Second Amendment Sanctuary Counties

Second Amendment sanctuary counties”—counties that refuse to enforce state regulation of firearms—represent the latest skirmish in the seemingly interminable debates over gun policy in America;  debates that, more often than not, break along geographical, cultural, and political lines:  urban versus rural; blue versus red.

Colorado recently joined over a dozen other states in passing legislation that allows law enforcement to temporarily remove firearms from an individual if a court finds the individual poses a threat to himself or to others.   These Emergency Risk Protection Orders (“ERPOs”) (sometimes called “red flag” laws) appear to be effective in reducing suicides, and have gained popularity in state legislatures since the mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida in 2018.   While most gun issues are divisive, ERPOs would seem to generate a modicum of agreement—they are temporary, they involve layers of procedural protections, and in most cases they are initiated by the real fears of family members or law enforcement.   Even the National Rifle Association has endorsed some kind of temporary risk-based sequestration of firearms, at least in principle.

Notwithstanding, officials in almost half of Colorado’s sixty four counties object to Colorado’s ERPO procedure, and have vowed not to enforce it.    These counties, mostly Republican, mostly (but not exclusively) rural, have deemed themselves Second Amendment sanctuary counties, and have adopted some of the rhetoric (and terminology) of “sanctuary cities”—cities that refuse to cooperate in federal immigration enforcement.

And, like sanctuary cities, these counties use a constitutional vernacular to frame their protests.   The chair of the Weld County, Colorado commission stated that their opposition to ERPOs “isn’t an issue of safety as much as it is an issue of protecting the constitutional rights of citizens.”  Their protest has become national: Second Amendment sanctuary counties have sprung up in Oregon, Illinois, and New Mexico in the last several months.

What can we draw from these local efforts to thwart a state-wide policy regarding high-risk individuals and firearms?   First, we should understand that, thus far, no federal or state court has held that an ERPO procedure is unconstitutional.   So, even though county officials frequently cite the Constitution, they are not simply following court-issued constitutional decisions.  Instead, they may be engaging in what Bruce Ackerman referred to as “constitutional politics”—the effort to mobilize citizens in an act of constitution-making outside of the courts.

Second, for advocates of localism—the idea that local officials have the power, perhaps even the right, to govern in their community’s best interests, irrespective of state policy—sanctuary cities (for immigrants) and sanctuary counties (for gun owners) are a test of conviction.  The general rule is that, absent home rule authority, local governments are merely arms of the state, to be created, dissolved, or governed at the will of the state legislature.   Localists chafe at this arrangement.   But if the principle is that, within the bounds of constitutional limitation, local government autonomy is desirable in and of itself, then one must defend local government autonomy even when one disagrees with the resulting policy.

Finally, the phenomenon of Second Amendment sanctuary counties highlights the asymmetry of gun policymaking in the United States.   After Heller, most of the litigation and liability incentives err on the side of non-enforcement.   Colorado shields officers from liability for their good faith decision not to investigate, report, or file an application for an ERPO.  (Whether this language is broad enough to insulate an officer who refuses to enforce a duly-issued court order remains to be seen).  And there’s no general federal due process right to have restraining orders enforced by local government.   By contrast, all the liability risks (not to mention the physical risks) are on the side of enforcement.   A law officer who enforces an ERPO exposes himself to Second Amendment litigation, state constitutional litigation, and (at least according to one Second Amendment sanctuary county) civil liability under local law.

Given that the liability risk for erroneous non-enforcement of an ERPO is minimal, and the liability risk for erroneous enforcement is potentially high, it stands to reason that there could be a kind of silent Second Amendment sanctuary system already in place.