The scholarship highlighted in this post does not necessarily represent the views of the Duke Center for Firearms Law.

In a new paper posted to SSRN and forthcoming in the Ohio State Journal of Criminal Law, Nicholas Goldrosen examines the connection between marijuana legalization and gun restrictions premised on drug use.  Goldrosen performs an empirical analysis of the impact of marijuana legalization, observes that “18 U.S.C. 922(g)(3) is likely not a bulwark against legal marijuana users suddenly becoming violent,” and argues in favor of “unified federal reform of either 922(g)(3) or the entire Controlled Substances Act” to address the intersection between marijuana use and firearms (rather than relying on legal challenges under Bruen, which have produced conflicting outcomes).

Two articles in the most recent issue of the Missouri Law Review also address Second Amendment-related topics.  An article by Dru Stevenson provides a comprehensive point-by-point summary of commentary by legislators during the original Congressional debates over the Second Amendment.  And Dominic Biffignani considers how challenges by the federal government to state “Second Amendment sanctuary” laws may implicate the doctrine of intergovernmental immunity (we have covered litigation over Missouri’s “Second Amendment Protection Act” here and here).  

Nicholas Goldrosen, Subtracting 420 from 922: Marijuana Legalization and the Gun Control Act After Bruen, Ohio St. J. of Crim. L. (forthcoming)

Abstract:

Numerous states have legalized marijuana for medical and recreational use. Nonetheless, federal law prohibits users of marijuana, which remains illegal federally, from possessing firearms. I interrogate this legal tension from two angles. First, this paper brings empirical evidence to this conversation: Does legalizing marijuana lead to more gun deaths?

It doesn’t. This article analyzes the effect of recreational and medical marijuana legalization on gun homicides, suicides, and deaths as well as on gun prevalence, gun purchasing, and federal gun prosecutions. I combine administrative data from the National Vital Statistics System, National Instant Criminal Background Check System, and United States Sentencing Commission for the period from 2010 through 2020. To estimate a causal effect, I employ a difference-in-differences method with staggered treatment timing from Callaway and Sant’Anna (2021) to compare states that have legalized marijuana to those that have not yet legalized marijuana but will during the study period. There is no evidence of a statistically significant treatment effect of either recreational or medical marijuana legalization on firearms deaths, homicides, or suicides. Additionally, there is no evidence that legalization causes greater firearms sales or prevalence, or that the federal gun prohibition for marijuana users deters gun killings post-legalization.

Secondly, this regulation has received new scrutiny after the Supreme Court’s recent ruling in NYSRPA v. Bruen, under which firearms regulations must be justified by consistency with “this Nation’s historical tradition of firearm regulation.” Courts have come to conflicting answers on whether the prohibition on gun ownership by marijuana users accords with the Second Amendment under Bruen. I therefore survey three potential legal paths for resolving the conflict between state legalization of marijuana and federal gun laws. First, legislators might directly amend the Gun Control Act to allow for gun possession by some or all marijuana users. Second, legislators might reform marijuana’s status within the Controlled Substances Act more broadly. Finally, an uncertain future for the controlled-substance-user prohibition exists in the courts post-Bruen. The Bruen decision’s unworkable tests do not clearly support either upholding or striking down this ban. If anything, the interpretation of the federal ban on gun possession by marijuana users under Bruen highlights the impracticability of its test. Amongst these solutions, I argue that broader Controlled Substances Act reform is the likeliest to provide consistency while not harming public safety.

Dru Stevenson, Revisiting the Original Congressional Debates About the Second Amendment, 88 Mo. L. Rev. 455 (2023)  

Abstract:

Many scholars and courts have written about the historical background of the Second Amendment, either to emphasize its connection to state-level citizen militias or to argue that the Amendment protects an individual right to own and carry guns for self-defense. While many authors have mentioned the original congressional debates about the Second Amendment, the literature is missing a thorough, point-by-point analysis of those debates, situating each statement in Congress within the context of the speaker’s background and political stances on issues overlapping with the right to keep and bear arms. This Article attempts to fill this gap by providing a methodical discussion of each comment or argument made in Congress when the Second Amendment was under consideration. This discussion addresses how each of the congressmen’s comments connect to public statements made by the same members of Congress in the months that followed on related topics: taxation and public debt related to militias, the supply of available firearms and their legal status as private or public property, the institution of slavery, westward expansion, and especially the complications for each of these issues posed by the Quakers, who became the center of attention during the debates about the Second Amendment. These original congressional debates have taken on more importance following the Supreme Court’s recent holding that courts should decide Second Amendment challenges based on historical evidence from the years immediately preceding and following ratification. While this Article does not take a position on current litigation over modern firearm regulations, the discussion here can offer courts and commentators new insights into the original public meaning of the Second Amendment.

Dominic Biffignani, The Applicability of Intergovernmental Immunity Doctrine to Second Amendment Sanctuary Laws, 88 Mo. L. Rev. 369 (2023)

Abstract:

To what extent can states enact legislation that frustrates federal regulation of firearms—in an effort to maximize protections of the Second Amendment and related state constitutional provisions— without running afoul of the Supremacy Clause? The answer to that question lies within the intergovernmental immunity doctrine, a virtually obscure legal doctrine with origins in the Supremacy Clause and Chief Justice John Marshall’s famous opinion in McCulloch v. Maryland.

For many years, the United States Supreme Court was reluctant to clarify the contours of intergovernmental immunity. This did not stop the federal government from asserting the doctrine in various actions to strike down state laws frustrating federal schemes—most notably to challenge California laws frustrating the federal government’s immigration framework. The federal government’s assertion of the doctrine achieved mixed results, with both district courts and the circuit courts applying the doctrine in a haphazard manner. However, the United States Supreme Court’s recent clarification of intergovernmental immunity in United States v. Washington breathed new life into the doctrine and cemented its importance in future disputes between the federal government and the states

In response to President Biden’s election and vow to increase federal regulation of firearms, many state legislatures passed what this Article calls Second Amendment sanctuary laws. The general purpose of these laws is to resist increasing federal regulation of firearms. Recently, the federal government has brought declaratory judgment actions seeking to declare some Second Amendment sanctuary laws unconstitutional, asserting intergovernmental immunity as a basis for declaring these state laws invalid. This Article recounts the history of intergovernmental immunity (and its doctrinal brethren), argues why the doctrine is important to Second Amendment sanctuary litigation, and applies it to various Second Amendment sanctuary laws in order to provide an applicable framework for future practitioners, legislators, and courts tackling intergovernmental immunity issues.

The Sixth Circuit recently cleared the way for a district court case that will address the complicated interplay of gun displays, online speech, and qualified immunity.

On January 20, 2021, the Grand Traverse County (Michigan) Board of Commissioners held a public meeting over Zoom where the Commissioners, including Ron Clous, were visible on video. During the public comment portion of the meeting, multiple attendees criticized the Commission for inviting the Proud Boys to speak at a prior meeting in support of a resolution designating the County as a “Second Amendment Sanctuary” (for more background on “sanctuary” ordinances, see our past posts here and here). The Board Chairman responded aggressively in defense of the Proud Boys and accused those attendees of “spreading lies.”

Patricia MacIntosh, a citizen of Grand Traverse County, used her allotted time to express her concerns about the Proud Boys’ involvement in occupying the Michigan capitol in 2020 and storming the United States Capitol just two weeks prior. MacIntosh then asked the Commission to make a public statement denouncing the Proud Boys and similar groups. Commissioner Clous walked off screen, returned holding a rifle, and smirked at the camera. The Chairman of the Commission laughed. Clous admits he displayed his rifle in response to MacIntosh’s public comment.

MacIntosh subsequently sued both Clous and the county, alleging a First Amendment retaliation claim against Clous and an unconstitutional policy or practice claim against the county. MacIntosh alleged that Clous’s actions made her feel fearful, intimidated, and physically threatened. She characterized the encounter as “a threat with a deadly weapon that [she] interpreted as ‘a symbolic message to say ‘stop or else’ he would use that weapon against her.’” The defendants filed a motion to dismiss arguing that MacIntosh failed to state viable claims, and Clous asserted a qualified immunity defense. A magistrate judge denied the motion to dismiss, ruling from the bench. He found that MacIntosh had pled a plausible claim and that qualified immunity was not appropriate at the motion to dismiss stage because it was clearly established that a government official cannot retaliate against a citizen for criticizing a government official. The defendants filed an interlocutory appeal to the Sixth Circuit.

In a 2-1 decision, Judge Jane B. Stranch affirmed the district court’s denial of MacIntosh’s motion to dismiss. The decision on qualified immunity involved two inquiries:  (1) whether MacIntosh alleged conduct that violated a constitutional right, and (2) “whether the right was ‘clearly established such ‘that a reasonable official would understand that what he is doing violates that right.’” The majority found MacIntosh’s allegation that Clous threatened to shoot her over her speech was plausibly an adverse action that would deter a “person of ordinary firmness” from exercising her First Amendment rights. The majority did not consider the behavior less threatening simply because it took place in a virtual, rather than in-person, meeting. The dissent argued that Clous’s actions were not sufficiently adverse because he never pointed the muzzle of the rifle towards the camera and because MacIntosh continued to speak through her allotted time. The majority cited multiple cases where a government official’s use of physical threats to deter speech was held to be a First Amendment violation and found that, therefore, Clous had fair warning that he was violating a clearly established constitutional right by displaying his rifle to MacIntosh. The dissent by Chief Judge Jeffrey Sutton characterized Clous’s conduct more narrowly and observed that no precedent exists involving the display of a weapon during a virtual meeting specifically. The dissent would have dismissed the case on qualified immunity grounds.

This case presents a novel fact pattern about the display or brandishing of firearms in virtual settings, an issue which is likely to arise in the future given the prevalence of virtual meetings and communication since the onset of the COVID pandemic.

The Michigan Penal Code defines brandishing as “to point, wave about, or display in a threatening manner with the intent to induce fear in another person.” In Michigan, brandishing a firearm in public is a misdemeanor offense (peace officers and those brandishing a gun for lawful self-defense are exempted from the criminal prohibition). In the abstract, it appears that the brandishing statute could apply here. The meeting was open to the public, and the statute does not require the display to occur in-person or be accompanied by any specific verbal threat. At the same time, MacIntosh was in no threat of any imminent physical harm. Even if Clous had pointed the rifle at the camera, he was only capable of inflicting physical harm upon himself or his own computer.

Nonetheless, Clous admitted that he displayed his rifle in response to the criticisms of the Proud Boys, whose members are known to dress in “tactical” clothes and openly carry firearms at protests. What exactly the Proud Boys normally intend to communicate by openly carrying guns is debatable, but ostentatious gun displays in general are often received as attempts to intimidate and can dissuade people from participating in public life in ways they normally would. For example, the presence of armed vigilantes at Arizona ballot drop boxes led to voter intimidation complaints in the 2022 election, and the Michigan legislature canceled legislative sessions in the wake of the 2020 state capitol occupation. Ultimately, the Michigan Attorney General’s Office chose not to pursue criminal charges after determining there was insufficient evidence of malicious intent (intent to induce fear in another person, namely MacIntosh).

Even when the conduct does not clearly violate criminal brandishing prohibitions, the display of a firearm can send a threatening message beyond the immediate situation, and virtual displays have garnered significant controversy recently. NBA superstar Ja Morant has been suspended multiple times for  displaying a handgun while on a livestream video. Morant was not accused of doing anything illegal, but the NBA has nevertheless imposed suspensions for “alarming and disconcerting” behavior and noted that “other young people [may] emulate [Morant’s] conduct.” In April 2020, a Harvard Law student displayed and cleaned a handgun on video during a virtual class. At the time, Harvard prohibited firearms on campus but had no guidelines on displaying a firearm in a virtual academic setting. The display of the firearm was likely distracting to other attendees, and one classmate said, “I was worried I was going to watch my peer accidentally shoot himself. None of us had any way to know the gun was loaded or unloaded.”

These situations illustrate the uncertainty surrounding brandishing prohibitions and the line between innocuous gun displays (especially in states where open carry is legal) and conduct that might be reasonably interpreted as threatening or improper. Moreover, there is concern that strict intent requirements in brandishing statutes might make that crime entirely duplicative of assault and prevent law enforcement from addressing potentially problematic gun displays. Brandishing was only statutorily defined in Michigan in 2015, and the previous common law rule did not require proof of specific intent to harm another individual. New Mexico also added a specific intent requirement to its brandishing statute in 2020, while increasing the sentencing enhancement for brandishing. Both the Michigan and New Mexico laws passed with broad bipartisan support. Although these states reached bipartisan consensus, the underlying motivation for requiring intent in brandishing laws is often unclear.  Some legislators may view broad brandishing statutes as incompatible with the open carrying of firearms in public, while others may be concerned about discriminatory enforcement.  

MacIntosh, which will proceed before the district court after the denial of Clous’s motion to dismiss, represents a novel fact pattern that may become more common in an increasingly virtual world. It also highlights how firearms are more likely, today, to communicate a political or social message on their own. Even when a firearm’s capability for imminent harm is removed, it can still have profound communicative power especially in the context of Second Amendment discussions. The display of a firearm in a virtual setting is largely uncharted legal territory. When a state criminalizes brandishing, what problem is it seeking to address? Is the state merely concerned with the threat of imminent violence, or also with the message that a firearm display might convey? MacIntosh potentially leaves the door open for federal constitutional law to address the latter issue.

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).

Missouri enacted what it called a “Second Amendment Protection Act” (SAPA) in 2021. As I’ve written previously about the law, it not only bars state officials’ assistance with the enforcement of federal gun laws, but also purports to nullify some of those laws in the state. The law has faced a number of lawsuits, including from the U.S. Justice Department and, separately, the City of St. Louis and several counties. The DOJ lawsuit is proceeding separately, but the Missouri Supreme Court released an opinion earlier this week in City of St. Louis v. State, holding 6-1 that the local government plaintiffs could proceed with their lawsuit for declaratory relief.

That lawsuit began shortly after the SAPA was signed into law. The localities claimed that

SAPA infringed upon rights guaranteed by the state and federal constitutions, curtailed law enforcement officers’ ability to investigate, apprehend, and prosecute criminals: and violated the United States Supremacy Clause. The petition further claimed SAPA violated the Missouri Constitution because it: usurped the power and authority granted to charter cities and counties; did not having a single subject, clear title, or original purpose; created a special law; and infringed upon the separation of powers.

They argued that immediate relief was necessary because “they were parties to several task forces with federal law enforcement agencies,” and pursuant to those task forces, often participated in assisting with the enforcement of federal gun laws. The trial court, however, rejected the plaintiffs’ request for declaratory and injunctive relief because it concluded that they had an adequate remedy at law—they could raise their constitutional arguments in defense to civil actions seeking to enforce the SAPA.

On appeal, the state defended the lower court’s ruling on both the grounds that the lawsuit was not ripe because the state had not sought to enforce the SAPA provisions against the localities and on the grounds that adequate remedies at law existed. The Supreme Court rejected the first argument because the Declaratory Judgment Act was specifically designed to settle such constitutional questions in advance. And the localities did not have an adequate alternative remedy by merely being able to invoke their constitutional defenses in later affirmative lawsuits because those would subject them to multiple and varying suits. Adopting an apt metaphor the Court had used in a prior case, it said “[o]nce the gun has been cocked and aimed and the finger is on the trigger, it is not necessary to wait until the bullet strikes to invoke the Declaratory Judgment Act.” The Court’s precedents, it continued, meant that “a party need not face a multiplicity of lawsuits or wait for an enforcement action to be initiated before seeking a declaration of rights.”

The Supreme Court declined, however, to issue an opinion on the constitutional claims in the first instance, but instead remanded for the lower court to do so initially. The case will now go back to have the constitutional claims adjudicated and may be a signal for how other SAPA-style laws will fare when confronted with these kinds of questions about their legality.

Sheila Simon, Assistant Professor of Law at Southern Illinois University School of Law, recently published a fascinating paper about gun sanctuary ordinances – On Target? Assessing Gun Sanctuary Ordinances that Conflict with State Law, 122 W. Va. L. Rev. 817 (2020) – which she was generous enough to discuss with me in our most recent scholarship highlight.

In addition to her academic work, Professor Simon has held a variety of positions in state and local government (she was Lt Governor of Illinois from 2011 to 2015), so she has an especially good professional and practical vantage point on the state-local dynamic in play here. And, as we discuss in the interview, Illinois is a particularly useful case study, given that the preemption movement and the gun sanctuary movement both kicked off there. The paper provides a nuanced look at the costs and benefits of sanctuary ordinances, and is well worth a close read.

And if you haven’t already, check out Darrell’s conversation with Shawn Fields on the same topic!

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.]

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.]

The city is an increasingly common site of contestation for the right to keep and bear arms. Historically, much of gun regulation has been local, such as laws preventing the carrying of firearms into courthouses and schools or requiring that individuals obtain a license or provide a particular reason to carry a weapon.  As a result of a concerted effort by gun-rights advocates in the middle of the last century, however, many states have preempted local authority when it comes to firearms.  Some states, like Missouri, have proposed permitting (or at least decriminalizing) the carrying of weapons into local government buildings.   More than half of states now permit concealed carry in public streets regardless of training or expertise. Still other jurisdictions, such as Texas, have broadly preempted all gun regulation by local governments, effectively rendering the state the only entity authorized to pass firearm-related laws.

Of course, not all local governments want to restrict gun use.  Some seek to expand it.  A few school districts have sought to arm teachers in response to school shootings, in some cases leading to state laws banning the practice. And some cities and counties have declared themselves “Second Amendment sanctuaries,” committing themselves to resisting any law they regard as curbing gun rights.

Scholars have explored guns and local government from a number of perspectives, but at least one remains unexplored: What is the status of the city itself as a bearer of Second Amendment rights? Can the Constitution be read to confer the right to keep and bear arms on municipal governments? And if so, how would this change contemporary debates about gun regulation?

It’s unsurprising that scholars have not engaged this issue: a city claiming Second Amendment rights must overcome two seemingly insuperable hurdles.  First, a longstanding principle of blackletter law maintains that municipal governments have no constitutional rights that can be asserted against their states.   Second, even if cities could bear some constitutional rights, after District of Columbia v. Heller the Second Amendment is commonly thought to be an individual right, not one reposed in groups. This post, adapted from our forthcoming article, challenges both these propositions and, in so doing, outlines a theory of the city’s Second Amendment.

First, it is often claimed that cities have no constitutional rights against their states.  Cities that try to assert constitutional rights are often dismissed with a brief citation to the Supreme Court’s decision in Hunter v. Pittsburgh, or perhaps a reference to Dillon’s Rule, both of which treat the city as simply an administrative arm of the state – little different than the state department of motor vehicles.  The underlying notion is that municipal corporations are merely “artificial entities” that exist only by grace of state charters. Since states can create or destroy these charters at will, these corporations cannot have any independent rights, and certainly none contrary to the state upon which they rely for their very existence.

But this proposition about city powerlessness is frequently asserted without reflection as to its doctrinal accuracy or its theoretical justification.  Cities can and do assert constitutional rights against their states, in cases like Romer v. Evans and Washington v. Seattle School District No. 1, and in some procedural cases where the city is a litigant.   In fact, courts casually grant cities legal personality in ways that seem to fly in the face of Hunter or Dillon’s Rule, forming what Rich Schragger calls a “shadow doctrine” that a number of other scholars have recognized.   Further, in our case by case system of constitutional adjudication, recognition of a municipal corporation’s constitutional claim in one matter demands explanation why it shouldn’t apply in another.

Pragmatically, the notion that local governments are no more than passive administrative entities that carry out state priorities bears no resemblance to the modern American city.  If anything, the city may be the most vital of America’s various layers of government. It is small enough to engage in policy experimentation, close enough to its citizens to engage in true democratic responsiveness and participation, and occasionally powerful enough to serve as a meaningful intermediary between individuals and state or national government.

Even if one accepts, as we believe, that the doctrine of municipal personality relies on an outdated conception of the city’s legal status, that does not mean that cities automatically enjoy Second Amendment rights. On the contrary, while law presumes that individual citizens presumptively bear all enumerated constitutional rights, it is not obvious whether private institutions or state actors can assert these protections. One way to think about this issue is that some Bill of Rights protections protect not only individual liberty but also collective activity as well. The First Amendment’s Speech Clause, for example, may be understood not only to protect individuals from state restrictions on their expression, but also to promote a collective interest in a system of free expression, the institutions that make that system meaningful, and the public goods that right is meant to supply.

While the Second Amendment is primarily understood as a bulwark of individual freedom, it too possesses underappreciated collective components, in addition to individual ones. Like the Speech Clause, the right to keep and bear arms may be understood as productive of a collective good as well: public safety. This is clear from the text of the Militia Clause (which reposes the right in “the people”); Heller itself (which nowhere stated that the right to keep and bear arms is a purely personal right); and in the history of the clause (which has its roots in the public peacekeeping functions of private arms-bearing).

The city is a particularly apt institution to promote the public-safety aspects of the right to keep and bear arms. Indeed, cities have their origins in the need for collective self-defense. Throughout this nation’s history, local governments have taken the lead in providing internal security, as the predominance of city watchmen and county police and sheriff’s departments in law enforcement illustrates. Traditionally municipal governments have enjoyed considerable discretion to determine how to preserve their internal security, further illustrating that the city is institutionally well suited to promote the Second Amendment’s public-safety component.

Having overcome the two major objections to situating municipal governments as Second Amendment rights-bearers, the task remains to outline the substantive contours of the city’s right to keep and bear arms. One way this cashes out is that it highlights localities as salient actors in constitutional discourse about arms-bearing. Just as state actors are regarded as free to engage in speech-acts under the “government speech” doctrine, so should municipal entities be able to privilege their own decisions about collective security via arms-bearing. This has two implications: First, that when individuals carry firearms in the employ of the public safety interests of the city, we regard them not as exercising their individual right to keep and bear arms, but a collective exercise on behalf of the state actor. Second, local governments, as the institutions best suited to promote their own collective security, should enjoy some measure of deference to arms-bearing decisions designed to advance that security, even in the face of state or federal laws to the contrary.

So understood, the city’s Second Amendment promises to recast many contemporary debates about the constitution and gun ownership. Consider several examples. First, several Seattle Police Department officers recently sued the City of Seattle on a Second Amendment theory, arguing that restrictions on their use of force that Seattle accepted in a consent decree violated the officers’ individual rights to bear arms. The Ninth Circuit denied the officers’ claim, but accepted the proposition that police had enforceable Second Amendment rights against the cities that employed them. Interposing the government arms doctrine would obviate this argument. It would recast municipal law enforcement officers as bearing not individual rights to bear arms, but rather collective rights to bear arms on behalf of the cities whose internal security they are employed to preserve.

Second, some local governments in New York passed laws empowering teachers to carry firearms in class in an attempt to deter school shootings. The New York state government swiftly prohibited this practice statewide. The local laws in this instance are unorthodox; cities usually repose the responsibility to preserve collective security on the police, rather than teachers, principals, or other school staff. This distinction, though, makes little difference for the analysis. Should a municipality decide on a particular strategy for preserving public safety, that should merit deference, regardless of whether the outcome is regulation or deregulation of firearms. Of course, such decisions would be subject to the constitutional means/ends scrutiny to avoid irrational or arbitrary decision making.   In addition, a municipal decision to empower school personnel to threaten deadly force does not relieve them of their obligation as state actors to employ those arms in conformity with other restrictions, like the Fourth Amendment.

Finally, many American counties and cities have declared themselves “Second Amendment sanctuaries,” passing legislative resolutions suggesting that they will resist any firearm regulations they regard as unconstitutional. These resolutions have to date been largely symbolic – but imagine that a state passed a law requiring universal background checks for gun purchases, and a self-declared sanctuary city refused to obey, issuing firearms to all comers, regardless of the regulation. Here, the city would have to articulate a plausible explanation why implementing universal background checks would hamper its ability to promote public safety on behalf of its residents.   And there may be some reason to treat regulations on bearing firearms for public safety differently from those designed to regulate a right to keep firearms for defense at home.

The city plays a central role in many contemporary controversies over the scope of the recently vivified Second Amendment. Yet thanks to the city’s lack of constitutional personality and the common understanding of the right to keep and bear arms solely about individual rights, scholars have ignored whether the city itself has a constitutional interest in these debates. This blog post has contested both of these propositions and outlines an affirmative vision of the city’s Second Amendment. Asking whether municipal governments can assert the right to keep and bear arms not only adds to the growing debate about the contours of the post-Heller Second Amendment, but also contributes to scholarly debate over the legal status of the contemporary American city.

This joint post by Dave Fagundes & Darrell Miller was adapted from Dave Fagundes & Darrell A H. Miller, The City’s Second Amendment, Cornell Law Review (forthcoming 2020).

[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.]

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.]

“Sanctuary city”, Wikipedia tells us, “refers to municipal jurisdictions, typically in North America, that limit their cooperation with the national government’s effort to enforce immigration law.” This is not an unreasonable definition. The term sanctuary city first came into modern political and legal parlance in the United States in the 1980s when a handful of cities sought to resist federal government efforts to deport asylum seekers fleeing their violence-wracked Central American homes, and then came to be more generally used to describe a range of local refusals to cooperate with the enforcement of federal immigration law with respect to the detention and removal of undocumented aliens. The association of “sanctuary city” with progressive local jurisdictions resisting federal removal of undocumented aliens remains. The top ten hits for “sanctuary city” on Google after Wikipedia all deal with local resistance to federal immigration law enforcement: The first hit after Wikipedia is the sanctuary city webpage run by the Center for Immigration Studies, an anti-sanctuary organization.

Sanctuary city has long been a bit of a misnomer. As the CIS webpage notes there are sanctuary counties (approximately 130) and sanctuary states (eleven), as well as cities, but until recently the association of sanctuary with progressive resistance to federal (and federally-supportive state) policies has been strong. No longer. Starting around 2013, and spreading rapidly from 2018, a host of counties and cities have declared themselves to be “Second Amendment sanctuaries.” By one count there are over 950 Second Amendment sanctuary counties (roughly 25% of all US counties) and nearly 200 Second Amendment sanctuary cities, towns, or townships. Although the meaning of “Second Amendment sanctuary” is even more indeterminate than alien sanctuary – ranging from expressions of opposition to various firearms regulations, to assertions of refusal to enforce by local authorities, to commitments to provide financial support to local resistance – the rapid spread and scope of the movement is impressive.

Nor is the Second Amendment the only new focus for local sanctuary. There are now “sanctuary cities for the unborn”^[1] – at least nine cities and one county in East Texas^[2]  as well as a handful of small communities in Florida,^[3] New Mexico,^[4] Utah,^[5] and perhaps elsewhere in other states — as well as a website for the movement.^[6] As with immigration and firearms, the exact meaning of sanctuary in this context is uncertain – again some combination, inter alia, of declaration of views, prohibition of abortion within the jurisdiction (certainly unconstitutional for now, although none of these jurisdictions have abortion clinics within them) and the purported declaration of Planned Parenthood and other pro-choice groups as “criminal organizations.”

What is the significance of this proliferation of “sanctuary” for local government law? That question can be considered three ways – normatively, operationally, and doctrinally.

Normatively, these new sanctuary movements make clear that there is no normative valence to the local in local-state (or local-federal) disputes. Despite the battles over the new preemption and the origin of the contemporary usage of sanctuary in the effort to protect undocumented immigrants, local is not necessarily progressive. To be sure, one reason the Second Amendment and anti-abortion movements have used “sanctuary” is to troll the left. As the state’s attorney in Effingham County, Illinois, credited with first applying the term in the firearms context explained, “We’re just stealing the language that sanctuary cities use.”^[7]  But the use of the notion of sanctuary in this context – as with immigration – resonates with basic features of local government. Small size (at least relative to higher levels of government), Tieboutian ease of exit, and Tocquevillean voice together lead to the differentiation of local preferences and the ability of local residents to use local politics to articulate those distinct preferences. Home rule enables local governments to turn the expression of local preferences into formal law.

The term “sanctuary” in particular suggests that the people seeking “sanctuary” feel themselves to be a relatively small group, excluded from political power in the larger state or national community, and, indeed, threatened by those higher levels or broader political, cultural, or social trends. With local government-as-sanctuary they can use law to express their challenge to what they perceive as a dominant opposition, and create a formal legal and political space beyond the control of these perceived-as-hostile outside forces.

This sense of small local unit as haven in a hostile world resonates with a prominent earlier use of “sanctuary” in local government law — Justice Douglas’s validation of traditional-family residential zoning in Village of Belle Terre v. Boraas.^[8]  The Supreme Court determined that the Village could use the police power to “lay out zones where family values, youth values” could flourish and so be “a sanctuary for people” – an escape from the surrounding area, just as Second Amendment sanctuaries and unborn city sanctuaries seek to escape from higher level regulations. But as with Belle Terre’s restrictive zoning there is nothing particularly progressive about that.

Operationally, the sanctuary movements underscore how much the implementation of higher level public policies requires the active support of local officials. Firearms background checks and limits on the purchase of guns or gun accessories won’t be enforced unless local officials are willing to do the enforcing; undocumented aliens in local custody won’t be detained unless local officers are willing to detain and the citizenship status of people interacting with local government – the frontlines of government as the COVID-19 crisis underscores – won’t be determined unless local employees ask. Even when, as in the firearms context – which currently involves a primarily state-local conflict – the higher level government has the legal authority to order – or, “commandeer” – the lower level to carry out its bidding and follow its orders, not much will happen unless the higher level government is willing to actually force the issue and punish or remove recalcitrant local officials. Some states supportive of the enforcement of federal immigration law have begun to move in that direction, at least with punitive measures that provide for the removal of local officials or the imposition of financial penalties on local officials or local governments.

Doctrinally, the sanctuary movement has so far only been tested in the immigrant context where – perhaps paradoxically — it has served to underscore the hierarchical superiority of the states. The Fifth Circuit upheld Texas’s law preempting local immigration sanctuary measures, with the exception of the portion of the law that sought to punish pro-sanctuary speech of local elected officials and so was held to fall afoul of the First Amendment. And, from the opposite direction, California as a sanctuary state recently prevailed against a claim by more conservative localities that the California Values Act (CVA), which restricts the ability of local law enforcement agencies to inquire into immigration status, place individuals on an immigration hold, and use personnel or resources to participate in certain immigration enforcement activities, infringes on the authority of charter cities under the state constitution to create, regulate, and govern their police forces. The California constitution is the among the most locally-protective in the country for charter cities but a state appellate court sustained the application of the CVA to charter cities on the theory, set out in the legislature’s findings, that it advances the statewide interests in public safety, public health, the treatment and welfare of immigrants, and the protection of constitutional rights. The court reasoned that uniform application of the CVA throughout the state was necessary to ensure it achieves its statewide concerns. The court also found that the law was narrowly tailored and intruded on municipal control of the police only to the extent necessary to achieve its goals.^[9]

As far as I know, states have not passed measures attempting to preempt local Second Amendment sanctuary ordinances, nor have those laws otherwise been challenged. As a matter of general home rule analysis, a state law displacing such an ordinance ought to prevail. The one uncertainty is the murky nature of current Second Amendment doctrine, which could allow firearms sanctuary localities to argue that the state laws they are resisting violate the federal constitution. It is unclear whether they would have standing to assert the Second Amendment claim, either because under Hunter v. City of Pittsburgh and its progeny local governments generally cannot assert federal constitutional claims against their states or whether, even under a narrower reading of Hunter they would be able to assert Second Amendment rights of their own.

The very uncertain legal basis for the local defense of sanctuary measures against state displacement underscores just how much they represent an expression of local political values and an assertion of the operational importance of local governments to the implementation of higher level policies. As such they are a perfect exemplar of the place of local government in our system: formally legally weak, but politically and operationally significant. Local governments may not often prevail in head-to-head conflicts with their states but their actions matter, both for their residents and for their engagement with broader legal, political, and cultural debates.

[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.]

On the day I began writing this post, the Governor of Virginia signed into law a number of state-wide gun control measures passed by a newly Democratic General Assembly. For decades, that body had been dominated by Republicans, who had resisted strengthening gun regulations despite recent mass shootings and the shocking images of white supremacists and armed militias toting assault rifles in Charlottesville during the August 2017 “Unite the Right” rally. In 2019, Democrats ran on a platform of “commonsense” gun laws and voters expected them to deliver, which they did, at least in part. Some proposals—like an assault weapons ban—did not clear the General Assembly.

What is notable, though not necessarily surprising, is that as the newly constituted General Assembly began considering gun control measures, pro-gun-rights groups ran a concerted opposition campaign grounded in a robust localism that they had never embraced under the previous state administration. Suddenly Second Amendment sanctuaries appeared across the state, with local city councils and boards of supervisors adopting declarations that affirmed their support for Second Amendment rights, and that further called for local resistance to state mandates. There was a certain irony in these calls for state forbearance. As many Democratic legislators pointed out, under a Republican General Assembly, the state had preempted almost all local gun regulations, including the ability for cities to regulate guns in public places and during demonstrations—a feature of state law preemption that led to the dramatic and frightening scenes in Charlottesville. Localism only became attractive once gun-rights advocates had lost power in Richmond.

The Second Amendment sanctuaries movement borrows from the language and rhetoric of the immigrants’ rights movement. Insofar as the enforcement of state and federal law often depends on the cooperation of local officials, the movement also deploys some of the same strategies: passive non-cooperation, indirect resistance, and rhetorical disobedience. It has been and should continue to be noted that local governments have a constitutional basis for resisting federal commands in the immigration context. Federal officials may not commandeer local officials to enforce federal immigration law. By contrast, local officials do not have a similar constitutional basis for resisting state commands in the gun control context, even if there is some contested space in the interstices of state constitutional law for forms of local resistance, as Shawn Fields has described.

One also should be careful to delineate appropriate distinctions between (1) local control or home rule, (2) local recalcitrance, and (3) interposition and nullification.

As to the first, I am a proponent of city power and have played a role in drafting the new National League of Cities’ “Principles of Home Rule for the Twenty-First Century.” Those principles are intended to reset the balance between state and local power, which has tilted dangerously toward state centralization. Progressive Era advocates had thought home rule reforms would protect cities from avaricious state legislatures, but in the twenty-first century, we’ve seen states aggressively undermining local prerogatives across many areas of policymaking. The NLC principles reflect a commitment to a robust local democracy in which cities have more room to decide for themselves how to pursue the ends of government. This form of home rule might point toward “firearms localism” as a way out of the political morass that is gun regulation in the United States. I leave it to others to pursue that avenue. But I am certainly willing to put up with some local policies that I dislike so long as there is the option to have my preferred policies adopted somewhere else. In Virginia, for example, many cities would have adopted more aggressive gun control regulations if the previous Republican-dominated General Assembly had allowed it. Home rule can provide space for disparate regulation, though it is of limited use unless there is a relatively stable political settlement among competing factions to respect constitutional limits. To be fair, such a political equilibrium is often difficult to achieve or sustain.

Local recalcitrance or local work arounds are different than home rule. The councilpersons, supervisors, and sheriffs who have embraced Second Amendment sanctuaries are not advocating for home rule. They think that Second Amendment rights are invariable and inviolable; they want to carry their assault weapons in Richmond just as they do in Wise. This is a problem with rights claims; they are absolute and do not provide a lot of room for a local option.

Of course, there is power in the local community and in local government specifically. That power can be exercised in the form of discretionary policing or other forms of local under-enforcement. It is not a drawback of a vertically fragmented government system that the center often needs the cooperation of the periphery to get its work done. That cooperation can be more or less forthcoming, as is evidenced by the battles being fought every day between the Trump administration and states and localities across the country.

These more recent conflicts represent more than “uncooperative federalism,” however. What has emerged instead is something that could be called “punitive federalism”—a regime in which the periphery disagrees with or attempts to work around the center and the center seeks to punish those who do so, not just rein them in. State preemptive laws that punish local officials by removing them from office or by withdrawing state funds are similarly a form of punitive or vindictive preemption. In the nineteenth century, states would pass “ripper bills” that simply replaced or eliminated local officials; Progressive Era home rule reforms were a response to that form of state abuse.

“Punitive federalism” is a problem, for while some conflict between levels of government might be salutary, too much conflict can be pathological, especially when accompanied by the kind of constitutional “hard-ball” we are seeing throughout the U.S. political system. And here I want to note an important difference between disagreement or passive non-cooperation and interposition and nullification. Especially in Virginia, we should be wary of language that smacks of Massive Resistance. Gun rights advocates oftentimes seem to be standing in the school-house door. We should not paint that form of opposition with the brush of legitimacy.

And that makes me very nervous about taking seriously the claims of organizations like the Virginia Citizens Defense League or the Gun Owners of America—or the sheriffs and city councils that are parroting their claims. It further makes me wary of domesticating those claims by treating them seriously within a legal and institutional framework that is supposed to resolve disputes through law.

Those groups are not law abiding. They seem to believe, for instance, that citizens and local officials have a duty to disobey unconstitutional laws and that a duly enacted law of the state that they conclude contravenes the Second Amendment is no law at all. They reject the so-called “Doctrine of Judicial Supremacy,” which they claim is “contrary to the most basic principles which underlay our form of government, is anti-Biblical, and is profoundly abusive of the pre-existing and inalienable rights of the people of Virginia.” Indeed, these groups explicitly assert that the doctrine of interposition is alive and well in Virginia. Invoking “[t]he Doctrine of the Lesser Magistrate,” they have asserted that “[w]hen a higher government overreaches it is the duty of the lesser governments to interpose themselves.” Quoting Madison, they argue that “[t]he act of the lesser or lower authority is deemed an act of ‘interposition’ . . . “.

These kinds of claims reveal the increasingly frightening confluence of gun rights advocacy, Christian nationalism, and—to be frank—white supremacy. An advocacy group that does not recognize or does not acknowledge the rhetorical links between interposition, the Civil War, and Massive Resistance is playing a dangerous game, one that barely conceals its discredited provenance. One should be very careful about crediting those kinds of claims or treating them as simply another form of healthy or disputatious localism. It is not.

Living in Charlottesville, I have seen the danger of lending credence to faux constitutional claims by treating violent actors as if they were sincere in their respect for law. This is not civil disobedience. These local sheriffs are armed and clothed with public authority. Localism or federalism might be an institutional solution to intractable policy differences—a solution to the conflict between urban and rural, for instance. But a different and more forceful response not grounded in abstract invocations of devolution is required when gun rights are cloaked in the rhetoric of God’s law and are accompanied by marching militias and sheriffs who explicitly declaim any adherence to the rule of law.

[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.]