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Second Amendment Sanctuaries

By on May 15, 2020 Categories: , ,

The term “sanctuary” has come to represent a broad sympathy for undocumented immigrants and a correlative antipathy for federal immigration enforcement. But the term now appears in reference to another hotly contested political topic: gun rights. So-called “Second Amendment Sanctuaries,” local jurisdictions passing resolutions “in opposition to gun safety legislation they deem to be an unconstitutional restriction of their rights,” exploded onto the scene in 2019. Much like immigrant sanctuaries, Second Amendment Sanctuaries claim refuge from superior government enactments, reopening debates about the proper balance of power between state and local governments, the ability of superior governments to compel compliance from sanctuary jurisdictions, and the substantive contours of the Second Amendment itself.

This latest iteration of local resistance to outside lawmaking looks slightly different depending on the locality, but most resolutions claim an absolute right to protect local citizens from any statewide gun control law by refusing to enforce those laws in their jurisdiction. The regulations most commonly targeted by sanctuary activists include two old proposals – universal background checks and so-called “assault weapons” bans – and a third, “extreme risk protection orders,” that have swept through statehouses with the same speed as sanctuary resolutions. These so-called “red flag” laws authorize courts to temporarily prohibit the possession of a firearm for anyone adjudicated to be a danger to themselves or others.

While the term “sanctuary” has no legal meaning, its use in both the immigration and firearms contexts provides a useful comparison through which to analyze the purpose and viability of these new “gun sanctuaries.” Both immigrant sanctuaries and gun sanctuaries seek to resist at the local level the enforcement of laws passed by a superior governmental entity, be it the federal or state government. And both primarily (though not exclusively) do so passively, by simply refusing to expend money enforcing these laws rather than affirmatively passing contrary legislation or otherwise erecting a substitute regulatory regime.

But there are important limits to the analogy. For one, the legal justification for immigrant sanctuaries rests on more solid footing because these jurisdictions decline to enforce federal law per their right under United States federalism structures and the anticommandeering principles of the Tenth Amendment. Second Amendment Sanctuaries, by contrast, represent attempts by localities to resist the enforcement of state law where no corollary “subfederalism” principle exists. As “creatures of state law,” most local municipalities act merely as subdivisions of states whose legislation can be preempted by a contrary state enactment.

In this sense, Second Amendment Sanctuary resolutions may act more like local ordinances such as citywide minimum wage hikes or plastic bag bans subject to invalidation by state preemption. Forty-three states currently have statewide preemption statutes broadly preventing any local firearms regulation, though a majority of these statutes do little to impose an affirmative regulatory scheme. This “deregulatory preemption” has proven a useful tool for gun rights activists, who successfully invalidated urban gun control measures in some of the nation’s largest metropolitan areas. These preemption statutes present the greatest headwind against Second Amendment Sanctuary viability.

But this analogy has limits as well. Unlike proactive local regulations like fracking bans or antidiscrimination ordinances, Second Amendment Sanctuaries do not affirmatively erect a regulatory regime at odds with state law. Instead, they express a reactive resistance to state power, communicating a novel sort of “subfederal anticommandering” claim that state authorities must enforce their own laws.

Second Amendment Sanctuaries possess another characteristic absent in both the immigrant sanctuary and local regulation context: the interpretation of a constitutional right. Second Amendment Sanctuaries proclaim a duty to resist what they see as unconstitutional violations of an individual’s right to keep and bear arms. Whether these resolutions claim immunity from all gun regulations or make a more nuanced constitutional argument for their (mostly rural) localities remains unclear. But if the latter, a strong “constitutional localism” case can be made to support this approach.

Joseph Blocher and others have advanced compelling arguments that the scope of Second Amendment rights should be locally tailored, a view buttressed by this nation’s long history of regulating firearms at the local level. But whether recent statewide gun control proposals run afoul of federal constitutional guarantees in any locality remains an open question, particularly given the relatively unsettled state of Second Amendment doctrine. Moreover, even if these regulations present unconstitutional infringements, the proposition that local executive actors like sheriffs and prosecutors have the authority to make this determination is a controversial one at best.

Given the foregoing, early commentators proclaimed that these sanctuaries “will never hold up in court.” States can and do exercise broad preemption powers over localities. No local-level Tenth Amendment shield protects localities from commandeering by their state governments. And to the extent these sanctuaries raise valid constitutional questions, such questions must be resolved by courts rather than municipal “constitutional officers.”

I want to challenge those intuitions by suggesting a limited path forward for localities seeking to resist certain state actions. These proposals, while generally applicable to other similarly situated sanctuary contexts, apply with particular salience to firearms regulation.

First, a limited space for constitutional home rule should exist when either a federal constitutional interest is implicated or the state’s own constitutional doctrine authorizes autonomy over matters historically of “local concern.” In the first instance, the United States Supreme Court has provided at least limited local insulation from state preemption when the local ordinance promotes a federal constitutional right at risk by the state enactment. Facially, Second Amendment Sanctuaries make the same claim, though the substantive contours of those constitutional arguments remain fuzzy. In the second instance, the nation’s strong history of firearms localism and the normative preference for adopting flexible regulations in localities of various population densities may provide support for constitutional localism claims.

Second, while state preemption may invalidate affirmative local regulations, passive local ordinances merely resisting enforcement of superior state law raises different questions. A limited form of “subfederal anticommandeering” analogous to federal anticommandeering may be appropriate, at least when a genuine constitutional claim exists, and the local ordinance places no affirmative roadblocks in the way of state officers enforcing state law. Some Second Amendment Sanctuaries would likely fall outside this limitation, but many would not. Unlike state-federal relations, however, the state’s historical and practical reliance on local subdivisions for funding, resources, and logistical support raise concerns about the workability of such “intrastate federalism.”

Third, the recent departmentalism revival provides at least the theoretical framework for local executive and legislative officials to share constitutional interpretation responsibilities, at least for the sorts of unsettled legal issues presented in many Second Amendment cases. This sort of “first impression departmentalism” allows for multi-branch interpretation when the settling and social coordination functions of judicial supremacy do not yet exist. And even under a judicial supremacy model, local sanctuary advocates can advance their cause through constitutional impact litigation, asserting either structural rights to local autonomy in firearms regulations or freedom from substantively unconstitutional state regulations.

To be sure, the “headwinds” against Second Amendment sanctuary viability remain strong. And legal legitimacy aside, any defense of the current sanctuary movement must wrestle with its “unsavory roots,” including the political activism of far-right and white nationalist groups in Virginia and elsewhere. But dismissing Second Amendment Sanctuaries as nothing more than right-wing expressions of discontent risks losing an opportunity to explore the broader localism and intrastate federalism issues they present, issues with resonance for gun rights and gun control localists alike.

Shawn Fields is an Assistant Professor of Law at Campbell University School of Law. His article Second Amendment Sanctuaries is forthcoming in the Northwestern University Law Review.

[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.]