Scholarship Highlight: Sanctuary Jurisdictions

Shawn Fields has posted an original and through-provoking new paper on Second Amendment Sanctuaries that will be published in the Northwestern Law Review later this year. From the abstract:

The term “sanctuary” has long expressed a sympathy for immigrants’ rights and resistance to federal immigration enforcement. Recently, the word has become associated with another divisive political topic, as local governments have begun declaring themselves “Second Amendment Sanctuaries” in defiance of statewide gun control measures they deem unconstitutional. This gun rights resistance movement not only flips the political script on the nature of sanctuaries but presents important and challenging questions about local-state power sharing, the proper scope of “subfederal commandeering,” and the role of coordinate branches in constitutional decision making.

This Article provides the first scholarly treatment of Second Amendment Sanctuaries. In doing so, it explores both the unique facets of this new localism and the broader implications for sanctuary movements generally. Most early commentary on Second Amendment Sanctuaries dismisses them as purely symbolic and presumptively invalid pursuant to state preemption principles and the judicial supremacy model of constitutional interpretation. This Article challenges that narrative and articulates a theory of limited viability for these and other local intrastate resistance movements.

The theory proceeds in three parts, with each part presenting a novel approach to local-state governmental conflict that contributes to the existing literature. First, localities can resist broad state preemption in limited circumstances via the state’s “home rule” provisions when local regulation of a particular issue is rooted in history and has normative policy appeal. Second, localities may passively resist statewide regulation through a form of “subfederal anticommandeering” analogous to the Tenth Amendment’s anticommandeering principles protecting states from federal overreach, so long as the locality takes no affirmative steps to frustrate state enforcement. Third, local enforcement officers may defend their resistance on substantive constitutional grounds when the right at issue is not settled firmly by the judiciary. This “first impression departmentalism” reflects the proper role all coordinate branches of government have in defining the contours of constitutional provisions when emerging doctrine remains in a state of flux. These principles counsel in favor of the viability of at least some Second Amendment Sanctuaries as currently constructed, as well as sanctuaries resisting firearm deregulation and other statewide policy initiatives.

The Federal Prohibitor and Unlawful Drug Users

I’m reading a draft of a fantastic forthcoming article by Dru Stevenson on the how federal drug law operates as what he calls one of the primary forms of gun control today. Under federal law anyone “who is an unlawful user of or addicted to any controlled substance” is forbidden from possessing firearms. So those active users are barred, whether they have any conviction or not. And, of course, the felon prohibitor in 18 U.S.C. § 922(g)(1) bars anyone who has ever had a felony drug conviction from ever again possessing firearms. We are fortunate that Dru will be blogging on his own article, but in this short post, I wanted to just highlight a few things that stood out to me from his article and the broader debate over guns and drugs (also the name of a great article by Benjamin Levin).

SCOTUS Gun Watch – Week of 2/10/20

The Court is still on winter recess and no new petitions have been filed, so we’re waiting still. Here’s where things stand:

Case Ct. Below Pet. Filed Implicated Law/Issue Status
Mance v. Barr  5th Cir. 19-Nov-18 Federal ban on out-of-state handgun purchases distributed

12-Apr-19 conf.

Rogers v. Grewal  3rd Cir. 20-Dec-18 NJ “may issue” public carry regime distributed

23-May-19 conf.

Pena v. Horan  9th Cir. 28-Dec-18 California’s Unsafe Handgun Act (microstamping, etc.) distributed

12-Apr-19 conf.

Gould v. Lipson  1st Cir. 1-Apr-19 MA “may issue” public carry regime (as implemented locally) distributed

6-June-19 conf.

Cheeseman v. Polillo N.J. 28-June-19 NJ “may issue” public carry regime distributed

18-Oct-19 conf.

Ciolek v. New Jersey N.J. 18-July-19 NJ “may issue” public carry regime distributed

1-Oct-19 conf.

Daniel v. Armslist Wisc. 29-July-19 Scope of immunity for gun-broker website under Communications Decency Act Cert Denied
Remington Arms v. Soto Conn. 1-Aug-19 Scope of  gunmaker immunity under the Protection for Lawful Commerce in Arms Act Cert Denied
Guedes v. ATF D.C. Cir. 29-Aug-19 Ban on bump stocks distributed

24-Jan-20 conf. (relisted for 3rd conference)

Medina v. Barr D.C. Cir. 30-Aug-19 Ban on felon possession under 922(g)(1) (as applied) Cert Denied
Worman v. Healey 1st Cir. 23-Sep-19 Ban on assault weapons and high-capacity magazines distributed

10-Jan-20 conf.

Malpasso v. Pallozzi 4th Cir. 26-Sep-19 MD “may issue” public carry regime distributed

24-Jan-20 conf.

Pennsylvania v. Hicks Penn. 27-Sep-19 How a firearm can factor into reasonable suspicion under the Fourth Amendment Cert Denied
Culp v. Raoul 7th Cir. 10-Oct-19 IL refusal to grant carry permits to most non-residents distributed for

21-Feb-20 conf.

Matsura v. United States 9th Cir. 25-Oct-19 Unlawful possession of a firearm by a prohibited person distributed for

21-Feb-20 conf.

Baker v. City of Trenton, MI 6th Cir. 26-Nov-19 Reasonableness of warrantless search in light of the Second Amendment distributed for

21-Feb-20 conf.

Wilson v. Cook County, IL 7th Circ. 27-Nov-19 Assault weapons and high-capacity magazine ban reply due @

17-Feb-20

Beers v. Barr 3rd Cir. 9-Jan-20 Unlawful possession of a firearm by a prohibited person (involuntarily committed) resp. due 11-Mar-20

Laws with an Ugly Past

A few weeks ago, the Supreme Court heard arguments in Espinoza v. Montana Dep’t of Revenue, which concerns the use of public funds for religious schools. Part of the issue in that case is what to make of Montana’s Blaine Amendment, a type of state constitutional provision that prohibits appropriating funds to religious sects or institutions. Although innocuous enough on their face, Blaine Amendments have a sordid history in virulent anti-immigrant and anti-Catholic bigotry. They raise the question about the relevance of legislative purpose to the constitutionality of governmental decrees. A similar issue often arises when talking about laws regulating guns. Just what role does an ugly past play in the constitutional calculus?

Scholarship Highlight: Cottrol & Diamond on Public Safety and the Second Amendment

Robert Cottrol and Ray Diamond have posted on SSRN a new piece on Public Safety and the Right to Bear Arms. In the piece, Cottrol and Diamond provide a detailed and thorough examination of the debates and historical understanding that influenced codification of the Second Amendment and its interpretation in the ensuing years, decades, and centuries.

SCOTUS Gun Watch – Week of 2/3/20

The Supreme Court is on winter recess for the next few weeks, so unless we have new petitions filed, I expect some (more) quiet in the near future. The next scheduled orders & opinions will not come out until Monday, February 24, with a possibility for some orders after the Court’s Friday, February 21 conference.

In the meantime, the Center is hosting a panel discussion tomorrow, February 4, on The Supreme Court’s Gun Docket with two local experts: Professors April Dawson from N.C. Central School of Law and Greg Wallace from Campbell Law School. We’re excited have them at Duke and will post the panel video on our site once we have it.

Litigation Highlight: Holloway & As-Applied Challenges

A new Third Circuit case, Holloway v. Attorney General, sheds more light on how that circuit will consider as-applied challenges to the federal felon prohibitor—18 U.S.C. § 922(g)(1). Consistent with its fractured opinion in Binderup v. Attorney General, the Holloway court reaffirmed that seriousness, not violence, is the proper measure for whether an otherwise disqualifying conviction can constitutionally be applied to permanently extinguish Second Amendment rights. Courts in the Third Circuit naturally (as one of the few circuits to have vindicated an as-applied challenge) have an active docket of as-applied challenges and Holloway will serve as additional guidance for courts confronted with these challenges.

SCOTUS Gun Watch – Week of 1/27/20

The Supreme Court has been quiet as we await NYSRPA. No action on the cases it heard last Friday at conference.

Case Ct. Below Pet. Filed Implicated Law/Issue Status
Mance v. Barr  5th Cir. 19-Nov-18 Federal ban on out-of-state handgun purchases distributed

12-Apr-19 conf.

Rogers v. Grewal  3rd Cir. 20-Dec-18 NJ “may issue” public carry regime distributed

23-May-19 conf.

Pena v. Horan  9th Cir. 28-Dec-18 California’s Unsafe Handgun Act (microstamping, etc.) distributed

12-Apr-19 conf.

Gould v. Lipson  1st Cir. 1-Apr-19 MA “may issue” public carry regime (as implemented locally) distributed

6-June-19 conf.

Cheeseman v. Polillo N.J. 28-June-19 NJ “may issue” public carry regime distributed

18-Oct-19 conf.

Ciolek v. New Jersey N.J. 18-July-19 NJ “may issue” public carry regime distributed

1-Oct-19 conf.

Daniel v. Armslist Wisc. 29-July-19 Scope of immunity for gun-broker website under Communications Decency Act Cert Denied
Remington Arms v. Soto Conn. 1-Aug-19 Scope of  gunmaker immunity under the Protection for Lawful Commerce in Arms Act Cert Denied
Guedes v. ATF D.C. Cir. 29-Aug-19 Ban on bump stocks distributed

24-Jan-20 conf. (relisted for 3rd conference)

Medina v. Barr D.C. Cir. 30-Aug-19 Ban on felon possession under 922(g)(1) (as applied) Cert Denied
Worman v. Healey 1st Cir. 23-Sep-19 Ban on assault weapons and high-capacity magazines distributed

10-Jan-20 conf.

Malpasso v. Pallozzi 4th Cir. 26-Sep-19 MD “may issue” public carry regime distributed

24-Jan-20 conf.

Pennsylvania v. Hicks Penn. 27-Sep-19 How a firearm can factor into reasonable suspicion under the Fourth Amendment Cert Denied
Culp v. Raoul 7th Cir. 10-Oct-19 IL refusal to grant carry permits to most non-residents to be conf.

 

Matsura v. United States 9th Cir. 25-Oct-19 Unlawful possession of a firearm by a prohibited person distributed for

21-Feb-20 conf.

Baker v. City of Trenton, MI 6th Cir. 26-Nov-19 Reasonableness of warrantless search in light of the Second Amendment distributed for

21-Feb-20 conf.

Wilson v. Cook County, IL 7th Circ. 27-Nov-19 Assault weapons and high-capacity magazine ban resp. due 3-Feb-20
Beers v. Barr 3rd Cir. 9-Jan-20 Unlawful possession of a firearm by a prohibited person (involuntarily committed) resp. due 10-Feb-20