihill, D-10th, make local control arguments —"tools needed in one area may not be needed in another."

"They don't have to agree with the method or the law, but not having the ability to discuss it or even do anything seems —it's totally handcuffing," Mulvihill said. "I'm not saying gun regulation will resolve it all. ... But it's one additional tool that can make a difference. And saving one life would make it worth it."

But others, including Councilman Anthony Piagentini, R-19th, say the city should "clean up our own house before we tell people how to run their house." Still, Piagentini said he would be open to one area of regulation: holding gun owners accountable for unsecured weapons that are stolen and subsequently used in crimes.

‘We have to try’

State lawmakers who support the preemptive law also leave the door open to other firearms regulations. Louisville state Rep. Jason Nemes, one of the only Republicans in the legislature to sponsor gun control bills in recent years, said he doubts there will be any appetite in the General Assembly to allow local gun laws or "broadbased gun laws affecting law-abiding citizens."

Though he believes the ease of access to illegal and stolen guns, especially by minors, is a problem that must be addressed, Nemes said the focus "should be on enforcing existing laws that are already on the books." Nemes added the proper focus should include "attracting more police officers and addressing the systemic issues in our community and in our families."

State Rep. Kevin Bratcher, R-Louisville, said he would not support legislation requiring gun owners to secure their firearms but is "not sure why anybody would be against" a law requiring gun owners to report when their firearms are stolen.

Bratcher said he would be interested in hearing more about a theft-reporting bill, as well as one letting Louisville set its own gun regulations, "as long as they respect the Second Amendment." But he believes such legislation stands little chance of passing.

"I don't think that you're ever going to get that because Kentucky is such a pro-gun state," Bratcher said. "I consider myself very pro-gun, but I don't think we have to go nuts about it."

Still, Bratcher said, "putting more laws on the book is not going to help anything. You need to look at what's going on and why these kids and young adults and whoever want to commit so many crimes and murders."

For his part, Gov. Andy Beshear largely avoided answering a question Thursday about his support for letting Louisville set its own gun ordinances. His spokespeople did not respond to follow-up questions.

"I think lots of people have lots of the answer," Beshear said. "But I hope everybody can continue to talk, because most of the time finding the best answers include taking a piece of what everybody has to offer."

Like Raymond, Senate Minority Leader Morgan McGarvey, D-Louisville, believes Louisville should be able to set its own gun policies, tweeting Thursday: "If the Kentucky General Assembly believes local control is good enough to determine how to keep our kids safe in school with masks, then surely they support allowing local control on firearms."

McGarvey said he expects a bill to be filed next year that would mandate reporting of lost or stolen guns and one that would give judges the power to temporarily restrict firearms access for someone in imminent danger of harming themselves or others. Both face tough odds, he said.

"A big obstacle we face next year is that it's a Republican-controlled chamber in an election year, McGarvey said. "But we have to try."

For Navada and Krista Gwynn, the city and state need to do more than try. In December 2019, they lost their 19-year-old son, Christian, to a drive-by shooting. Three months ago, their daughter Victoria, also 19, survived a shooting in Ballard Park in which her close friend

DaJuan Coward, 17, was killed in a hail of bullets. "The city allowed this (gun violence) to really get out of hand on their part," Navada Gwynn said. "No one wants to take the blame."

Krista Gwynn agreed with her husband that elected officials are accusing each other of failing to act to prevent more shootings.

"Frankfort is pointing at Louisville saying it's a Louisville problem. Louisville is pointing at Frankfort saying it's a Frankfort problem," she said. "It's all our fault. Everyone's at fault."