Sanctuary Movement

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.

“Sanctuary” and Local Government Law

“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.

Second Amendment Sanctuaries and the Difference Between Home Rule, Local Recalcitrance, and Interposition

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.