Second Amendment

“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.

Announcing a New Interview Series on Covid & Guns

As we’ve previously talked about on this blog, the coronavirus pandemic has raised several questions about firearms law and the Second Amendment (see here, here, here, and here). To broaden the perspective about these unique circumstances, we’re launching a video series on Covid & Guns. In this special series, we interview experts in different fields to get their views on these issues, including questions about increasing gun sales, the potential for exacerbated gun harms, the possibility of additional benefits to ownership, and more.

We plan to post 1-2 of these videos each week for the next several weeks. They will be available on the Center’s YouTube page, as well as on the Center’s website. And we’ll also be tweeting out clips from our Twitter account (@DukeFirearmsLaw). We hope you’ll follow along!

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.

SCOTUS Gun Watch – Week of 5/4/20

The Court considered the ten pending Second Amendment cases at its conference last Friday, but we did not get any more clarity this morning when it released the orders from that conference. It did not act on any of the pending petitions, instead holding them over to consider at another conference. We’ve also got one more to add to the ready-for-conference list: Beers v. Barr, challenging the mental illness firearm prohibitor, is scheduled for the May 15 conference.

Colloquium on Localism, Popular Constitutionalism, Preemption, and Firearms

At the end of April, the Center for Firearms Law was delighted to host a colloquium on the topic of Localism, Popular Constitutionalism, Preemption, and Firearms.   Veterans of state and local government law and constitutional law,  as well as new voices, all convened (via Zoom) for a wide-ranging discussion on the intersections between local regulation, preemption, immigration, pandemic response, and firearms.

The participants were Joseph Blocher (Duke), Richard Briffault (Columbia), Jake Charles (Duke), Katherine Mims Crocker (William & Mary), Dave Fagundes (Houston), Shawn Fields (Campbell), Pratheepan Gulasekaram (Santa Clara), Alli Orr Larsen (William & Mary), Darrell Miller (Duke), Rich Schragger (UVA), Ken Stahl  (Chapman), Rick Su (UNC), and Sarah Swan (FSU).

We had initially planned for the colloquium to be in person and hosted at Duke, but the coronavirus intervened, and we instead conducted the event entirely online.   Aside from the inability to grab a meal and a drink together, we were pleased with the results.   The papers were engaging, and the discussion insightful and timely.

Of particular interest was the issue of Second Amendment sanctuaries and how they correspond (or fail to correspond) to the law and politics surrounding immigration sanctuaries.   It was especially rewarding to have persons with deep interest and experience in other areas of law connect their knowledge to the developing field of firearms law.

This week we’ll be publishing blog posts by many of the scholars who participated in the colloquium.

The Futility of Originalist Analysis in Second Amendment Cases

In his dissent to the Supreme Court’s dismissal of New York State Rifle & Pistol Association v. City of New York on grounds of mootness, Justice Alito wrote the following about the merits of the case: “neither the City, the courts below, nor any of the many amici supporting the City have shown that municipalities during the founding era prevented gun owners from taking their guns outside city limits for practice.” After arguing that the plaintiffs should have won on originalist grounds, Alito then discussed the city’s justifications for its law (now repealed) finding that those purposes were constitutionally insufficient. In this post, I want to focus on Alito’s originalist comments.

The Narrowness of the Supreme Court’s Decision in NYSRPA

New York State Rifle & Pistol Association Inc. v. City of New York, the first Second Amendment case to receive a Supreme Court hearing in a decade, was supposed to be the Second Amendment decision of this generation.

In the briefing in that case (of which I participated as amicus on behalf of neither party) all the hopes and fears of ten years of waiting appear on full display. What methodological tools should courts use to decide a Second Amendment case? Should they use the two-part framework adopted by all the circuits, with historical/categorical reasoning in step one, and tailoring through strict or intermediate scrutiny in step two? Or should they abandon this framework as illegitimate “balancing” and apply something perhaps more originalist: a test focused solely on the text, history and tradition of the Second Amendment? Is the Second Amendment confined to the home – as some readings of District of Columbia v. Heller would suggest – or does the right extend to bearing firearms for personal protection outside of the home as well?

McGinnis and the Dubitante Opinion

Last week Jake highlighted this Fifth Circuit opinion, United States v. McGinnis, in which Eric McGinnis raised a Second Amendment defense to his conviction under 18 U.S.C. § 922(g)(8) for possession of a firearm while subject to a domestic violence protective order.  Judge Stuart Kyle Duncan applied the two-part framework for Second Amendment challenges that has been adopted by nearly all circuits (including the Fifth Circuit) and upheld McGinnis’s conviction.

SCOTUS Gun Watch – Week of 4/27/20

The big news this week is that we have the Supreme Court’s opinion in NYSRPA. Check out our quick reactions on the decision and stay tuned for more analysis. In the meantime, the cases the Supreme Court was holding for NYSRPA have now all been distributed for this Friday’s conference. We may know by next week this time what the next major Second Amendment issue before the Court will be. (Mance, the oldest case sitting around, gets a new hearing just over one year since its last.)

Quick Reactions to the NYSRPA Opinion

This morning, the Supreme Court handed down its decision in New York State Rifle & Pistol Association v. City of New York. The case concerned a New York City rule that forbid individuals with a premises license from transporting their firearms to shooting ranges and second homes outside the City. The City repealed the rule after the Supreme Court granted review, and the state also passed a law preempting the prior rule. Those actions, a majority of the Court said today, made the case moot. (We’ve covered the case extensively on the blog – see here, here, here, here, here, here, here, here, and here.)

In a per curiam opinion, the Court vacated the decision below and remanded to the Second Circuit, noting that the circuit or district court may consider whether the challengers can add a claim for damages arising from the old rule or assert claims against the new rule. Justice Kavanaugh concurred with the majority, but also wrote separately to state that he shared with the dissent “concern that some federal and state courts may not be properly applying Heller and McDonald.” He added that, “[t]he Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.” In dissent, Justice Alito, joined by Justices Thomas (in large part) and Gorsuch, concluded that the case was not moot and that the rule violated the Second Amendment. We’ll have more analysis on the opinions in the coming weeks, but here are four initial takeaways:

(1) NYSRPA is not the next big Second Amendment case. As we expected after the developments last summer, a majority of the Court found the case moot. That holding, not the Second Amendment, was the dissent’s primary focus as well. The next big Second Amendment case may be coming, but NYSRPA definitely isn’t it.

(2) Even the dissenting justices viewed the Second Amendment issues narrowly. This was not—as the challengers and some amici tried to cast it—a broad case about the right to “bear” arms in public, but one about the rights incidental to “keep” them. As Justice Alito said in dissent, “[w]e deal here with the same core Second Amendment right [as in Heller], the right to keep a handgun in the home for self-defense.” (Emphasis added). The right the challengers were claiming was not a right to bear arms outside the home for self-defense, but “a necessary concomitant” of the keep-right, which was “the right to take a gun outside the home for certain purposes.”

(3) At least four justices are dissatisfied with some lower courts’ implementation of Heller. The dissenters bemoaned the lower courts’ use of heightened scrutiny in this case and suggested that such lax review infected more than just this one instance.

(4) The big question is what’s next. It seems clear that there are four votes for another cert grant, which theoretically could come very soon. We’ve been keeping an eye on pending petitions here: SCOTUS Gun Watch. Assault weapons prohibitions, public carry licenses, and interstate sales are among the possible topics for imminent Supreme Court review.

We’ll have more reactions and analysis going forward, but for now the wait continues for another major Second Amendment case.