Second Amendment Sanctuaries, Preemption, and Lessons from the Immigration Context

  • Date:
  • April 26, 2023

Over the past several decades, two trends in gun regulation at the state and local level have come into conflict with one another.  First, beginning in the 1980s, states increasingly adopted broad preemption laws that limit the authority of local and municipal governments to regulate firearms.  As Rachel Simon describes, “[f]orty-five states have adopted express preemption statutes curtailing or entirely prohibiting local gun regulation, and several jurisdictions now threaten localities with penalties for violating such restrictions.”  As an example of just how broad these laws can be, the Arizona Supreme Court ruled in 2017 that a local ordinance providing for the destruction of unclaimed or forfeited firearms held by the Tucson Police Department was preempted because the legislature had occupied the entire field of firearms regulation.  And preemption laws increasingly include punitive provisions targeting local officials who attempt to regulate on preempted topics.  In January, the Florida Supreme Court upheld civil penalties in the state’s firearms preemption law against challenges asserting that those provisions violated legislative and governmental function immunity.  The decision in Fried v. Florida held that, by enacting the preemption statute, the state legislature had abrogated any common-law immunity which might otherwise shield local officials.

Second, some municipalities in recent years have passed “Second Amendment sanctuary” laws.  These laws, which can be traced to immigration “sanctuary city” resolutions that prevent or restrict information-sharing with federal immigration enforcement agencies, attempt in a variety of ways to limit the impact of state and federal gun regulations within a local jurisdiction.  For example, a city, town, or county might declare its support for gun rights, limit funding for enforcement of federal and state gun laws, or even declare such laws null and void.  (For more background on Second Amendment sanctuary ordinances, see the Center’s video scholarship highlights with Shawn Fields and Sheila Simon.)  At the state level, so-called protection acts seek to accomplish a similar objective by muting the effect of certain federal gun regulations statewide.

It’s not difficult to see how “sanctuary city” declarations might run afoul of state preemption laws.  While the original intent of preemption was to prevent local governments from enacting stricter gun regulations than those in existence at the state level, the laws themselves generally don’t differentiate between strengthening and loosening gun laws.  Rather, they simply reserve for the state government almost all power to regulate on the subject.  Therefore, a city or county that declares itself a Second Amendment sanctuary and purports to limit the effect of statewide gun regulations is, presumably, preempted from doing so.  The Oregon Court of Appeals recently confronted this precise question in Columbia County v. Rosenblum.  On February 15, an appellate panel struck down a county ordinance stating that:

All local, state and federal acts, laws, rules or regulations, originating from jurisdictions outside of Columbia County, which restrict or affect an individual person’s general right to keep and bear arms, including firearms, firearm accessories or ammunition shall be treated as if they are null, void and of no effect in Columbia County, Oregon.

The sanctuary ordinance further barred county officials from enforcing such state and federal laws and regulations.  The court first found the controversy justiciable, in part because Oregon law provides for a “validation proceeding” with statutory standing to resolve conflicts between interested parties over whether an ordinance is lawful in the abstract (before it is actually applied).  On the merits, the panel found the Columbia ordinance preempted by Oregon’s state firearms preemption law and struck it down.  The decision observed that, “[i]f allowed to stand, [the Columbia County sanctuary ordinance] would, effectively, create a ‘patchwork quilt’ of firearms laws in Oregon, where firearms regulations that applied in some counties would not apply in Columbia County, which is what [the state preemption statute] was enacted to avoid.”  In a forceful concurrence, Judge Egan wrote that the Columbia ordinance “is repugnant to the separation of powers under the United States Constitution and the Oregon Constitution, and is repugnant to the framers’ constitutional design.”  He also wrote that, in his view, the ordinance was motivated by “racist and antisemitic dogma.”

Similar legal issues arise when a state attempts to enact a statute nullifying federal gun laws and regulations.  Missouri passed such a law—the “Second Amendment Preservation Act,” or SAPA—in 2021.  Missouri’s SAPA provided in part that:

All federal acts, laws, executive orders, administrative orders, rules, and regulations, regardless of whether they were enacted before or after the provisions of sections 1.410 to 1.485, that infringe on the people’s right to keep and bear arms as guaranteed by the Second Amendment to the Constitution of the United States and Article I, Section 23 of the Constitution of Missouri shall be invalid to this state, shall not be recognized by this state, shall be specifically rejected by this state, and shall not be enforced by this state.

The federal government sued Missouri in federal court seeking to invalidate the law, and on March 6 a district judge granted the United States’ motion for summary judgment and struck down SAPA.  After determining that the United States had standing to challenge the ordinance based on “injury in fact relative to SAPA’s interference with the function of federal firearms regulations and public safety objectives,” the court moved on to consider whether SAPA violated the Supremacy Clause of the U.S. Constitution.  The judge found that “SAPA is an unconstitutional ‘interposition’ against federal law and is designed to be just that.”  Therefore, “to the extent [SAPA] purports to negate the constitutionality or substance of [federal firearms statutes], these regulatory schemes are presumptively lawful, and it is an impermissible nullification attempt that violates the Supremacy Clause.”  The opinion also found that SAPA’s purported nullification of federal firearms taxation requirements, federal background check mandates on gun dealers, and federal criminal bans was preempted by federal law because the statute imposed directly-conflicting requirements and it would be impossible for Missourians to comply with both the SAPA and federal gun laws.  The judge additionally held certain SAPA provisions “independently invalid as discriminatory against federal authority in violation of the doctrine of intergovernmental immunity,” and determined that any potentially constitutional portions of SAPA could not be severed and therefore the statute was invalid in its entirety. 

Rosenblum and United States v. Missouri stand for the unremarkable proposition that a city or county cannot lawfully nullify the effect of statewide and federal laws within its boundaries, and that a state similarly cannot nullify the effect of federal laws within its jurisdiction.  This principle has been well-settled for almost two centuries, yet other state legislatures continue to consider laws similar to Missouri’s now-defunct SAPA.  If states or localities do enact similar laws in the future, they are likely to be quickly challenged and struck down in court. 

What is worth more attention, I think, are Second Amendment sanctuary laws that don’t purport to nullify any gun regulations but rather govern items such as cooperation with federal authorities, how local government funding is allocated, and so on (or simply make symbolic declarations of support for Second Amendment rights).  These versions are much closer in substance to the immigration sanctuary-city declarations that became popular during the Trump administration—those ordinances were designed to “limit cooperation with federal efforts to locate and remove unauthorized immigrants” from the jurisdiction, through such measures as “prohibiting local law enforcement from asking people about their immigration status, reporting suspected unauthorized immigrants to federal immigration authorities, or detaining immigrants charged with or convicted of crimes past their release date so that federal immigration authorities can pick them up.”  Non-cooperation is a much more tenable position than nullification, and the Trump administration was mostly unsuccessful in attempting to pressure these jurisdictions into withdrawing their sanctuary-city declarations by withholding federal funds.  As Ilya Somin describes, “[w]ith rare exceptions, courts [] ruled against the Administration on all the major federalism issues at stake in the sanctuary cases.”  Somin notes that the immigration “sanctuary cases also feature[d] an unusual alignment of political forces: liberal–Democratic state and local governments . . . challeng[ed] a Republican Administration by relying on federalism doctrines traditionally associated with the political right.”  The Second Amendment sanctuary movement represents, perhaps, a return to the status quo of federalism-based argumentation (and, in some cases, a super-charged version of federalism that crosses over into nullification) being invoked primarily by the political right. 

The decision in Rosenblum further reveals how the rhetoric of the constitutional sheriffs’ movement—which is perhaps most often associated with issues such as election denial and COVID mask mandates—has spilled over into firearms regulation.  Especially given the complex and heavily historical test for Second Amendment challenges articulated in Bruen, the idea that local sheriffs possess unreviewable authority to interpret the Constitution and independently determine which gun regulations infringe the Second Amendment is indefensible—that task lies with the judiciary.  But sheriff primacy is also fundamentally incompatible with state preemption of all local gun regulation (which is the law of the land in 44 states).  States considering whether to repeal their preemption statutes—as Colorado did in 2021—will have to balance the benefits of permitting local flexibility, including the ability of towns and counties who wish to relax regulatory measures to do so, with the possibility that some localities will seek to carve out areas where state gun laws are nullified entirely.  I believe the benefits of paring back statewide preemption are still high, but greater local autonomy should be accompanied by residual state power to preempt extreme actions at the local level—either attempts at nullification, or regulatory measures that clearly infringe constitutional rights (such as a blanket ban on handgun possession within the home).