Local Immigration Non-enforcement and Local Gun Deregulation

In the past year, localities have been causing quite a stir by declaring themselves “sanctuaries.” But unlike the sanctuaries that grabbed headlines in the 1980’s, and then again in the post-9/11 crackdown on foreigners, or the ones that continue to draw the ire of President Trump, this recent trend isn’t about immigration enforcement. Instead, cities and counties have co-opted the label to advocate for local firearms deregulation. This so-called “Second Amendment Sanctuaries” movement intentionally conjures the immigrant-protective rhetoric of the immigrant sanctuary movement to describe a range of local policies, from merely symbolic expressions of disagreement with state gun laws, to more robust versions that direct local officials not to enforce state gun laws. Whether this rhetorical co-optation can deliver political or legal victory, however, is highly contested.

In a timely, forthcoming law review article, Professor Shawn Fields provides an in-depth look at this emerging phenomenon. In Second Amendment Sanctuaries, he makes the case for a limited subfederal anti-commandeering principle that might provide leeway for local resistance against state-wide regulation under particular circumstances.  As Professor Fields argues, the sanctuary label links local decisions to opt-out of enforcing the policies of superior levels of governments, across these two regulatory fields.

The stylistic and symbolic reasons for conjuring the “sanctuary” description are understandable. Measured solely by result, one might believe that declaring sanctuary possesses talismanic power. Punishing and eliminating immigration sanctuaries continues to be the nearly singular obsession of President Donald Trump in his domestic immigration enforcement agenda. Yet, his substantial efforts to quash immigrant sanctuaries have thus far been remarkably ineffective. Most have been defeated in courts, and the overwhelming majority of local non-cooperation policies continue to exist and even expand. As such, reclaiming the sanctuary label to advance local firearms deregulation captures the intuitive appeal of the sauce-for-the-goose-is-sauce-for-the-gander fairness principle. Indeed, by adopting the sanctuary label, supporters of local firearms deregulation see themselves as not just having chosen a winning strategy, but also as having cleverly re-appropriated an opponent’s gambit, thereby scoring a double-victory.

As an initial matter, it’s worth examining why these two subjects of regulation – guns and immigrants – seem to be framed as at odds with each other in the minds of Second Amendment sanctuary proponents. As I have argued here and here, as a constitutional matter, immigrants and guns are inherently linked only when the Second Amendment is read narrowly to protect citizens of the United States bearing arms in defense of a sovereign. When the Second Amendment instead is read to protect a core right of self-defense, it is much less coherent to think of gun deregulation and immigration enforcement as intrinsically opposed. Nevertheless, the intuitive sense that gun deregulation and hyper immigration enforcement are coupled reflects our polarized politics. In our era of “partisan federalism”, the restrictionist versus integrationist positions on immigration, and the regulatory versus deregulatory positions on firearms both track traditional blue/red divides. As such, it is likely true that blue cities and states prefer non-cooperation policies on immigration along with regulatory policies for firearms; conversely, red cities and states are likely to prefer deregulatory policies for firearms along with cooperative policies on immigration enforcement.

But getting beyond red/blue divisions which could describe a myriad of regulatory subjects beyond immigrants and guns, the sanctuary label itself does nothing to legally immunize local decisions to opt out of a superior government’s policies. Indeed, a deeper investigation of the term “sanctuary” mostly reveals how malleable, and therefore how meaningless, the term is for legal purposes. The label originated from the practice of churches sheltering noncitizens in their houses of worship, with church leaders specifically conjuring a biblical obligation to provide physical and spiritual refuge. Starting from those origins, the term is now used as a convenient, morally-inflected, shorthand to describe a wide range of governmental and non-governmental policies that have the effect of welcoming or protecting noncitizens. As a result, many immigration scholars have noted not just the imprecision of the term, but also its potential to confuse, or cause backlash against immigrant populations. Thus, many immigration scholars and advocates refer to sanctuary laws as “non-cooperation laws,” focusing on the legal importance of the decision to decline aid to federal immigration authorities.

In other words, in evaluating local decisions to oppose or opt-out of regulation by superior governments, nothing depends on the label, and much depends on the particularities of the local resistance, and the nature of the relationship between the locality and the superior government. Professor Fields acknowledges these limits, conceding that the legal “headwinds” against Second Amendment sanctuaries are stronger than in the immigration sanctuary context. In the remainder of this post, I elaborate on some of those differences, and make a preliminary claim that – apart from the rhetorical link – little connects firearms sanctuaries to immigrant ones as a legal matter.

The primary difference between immigrant and firearms sanctuaries is the particularities of the superior level of government. In the immigration context, sanctuary city ordinances were created almost universally to resist federal efforts, whereas the second amendment sanctuary movement is predicated on resistance to state regulation. This changes the nature of the constitutional claim under the Supreme Court’s current anti-commandeering jurisprudence. Without their own constitutional status, immigrant-friendly cities have been able to adopt the legal standing of states when resisting federal conscription into immigration enforcement. Second Amendment sanctuaries, which resist state regulation, cannot invoke constitutional federalism principles, and instead must rely on municipal empowerment claims. Grounded in “home rule” and “charter city” arguments under state constitutions and government codes, these claims are the familiar stomping grounds of localism experts, distinct from the federalism and individual rights realm where immigration and second amendment advocates usually tread.

Given that distinction, the appropriate comparison for Second Amendment sanctuaries are not the hundreds of immigrant sanctuaries which directly respond to federal policy, but the more recent and limited trend of localities resisting state anti-sanctuary policies. This development is typified by Texas SB 4, enacted in 2017 to prevent municipalities within the state from implementing immigration non-cooperation policies. SB 4 requires local officials to provide information to, and otherwise aid, federal immigration authorities. In City of El Cenizo v. Texas, the Fifth Circuit mostly upheld SB 4, and, in dicta, rejected the city’s subfederal anti-commandeering challenge to the state law. At the opposite end of the spectrum, a California state court recently rejected the city of Huntington Beach’s home rule claim that would have permitted it to cooperate with federal immigration enforcement, in violation of the California Values Act SB 54 (also known as the “state sanctuary” law).

But even within that more appropriate state-to-municipality comparison, the analogy between state gun regulations and state anti-sanctuary policies on immigration breaks down upon closer examination. Here, Professor Fields and I appear to part ways. Focusing on local policies that decline to honor federal immigration detainers, Fields finds common ground with local firearms deregulation, arguing that such “passive noncooperation policies echo the passive non-enforcement declarations in second amendment sanctuaries.” Both types of local challenges, according to Fields, “claim constitutional duty to resist superior government action as violations of individual protections in the Bill of Rights.”

A county sheriff’s refusal to have her officers communicate with ICE, however, differs from local police declining to enforce state firearms laws in at least two legally significant ways. First, as Professor Rick Su’s contribution to this symposium notes, at times localities are framed as representatives of their residents, and at times understood solely as creatures of the state. Without resolving this dual nature of localities, suffice to note that in general, firearms sanctuaries leverage the city or county as the locus of community representation; in comparison, immigration sanctuaries focus on city and county units as an extension of the state (at least for litigation purposes). Second, the immigration context provides a unique entry point into questions of both federalism and localism because of the relationship between federal, state, and local levels of government in immigration enforcement. Accordingly, state anti-sanctuary laws in immigration find no ready comparison in other regulatory fields.

To the first point, Second Amendment sanctuary laws at their core reflect a local interpretation of the meaning of the right to bear arms at odds with the state’s interpretation. As such, these are claims that could be raised by individuals within a locality who understand the state gun law as violative of their constitutional right. In contrast, a locality’s decision to decline federal immigration requests relies on a structural claim that can only be vindicated by a sheriff’s office, police department, or city agency, and not by an individual resident. Noncitizens do not have a separate, constitutional right to be free from federal immigration enforcement. Instead, the municipal empowerment claim in the immigrant context inures indirectly to the noncitizen’s benefit. In the firearms context, a county-wide opt-out from a state firearm regulation leverages the county’s political process to collectively assert a view on firearms regulation, but is not based on the status of the entity itself in a meaningful way. (Here, I am leaving aside the possibility that the municipality might assert a unique Second Amendment right on its own behalf as a rights-bearing entity, as Professors David Fagundes and Darrell Miller argue in their submission to this colloquium and in more detail in their forthcoming paper, The City’s Second Amendment, Cornell Law Review (forthcoming 2020)).

Put another way, the Second Amendment sanctuary represents an aggregated, local majoritarian view on the meaning of the Second Amendment, but nothing turns on the city or county qua city or county. In the immigration context, state anti-sanctuary laws assign and direct the duties of local officials, forcing them to prioritize immigration enforcement efforts over competing law enforcement concerns. As my co-authors and I have argued, these state laws regulate the city or county as an entity, “target[ing] how local governments are organized, structured, and managed.”

Second, immigration enforcement depends on an odd relationship between federal, state, and local actors. Because states (and localities) are forbidden from maintaining their own deportation laws, in the state-local immigration context, the relevant policy at issue is not the state’s, but rather the federal government’s. Thus, the state is only a middle-man, purporting to use its authority over localities to conscript local officers into federal service, allowing an end-run around the constitution’s anti-commandeering principle as understood in cases like Printz v. United States and Murphy v. NCAA. The Second Amendment context provides no parallel. There, the state law on firearm regulation exists irrespective of federal policy. The state law articulates the statewide standard for enforcement in seemingly the same way as state drug laws, minimum wage provisions, or fracking bans might.

Certainly, a robust localist framework might argue for greater municipal freedom in all these areas. Still, nothing separates the Second Amendment context or immunizes firearms from the general principles governing state-local relations. One potential response, as Professor Fields argues, is on the basis that a “superior body of law provides support for the resistance” articulated by Second Amendment sanctuaries. His argument has the attraction of connecting the gun context, with its appeal to the Second Amendment, to the immigration context, with its appeal to constitutional federalism principles and the fourth amendment. Even so, it remains unclear why the existence of a superior body of law requires privileging the local interpretation of that superior body of law over a superior government’s interpretation of that same superior body of law. Indeed, even those who have expressed a normative preference for local gun regulations, and have argued for incorporation of local interests in assessing the constitutionality of state gun regulations have stopped short of suggesting that localities can exempt themselves from state regulation (see Joseph Blocher, Firearms Localism, 123 Yale L. J. 82 (2013)).

To be clear, I believe there is a strong case to be made for exempting local immigrant sanctuary laws against state anti-sanctuary regulation, based on municipal autonomy principles. And, as my co-authors and I have recognized, a localist claim for local sanctuary laws against state anti-sanctuary law might also end up bolstering the legal case for local anti-sanctuary cities against sanctuary states. But, our cautious argument for a subfederal anti-commandeering doctrine with regards to immigration policy is limited by crucial factors inherent to the nature of coerced immigration enforcement by states. As such, the argument for local immigration non-enforcement cannot easily be adopted to defend local firearms deregulation.

[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.]