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“The People”, Citizenship, and Firearms

The relationship between citizenship and gun rights continues to vex federal courts.[1] In turn, the answer to whether gun rights are citizen-only rights implicates other core constitutional protections. Accordingly, courts and commentators must critically re-examine the alarming judicial trend towards excluding noncitizens from the ambit of the Second Amendment.

The Court’s 2008 District of Columbia v. Heller opinion ignited this controversy when it – by fiat and without explanation – equated the “the people” protected by the second amendment with “law-abiding citizens”, “Americans,” and “members of the political community”.[2] Heller’s simultaneous expansion of the scope of the substantive right, while narrowing the class to whom it inures, has generated opinions from seven separate courts of appeals over the past nine years.[3] In each, unlawfully present noncitizens or nonimmigrants challenged the constitutionality of 18 USC § 922(g)(5), which criminalizes firearm and ammunition possession by persons without lawful status as well as most classes of nonimmigrants.[4] And, in each, federal courts uniformly upheld the provision against constitutional challenges. Surveying those opinions, judges either replicated Heller’s untheorized limitations on “the people”, or sidestepped it, only to accomplish the same result by trading on notions of immigrant criminality and lawlessness. Indeed, at least one appellate court rejected the noncitizen’s claim under circumstances that implicate Heller’s paradigm firearms use-case: Brandishing a firearm in defense of others at a home.[5]

This essay calls attention to the reasoning in the appellate court cases that have wrestled with Heller’s irresponsible citizenship talk.[6] By upholding § 922(g)(5), those courts permit the federal government to continue to bar several million people from exercising a right that Heller jealously guards for citizens. Moreover, if Heller’s rationale is taken to its limits, Congress could expand federal law’s reach beyond unauthorized and temporary migrants, to exclude lawful permanent residents as well, thus making criminal prohibitions coterminous with current deportation law based on firearms violations.[7] To be clear, the stakes here are not just about gun rights; noncitizens likely are less interested in possessing guns than U.S. citizens, as most hail from countries with rules and norms against personal firearm possession. Beyond arms bearing, categorically excluding noncitizens from “the people” of the Second Amendment entrenches and normalizes the denial of other critical constitutional protections to noncitizens.

In some of these post-Heller cases, judges double-downed on Heller’s citizenship specification.[8] In other work, I have chronicled the textual, doctrinal, and historical concerns with equating “the people” in the constitution with citizens.[9]  In brief, as a textual matter, such an interpretation is hard to square with the Constitution’s explicit use of the word “citizen” and “citizenship” in various provisions, as well its grant of power to Congress to transition noncitizens into citizens through naturalization. The Second Amendment however – like the Preamble, and First, Fourth, Ninth, and Tenth Amendments – references a more nebulous “the people.” Those references have generally been understood to be evocative of an unspecified collective, rather than denote citizenship status. Of course, it might be that the Second Amendment necessitates a different and more circumscribed definition than the phrase as used in other constitutional clauses. Yet, the campaign to divorce the right to bear arms from service to, or protection from, the state suggests exactly the opposite: That the Second Amendment is not to be interpreted differently than other constitutional protections.

As a doctrinal matter, United States v. Verdugo-Urquidez is the only modern case with an extended focus on “the people.”[10] There, the Court declined to allow a noncitizen brought into the U.S. for criminal proceedings to raise a Fourth Amendment challenge to the search of his home in Mexico by U.S. and Mexican authorities. Even so, the majority declined to limit “the people” protected against unreasonable searches and seizures to citizens. Instead, it described “the people” as referring to those with “who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community” (emphasis added). This nebulous and indeterminate formulation rejects the idea that constitutional rights turn on immigration status alone. Heller conspicuously substitutes the phrase “political” for “national”, contradicting Verdugo-Urquidez while claiming to affirm it.

Finally, many historical exclusions of foreigners from gun rights were premised on loyalty concerns during wartime, or along expressly racial lines.[11] Indeed, the most prominent linkage of gun rights to citizenship finds voice in the anti-canonical case of Dred Scott v. Sandford. The Dred Scott Court narrowed several important constitutional protections to citizens, but only by conjuring the transitive relationship between citizenship, race, and constitutional rights (including gun rights).[12] 

Perhaps because Heller’s narrowing of “the people” is so thinly or odiously supported, other appellate courts confronted with the constitutionality of § 922(g)(5) have instead assumed noncitizens (including unauthorized noncitizens) can raise Second Amendment challenges.[13] Nevertheless, they upheld the provision by purporting to apply the type of scrutiny courts have applied to other regulations in the wake of Heller. With various formulations, lower federal courts have evaluated firearms and ammunition regulations under heightened scrutiny, toggling between strict and intermediate scrutiny depending on the nature of the restriction.[14] Invoking those judicial tests, these opinions held that because the noncitizens covered in 922(g)(5) were not “law-abiding”, Congress could criminalize their possession of firearms or ammunition.

This alternate approach is beset by its own doctrinal and conceptual difficulties. Primarily, it allows the government to trade on innuendo about immigrant criminality and tendency to lawless behavior. Moreover, by defining millions of noncitizens as lawless, this tack amounts to the same as equating “the people” with “citizens” for purposes of assessing §922(g)(5). In sum, although these opinions purport to apply a more nuanced approach, they still categorically exclude the same millions of individuals from second amendment protection.

First, as a doctrinal matter, the type of ends-means fit in the courts’ analyses does not resemble the heightened scrutiny used in other areas of constitutional analysis. Rather than require substantiation of the claim that unauthorized noncitizens are not – as a class – law-abiding in ways that relate to gun possession, these opinions indulge Congress’ judgment about the dangerousness or tendency to lawlessness of persons lacking lawful or permanent immigration status.[15] But that form of deference, and its tendency to relieve the government of its burden, are precisely what heightened scrutiny is intended to reject. In an opinion concurring in judgment with the Second Circuit panel in United States v. Perez, Judge Menashi sharply critiqued the panel precisely for this slippage into deferential rationality review under the guise of heightened scrutiny.[16]

Indeed, a more faithful application of heightened scrutiny would have to contend with two concerns. First, available empirical evidence suggests that noncitizens – including unlawfully present noncitizens – are less likely to commit crimes, including violent crimes, than native born.[17] Second, unlawful presence, by itself, is legally distinct from the “long-standing” exclusions Heller purports to permit for “felons and the mentally-ill.” Unlawful presence is not a criminal violation, let alone a felony. If the legal violation of unlawful presence is sufficient to make that connection, the government’s ability to exclude several classes of persons – both citizens and noncitizens – with prior administrative or civil violations would be greatly expanded.[18] Other opinions avoid reliance on status alone, but suggest that the nature of unlawful presence makes those individuals more likely to evade detection and thus harder to identify and track.[19] While such justification is not implausible, heightened scrutiny requires more of the government than articulating any conceivable, post-hoc rationale. Further, treating unlawful status as dispositive fails to account for the potential fluidity of that status, including the multiple possibilities for an unauthorized noncitizen to obtain lawful permanent residency, and eventually, citizenship.

Perhaps recognizing the obvious frailty of equating unlawful presence with the type of lawlessness relevant to firearms possession, some appellate judges attempted to finesse the connection between immigrants and criminality by featuring the criminal background of the noncitizen-defendant. For example, some opinions mention possible prior gang affiliations or surface uncharged criminal allegations. But, if unlawful status itself triggers the exclusion (as these opinions suggest), such biographical details are extraneous, and appear designed solely to paint the noncitizens as inherently dangerous in ways relevant to firearms possession. In comparison, a noncitizen’s lack of criminal history,[20] use of firearms for work purposes,[21] possession of minimal amounts of ammunition without a gun,[22] or use of a firearm in defense[23] failed to mitigate or overcome the deficit created by immigration status alone. This divergent treatment of defendants’ prior history indicates that for noncitizens, criminal background is a one-way ratchet, only useful when it can help courts link immigrant status implicitly to violent criminality.

In sum, the current judicial approaches to this set of post-Heller cases – one that narrows “the people” and the other that hyperbolizes the lawlessness of unauthorized noncitizens – are blinkered interpretations of the Second Amendment.

To be clear, although I argue that these rationales are untenable, I do not approach this debate with a deregulatory agenda regarding firearms. My central concern is the way in which these interpretations facilitate the general degradation of constitutional rights for the tens of millions of noncitizens in our polity. Heller’s irresponsible talk of citizens, and the subsequent lower courts that have uncritically adopted it, threaten to widen that inequity if left unchecked. The narrowing of Second Amendment rights normalizes a decades long project by some federal judges, like Justice Alito, incrementally to strip noncitizens of other vital constitutional protections.[24] My examination of this less-heralded set of post-Heller Second Amendment cases shines a light on that exclusionary campaign.

Click here to view a PDF of this essay. 

Cite as: Pratheepan Gulasekaram,“The People”, Citizenship, and Firearms, Duke Ctr. For Firearms L.: Second Thoughts Blog (Jan. 13, 2022), https://firearmslaw.duke.edu/2022/01/the-people-citizenship-and-firearms.

 

[Ed. note: This essay is part of a collection of writings from the Center’s 2021 roundtable on Race and Guns in America.]

 

Notes

[1] Here, I use the term citizenship in the legal sense, differentiating between “citizens” and “non-citizens” as a citizenship or immigration status. Citizenship may also be used in the broader sense, to connote full and complete forms of membership versus “second-class” citizenship, in which those with the status of citizenship are nevertheless treated as less than full members of a polity. Although my perspective here has implications for the latter, I am centrally concerned with the former.

[2] 554 U.S. 570, 580-81, 584, (2008).

[3] United States v. Perez, 6 F.4th 448 (2d Cir. July 29, 2021); United States v. Torres, 911 F.3d 1253 (9th Cir. 2019); United States v. Meza-Rodriguez, 798 F.3d 664 (7th Cir.2015); United States v. Huitron-Guizar, 678 F.3d 1164 (10th Cir. 2012); United States v. Carpio-Leon, 701 F.3d 974 (4th Cir. 2012); United States v. Flores, 663 F.3d 1022 (8th Cir. 2011); United States v. Portillo-Munoz, 643 F.3d 437 (5th Cir. 2011). These challenges all involved unlawfully present noncitizens. One other opinion from the Ninth Circuit Court of Appeals, United States v. Singh, 979 F.3d 697 (9th Cir. 2020), upheld the federal law against a challenge by a nonimmigrant.

[4] 18 U.S.C. § 922(g)(5) (“It shall be unlawful for any person, who, being an alien (A) is illegally or unlawfully in the United States; or (B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa…..”). The term “nonimmigrant” under federal immigration law means noncitizens lawfully present in the United States for limited duration and/or for a specific purpose; under the statute, “immigrant” refers to lawful permanent residents (green card holders). 8 U.S.C. § 1101(a)(15). The exception in 18 U.S.C. § 922(y)(2) referenced in § 922(g)(5)(B) exempts nonimmigrants who have been admitted for hunting or sporting purposes, or others with a permit for carrying a firearm.

[5] See, e.g., Perez, 6 F.4th at 449-50 (noting, in recitation of facts, that unlawfully present noncitizen borrowed a firearm to deter a group of armed individuals approaching a gathering at a private home).

[6] See Joseph Blocher, United States v. Perez and Doctrinal Development, Duke Center for Firearms Law Blog, Sep. 15, 2021.

[7] 8 U.S.C. § 1227(a)(2)(B) (classifying “any alien” convicted of any firearms law as potentially deportable).

[8] See Portillo-Munoz, 643 F.3d at 442 (holding that “the people” did not include unlawfully present noncitizens); accord, Flores, 663 F.3d at 1023 (citing Portillo-Munoz); Perez, 6 F.4th at 456 (Menashi, J., concurring) (concluding that unlawfully present noncitizen could not raise a Second Amendment claim).

[9] My prior work has critiqued this interpretative move as incompatible with an individual right/self-defense reading. I concluded that that either the amendment is connected to state defense or defense from the state, in which case courts may plausibly limit the right to bear arms to citizens, or the right is truly centered on individual self-defense, rendering categorical prohibitions based on immigration status difficult to justify. See Gulasekaram, Guns and Membership in the American Polity, 21 Wm. & Mary B Rights J. 619 (2012); “The People” of the Second Amendment, 85 N.Y.U. L. Rev. 101 (2010); Aliens with Guns, 92 Iowa L. Rev. 891 (2007).

[10] United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) (denying, on the grounds that he was not part of “the people” of the Fourth Amendment, a Mexican national’s right to raise a Fourth Amendment challenge to search of his residence in Mexico by U.S. and Mexican law enforcement during his prosecution in U.S. federal court).

[11] See, e.g., Angela R. Riley, Indians and Guns, 100 Geo. L. J. 1675 (2012); Robert Churchill, Gun Regulation, the Police Power, and the Right to keep Arms in Early America, 25 Law & Hist. Rev. 139 (2007); Saul Cornell & Nathan DeNino, A Well Regulated Right: The Early American Origins of Gun Control, 73 Fordham L. Rev.487 (2004) (noting firearms laws conditioned on loyalty oaths, and concerning possession by particular religious minorities); Saul Cornell, Commonplace or Anachronism: The Standard Model, the Second Amendment, and the Problem of History in Contemporary Constitutional Theory, 16 Const. Comment. 221 (1999); Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (1998); Lee Kennett & James LaVerne Anderson, The Gun in America: The Origins of a National Dilemma (1975)

[12] Dred Scott v. Sandford, 60 U.S. 393, 416-17 (1856):

“For if [‘members of the African race’] were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.” (emphasis added)

[13] Perez, 6 F.4th at 453 (opining that there was no definitive answer to whether unlawfully present noncitizens were excluded from “the people”, and instead assuming, without deciding, that such noncitizens could raise Second Amendment challenges); accord, Torres, 911 F.3d at 1261; Meza-Rodriguez, 798 F.3d at 670; Huitron-Guizar, 678 F.3d at 1168.

[14] See, e.g., Perez, 6 F.4th at 453-54.

[15] See, e.g., Torres, 911 F.3d at 1264.

[16] Perez, 6 F.4th at 457, 459 (Menashi, J. concurring in judgment) (arguing that the majority is “watering down” intermediate scrutiny, and critiquing the majority’s deference to Congress’ policy judgments and assumptions regarding a conclusion that may end up being false).

[17] Ruben Rumbaut, Katie Dingeman, Anthony Robles, Immigration and Crime and the Criminalization of Immigration, in Routledge International Handbook of Migration Studies (Gold & Nawyn, eds. 2018). Note that one does not need to rely on the particular conclusions of this research; for purposes of my critique, the critical question is whether such empirical evidence should matter to courts engaged in forms of heightened scrutiny.

[18] Of course, illegal entry can be charged as a misdemeanor, and illegal re-entry can be charged as a low-level felony. But even under those circumstances, Congress does not always consider those immigration crimes to be persistent legal disabilities. In the past, federal deportation law included a statute of limitations, such that unlawful entry could not be charged after five years and the person could not be removed. Even today, the immigration code provides several statutory basis for overcoming unlawful status, including through unlawful entry, and regularizing immigration status and later, naturalizing.

[19] See, e.g., Torres, 911 F.3d at 1264.

[20] See e.g., Meza-Rodriguez, 798 F.3d at 666 (not mentioning criminal history apart from incident giving rise to §922(g)(5) prosecution); Portillo-Munoz, 643 F.3d at 439 (noting that noncitizen’s presentence report did not report any prior criminal history or arrests).

[21] Portillo-Munoz, 643 f.3d at 439 (prosecution of noncitizen working on ranch who stated that he possessed firearm to protect chickens from coyotes).

[22] Meza-Rodriguez, 798 F.3d at 666 (prosecution based on possession of a .22 caliber cartridge).

[23] Perez, 6 F.4th at 450 (prosecution of noncitizen brandishing firearm to deter armed intruders)

[24] Thuraisiggiam v. Dep’t of Homeland Security, 140 S.Ct. 1959 (2020) (Alito, J.) (denying habeas and due process rights to unlawfully present person in expedited removal proceedings); Kansas v. Garcia, 140 S.Ct. 791 (2020) (Alito, J.) (upholding state criminal prosecution of noncitizens for fraud in employment procurement against preemption challenge); Hernandez v. Mesa, 140 S.Ct. 735 (2020) (Alito, J.) (refusing to extend Bivens to claim of parents of a Mexican child who shot and killed by U.S. Border Patrol agent who fired across the border at the child); Jennings v. Rodriguez, 138 S.Ct. 830 (2018) (Alito, J.) (casting doubt on due process challenges to immigrant detention without bond)




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.]