Month: May 2020

Launching New Scholarship Interview Series

In addition our recently launched video series on Covid & Guns, the Center is launching this week a new interview series on Second Amendment and firearms law scholarship. We will profile new and forthcoming articles that highlight interesting, complex, or novel issues in the field.

In the first episode, Joseph talks to Eric Ruben, Assistant Professor of Law at SMU Dedman School of Law, about his recent article An Unstable Core: Self-Defense and the Second Amendment, 108 Cal. L. Rev. 63 (2020).

Check out the interview below:

SCOTUS Gun Watch – Week of 5/18/20

Of the 11 Second Amendment cases the Court discussed at conference last Friday, it took action in only 1. The Court GVR’d Beers v. Barr, meaning that it sent the case back to the lower court to dismiss as moot because the challenger in that case—who had been prohibited from possessing firearms under 18 U.S.C. § 922(g)(4) based of a prior involuntary mental health commitment—had since had his rights restored under state law and was thus no longer prohibited. Along with NYSRPA that’s two mootness dismissals on Second Amendment cases in just a month. (The Trump Administration’s actions through ATF were the prime contributor to this case becoming moot, so it may not be explainable in quite the same terms as the NYSRPA mootness issue.)

Beers was the only prohibited person case pending before the Court, so we won’t get any answers on that question (which is one of the few issues that has split the circuits) in the immediate future. The Court has now relisted the remaining 10 cases for conference this Thursday, 5/21. The next order list, where we’ll find out if the Court has decided to hear a new case, is scheduled to come out on Tuesday, 5/26 (because Monday is a holiday).

Second Amendment Sanctuaries

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.]

Local Immigration Non-enforcement and Local Gun Deregulation

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

Do Local Governments Have Second Amendment Rights?

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?

The Two Sides of Sanctuary

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.

SCOTUS Gun Watch – Week of 5/11/20

The Court has now distributed the outstanding gun cases for its May 15 conference. That means we have 11 Second Amendment cases being discussed this Friday. We could hear next Monday morning, when the Court releases its order list, if the justices are inclined to take up one or more of these cases. There’s no date by which they need to decide, however, so it’s possible that they relist these cases to be discussed again at later conferences. It’s a waiting game now.

Contagion and Partisan Federalism

The COVID-19 pandemic has been a proving ground for federalism, or at least for takes about federalism.  Mayors shut down beaches and then are overruled by governors.  Governors request vital medical supplies from the federal stockpile but the President refuses, saying that states have primary responsibility for the crisis and the federal government is a “backup” – then a week later says that his authority as President is “total” and he can unilaterally order the economy to reopen.  Meanwhile, governors in the northeast and the west are discussing (arguably unconstitutional) multi-state pacts to coordinate a strategy for reopening.  What can we conclude about federalism during this unprecedented crisis?  Does the devolution of power enable cities and states to act decisively, or do we need more centralization so the executive can fashion a uniform response?  Is the diffusion of power a check on Presidential malfeasance and incompetence or a recipe for chaos?

Targeting Community Character

A municipality’s community character is often now defined, at least in part, by its relationship to the Second Amendment. Some localities, like the newly self-labelled “Second Amendment Sanctuaries,” define themselves by their intense attraction to firearms and devotion to an unconstrained Second Amendment. Other localities, like large and liberal New York City or Chicago for example, head in the other cultural direction, adopting numerous gun control measures and preferring a more cabined version of gun rights to define their cultural identity.

When this latter type of locality is called to defend the constitutionality of a gun control measure, courts continually struggle with the following question: does it matter that whatever is being limited can be easily accessed beyond a locality’s borders? So, for instance, can one locality prohibit firing ranges, as long as an adjoining jurisdiction has plenty of them readily accessible?