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Second Amendment Sanctuaries and the Difference Between Home Rule, Local Recalcitrance, and Interposition

By on May 5, 2020 Categories: , ,

On the day I began writing this post, the Governor of Virginia signed into law a number of state-wide gun control measures passed by a newly Democratic General Assembly. For decades, that body had been dominated by Republicans, who had resisted strengthening gun regulations despite recent mass shootings and the shocking images of white supremacists and armed militias toting assault rifles in Charlottesville during the August 2017 “Unite the Right” rally. In 2019, Democrats ran on a platform of “commonsense” gun laws and voters expected them to deliver, which they did, at least in part. Some proposals—like an assault weapons ban—did not clear the General Assembly.

What is notable, though not necessarily surprising, is that as the newly constituted General Assembly began considering gun control measures, pro-gun-rights groups ran a concerted opposition campaign grounded in a robust localism that they had never embraced under the previous state administration. Suddenly Second Amendment sanctuaries appeared across the state, with local city councils and boards of supervisors adopting declarations that affirmed their support for Second Amendment rights, and that further called for local resistance to state mandates. There was a certain irony in these calls for state forbearance. As many Democratic legislators pointed out, under a Republican General Assembly, the state had preempted almost all local gun regulations, including the ability for cities to regulate guns in public places and during demonstrations—a feature of state law preemption that led to the dramatic and frightening scenes in Charlottesville. Localism only became attractive once gun-rights advocates had lost power in Richmond.

The Second Amendment sanctuaries movement borrows from the language and rhetoric of the immigrants’ rights movement. Insofar as the enforcement of state and federal law often depends on the cooperation of local officials, the movement also deploys some of the same strategies: passive non-cooperation, indirect resistance, and rhetorical disobedience. It has been and should continue to be noted that local governments have a constitutional basis for resisting federal commands in the immigration context. Federal officials may not commandeer local officials to enforce federal immigration law. By contrast, local officials do not have a similar constitutional basis for resisting state commands in the gun control context, even if there is some contested space in the interstices of state constitutional law for forms of local resistance, as Shawn Fields has described.

One also should be careful to delineate appropriate distinctions between (1) local control or home rule, (2) local recalcitrance, and (3) interposition and nullification.

As to the first, I am a proponent of city power and have played a role in drafting the new National League of Cities’ “Principles of Home Rule for the Twenty-First Century.” Those principles are intended to reset the balance between state and local power, which has tilted dangerously toward state centralization. Progressive Era advocates had thought home rule reforms would protect cities from avaricious state legislatures, but in the twenty-first century, we’ve seen states aggressively undermining local prerogatives across many areas of policymaking. The NLC principles reflect a commitment to a robust local democracy in which cities have more room to decide for themselves how to pursue the ends of government. This form of home rule might point toward “firearms localism” as a way out of the political morass that is gun regulation in the United States. I leave it to others to pursue that avenue. But I am certainly willing to put up with some local policies that I dislike so long as there is the option to have my preferred policies adopted somewhere else. In Virginia, for example, many cities would have adopted more aggressive gun control regulations if the previous Republican-dominated General Assembly had allowed it. Home rule can provide space for disparate regulation, though it is of limited use unless there is a relatively stable political settlement among competing factions to respect constitutional limits. To be fair, such a political equilibrium is often difficult to achieve or sustain.

Local recalcitrance or local work arounds are different than home rule. The councilpersons, supervisors, and sheriffs who have embraced Second Amendment sanctuaries are not advocating for home rule. They think that Second Amendment rights are invariable and inviolable; they want to carry their assault weapons in Richmond just as they do in Wise. This is a problem with rights claims; they are absolute and do not provide a lot of room for a local option.

Of course, there is power in the local community and in local government specifically. That power can be exercised in the form of discretionary policing or other forms of local under-enforcement. It is not a drawback of a vertically fragmented government system that the center often needs the cooperation of the periphery to get its work done. That cooperation can be more or less forthcoming, as is evidenced by the battles being fought every day between the Trump administration and states and localities across the country.

These more recent conflicts represent more than “uncooperative federalism,” however. What has emerged instead is something that could be called “punitive federalism”—a regime in which the periphery disagrees with or attempts to work around the center and the center seeks to punish those who do so, not just rein them in. State preemptive laws that punish local officials by removing them from office or by withdrawing state funds are similarly a form of punitive or vindictive preemption. In the nineteenth century, states would pass “ripper bills” that simply replaced or eliminated local officials; Progressive Era home rule reforms were a response to that form of state abuse.

“Punitive federalism” is a problem, for while some conflict between levels of government might be salutary, too much conflict can be pathological, especially when accompanied by the kind of constitutional “hard-ball” we are seeing throughout the U.S. political system. And here I want to note an important difference between disagreement or passive non-cooperation and interposition and nullification. Especially in Virginia, we should be wary of language that smacks of Massive Resistance. Gun rights advocates oftentimes seem to be standing in the school-house door. We should not paint that form of opposition with the brush of legitimacy.

And that makes me very nervous about taking seriously the claims of organizations like the Virginia Citizens Defense League or the Gun Owners of America—or the sheriffs and city councils that are parroting their claims. It further makes me wary of domesticating those claims by treating them seriously within a legal and institutional framework that is supposed to resolve disputes through law.

Those groups are not law abiding. They seem to believe, for instance, that citizens and local officials have a duty to disobey unconstitutional laws and that a duly enacted law of the state that they conclude contravenes the Second Amendment is no law at all. They reject the so-called “Doctrine of Judicial Supremacy,” which they claim is “contrary to the most basic principles which underlay our form of government, is anti-Biblical, and is profoundly abusive of the pre-existing and inalienable rights of the people of Virginia.” Indeed, these groups explicitly assert that the doctrine of interposition is alive and well in Virginia. Invoking “[t]he Doctrine of the Lesser Magistrate,” they have asserted that “[w]hen a higher government overreaches it is the duty of the lesser governments to interpose themselves.” Quoting Madison, they argue that “[t]he act of the lesser or lower authority is deemed an act of ‘interposition’ . . . “.

These kinds of claims reveal the increasingly frightening confluence of gun rights advocacy, Christian nationalism, and—to be frank—white supremacy. An advocacy group that does not recognize or does not acknowledge the rhetorical links between interposition, the Civil War, and Massive Resistance is playing a dangerous game, one that barely conceals its discredited provenance. One should be very careful about crediting those kinds of claims or treating them as simply another form of healthy or disputatious localism. It is not.

Living in Charlottesville, I have seen the danger of lending credence to faux constitutional claims by treating violent actors as if they were sincere in their respect for law. This is not civil disobedience. These local sheriffs are armed and clothed with public authority. Localism or federalism might be an institutional solution to intractable policy differences—a solution to the conflict between urban and rural, for instance. But a different and more forceful response not grounded in abstract invocations of devolution is required when gun rights are cloaked in the rhetoric of God’s law and are accompanied by marching militias and sheriffs who explicitly declaim any adherence to the rule of law.

[Ed. note: This post is part of series of guest posts from scholars at the Center’s recent colloquium on Localism, Popular Constitutionalism, Preemption, and Firearms.]