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The Two Sides of Sanctuary

By on May 12, 2020 Categories: , ,

A new sanctuary movement is sweeping the country.  No, I am not talking about immigration sanctuaries, which have more and less been proliferating since the 1980s.  Rather, I am talking about the emergence of Second Amendment sanctuaries, focused on protecting the right to keep and bear arms, and which have been adopted by more than 400 localities in just the past two years.  Through a series of resolutions, Second Amendment sanctuaries are expressing their support for gun rights.  They are attacking existing and proposed gun control legislation.  And more importantly, these sanctuaries are declaring that no governmental resource or personnel will be used to enforce laws that “unconstitutionally” or “unnecessarily” infringe upon the Second Amendment rights of their residents to keep and bear arms.

At first glance, it would appear that no two movements could be more dissimilar.  Sure, immigration and Second Amendment sanctuaries share the same name, and both involve the refusal of local communities to enforce certain laws.  But aside from that, differences are aplenty.  Immigration and Second Amendment sanctuaries deal with distinct and unrelated issues.  Their positions fall on opposite sides of the partisan divide.  One targets federal policies while the other is primarily focused on state laws.  Even the legal arguments justifying their existence differ.  Immigration sanctuaries defend their position by invoking the constitutional prohibition against federal “commandeering” of state and local officials—a structural claim rooted in the federalism relationship between the federal government and the states.  Meanwhile Second Amendment sanctuaries ground their legal authority in the constitutional rights of their residents, which they purport to defend from governmental encroachment.  Given these differences, one might believe that the comparisons now being drawn between the two seem more the result of rhetorical framing and strategic co-option than any similarities in substance or law.  After all, it was only recently that Second Amendment advocates chose to adopt the sanctuary label—a label that immigration sanctuaries have long rejected for themselves.

But perhaps what connects immigration and Second Amendment sanctuaries is not just political, but also how they relate to our understanding of local governments.  At the most basic level, both movements are led primarily by localities: cities in the case of immigration sanctuaries, and counties in the case of Second Amendment sanctuaries.  Even more interesting, however, is how the legal differences that one might use to distinguish the two sanctuaries actually reflect a fundamental tension in how local governments are defined in American law.  In other words, immigration and Second Amendment sanctuaries may simply be two sides of the same local government coin.  And what their comparison exposes is how the doctrinal uncertainties that have long plagued the legal identity of American local government may be precisely why they are so often at the center of controversial disputes.

To see this, we must briefly delve into local government law and two of its central debates: Do local governments primarily serve the state or their residents?  And from which do they derive their legal authority?  The prevailing view is that local governments are creatures of the state, from which they draw all their powers and to which they serve as “convenient administrative subdivisions.”  Yet in practice and in law, this view has long faced off against the competing idea that local governments also draw their power and authority directly from their residents, who they serve as political or corporate associations.  The influence of these competing theories has ebbed and flowed throughout the historical development of local government law in the United States.  And the tension between the two remains largely unresolved today.

From this perspective, what is most striking about the legal standing of immigration and Second Amendment sanctuaries is how well they map onto these two competing theories.  Simply stated: immigration sanctuaries have embraced their role as state creatures, while Second Amendment sanctuaries cast themselves as associations of their residents.  This particular alignment makes sense given the targets and purpose of these two movements.  It is through the anti-commandeering doctrine that immigration sanctuaries are able to resist federal efforts to compel their participation in immigration enforcement.  But because the anti-commandeering doctrine is primarily about protecting the sovereignty of states, it is only by assuming the legal identity of states that this doctrine can be invoked.  Conversely, Second Amendment sanctuaries arose primarily as a response to state law.  As a result, the local government identity that they have embraced is not that of the state, but rather that of their residents.  It is their constitutional rights that Second Amendment sanctuaries are upholding.  And it is these individual rights from which Second Amendment sanctuaries derive the authority to repudiate their state’s laws.

The local legal identities that immigration and Second Amendment sanctuaries are now embracing also seem to be a reflection of how the laws governing immigration and gun rights have changed.  Litigation over immigration laws had historically pitted the plenary power of the federal government against the constitutional rights of individuals, whether that of immigrants or citizens.  But as avenues for individual rights claims narrowed, advocates sought alternative ways to challenge federal law.  And as federal enforcement policies became more dependent on state and local participation, structural claims based on the federal-state-local relationship offered a promising alternative and gave way to immigration sanctuaries.  Interestingly, the same about-face can also be seen in recent developments over gun rights.  The Second Amendment was initially interpreted as a structural right—a right possessed by states against federal intrusion and connected to the ability of states to maintain a “well-regulated militia.” It was only recently that the Supreme Court recognized the Second Amendment as an individual right.  And it was only because of this new interpretation that Second Amendment sanctuaries can argue on behalf of their residents in opposing regulations by their state.

But as useful as these competing identities are in justifying immigration and Second Amendment sanctuaries, there might also be problems with how they are being used.  First, it is not clear that they fit all that well with the types of local governments that are involved.  The dual identity of local government, and especially the theory that they retain some associational authority derived directly from their residents, is usually associated with “municipal corporations” like cities.  Counties, on the other hand, have traditionally been understood to be at most “quasi-corporations” created solely to serve the state’s interests, implement its policies, and enforce its laws.  Even if cities can wield the legal rights of their residents in challenging the state—which some courts have denied when cities have tried to do so in lawsuits against the state— can counties do the same?  The growing partisan divide along urban-rural lines may explain why immigration sanctuaries tend to be cities and Second Amendment sanctuaries counties.  But the fact that different types of local governments governs these different areas may complicate the local legal identities that they wish to assume.

Second, the strategic orientation of the two sanctuary movements obscures the underlying substantive interests at stake.  After all, the policy rationales for immigration sanctuaries are centered on the interests and rights of their residents.  Similarly, Second Amendment sanctuaries are not just concerned about individual rights, but also the power of the state over local officials.  Perhaps what is missing is a way for local governments to raise these arguments directly.  Might cities be allowed to raise immigration claims on behalf of their residents as private associations do on behalf of their membership?  Should counties be given more legal autonomy such that structural arguments against state interference is possible without having to frame it around the rights of their residents.  It is noteworthy that Second Amendment sanctuaries are thus far proliferating largely in states like Virginia and North Carolina that do not grant constitutional “home rule” to their local governments.  Should Second Amendment sanctuaries also be understood as a movement for more local autonomy and the restructuring of the state-local relationship?

In short, immigration and Second Amendment sanctuaries may not be all that different after all.  This is not to say that the legal identity that they have assumed is similar, but rather that the manner in which they differ simply reflects the inherent tension in how local governments are defined in American law.  Given the shifting nature of politics in our federal system, this tension explains why local governments are often at the forefront of controversial debates.  The bigger question this comparison leaves us is whether and how this tension should be resolved.

[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.]