Today, I talked with an NBC News reporter about efforts to pass Second Amendment resolutions and ordinances in counties and towns. Unfortunately for gun rights activists, none of them being reported on do what most supporters or pundits have been telling you they do.
Almost all coverage I’ve found on the effort – whether through blogs or mainstream media – has claimed resolutions recently passed in some Illinois localities create gun “sanctuary” counties.
USA Today, SHTFplan.com, Associated Press, CNN, Fox News, BearingArms and many others have all referred to these efforts as a gun “sanctuary” resolutions. They’re telling people that the resolutions passed are similar in practice and strategy as immigration sanctuary cities. Bryan Kibler, the top prosecutor of Effingham County Illinois, told Fox News that the resolutions passed “aren’t much different from cities such as Chicago which refused to cooperate with federal immigration authorities.”
But he’s wrong.
They’re quite different. In fact, they’re not even close.
As the NBC reporter was doing research for his story, he was told that the effort originated in Oregon back in 2013. Then someone told him that the “Tenth Amendment Center (TAC) was a source of help in the effort” there, and was focused on passing Second Amendment Preservation ordinances. Since this didn’t come across to me as true, I decided to call him to chat about it.
I first wanted to make clear that TAC was not involved in the Oregon effort, and we’re not involved in the Illinois effort either. I suggested that the person in Oregon may have been trying to say that they were inspired by our work, or motivated to model their effort after our recommended local Second Amendment Preservation ordinance model legislation.
However, the measures being passed in both Oregon and Illinois are far different than what we’ve urged localities to pass. The difference may appear to be technical, but it’s actually quite significant.
DIRECTIVE vs. STATEMENT
Our model ordinance here at TAC declares all federal gun laws unconstitutional:
All federal acts, laws, orders, rules or regulations regarding firearms, firearms accessories, and ammunition are a violation of the Second Amendment
Based on this declaration, it bans the locality from helping enforce of effectuate any such violations:
No agent, employee, or official of the (COUNTY CITY TOWN), or any corporation providing services to the (COUNTY CITY TOWN) shall provide material support or participate in any way with the implementation of federal acts, orders, rules, laws or regulations in violation of the Second Amendment to the United States Constitution.
In short, passage of this ordinance immediately changes how local resources are used and bans all government agencies, including police, from participating in enforcement of any federal gun control measures. It’s a directive to law enforcement, not a statement of principles or a request.
On the other hand, the so-called gun rights “sanctuary” resolution passed in Effingham County includes no immediate directive for law enforcement to start or stop doing anything, whatsoever.
Instead, the resolution issued two “demands.”
First, to the Illinois General Assembly to:
cease further actions restricting the Right of the People to keep and bear arms
Second, to the Governor to:
veto all such legislation which restricts the Right of the People to keep and bear arms.
After the demands comes an attempt at a directive, but it includes a caveat so big it renders the resolution ineffective in practice:
if the Government of the State of Illinois shall infringe upon the inalienable rights granted by the Second Amendment, Effingham County shall become a “sanctuary county” for all firearms unconstitutionally prohibited by the government of the State of Illinois, in that, Effingham County will prohibit its employees from enforcing the unconstitutional actions of the state government. [Emphasis added]
Notice that the resolution doesn’t define what is “unconstitutionally prohibited” or what constitutes an “unconstitutional action.” Somebody would have to make that determination before the county could take any action.
In short, the Effingham resolution doesn’t address federal gun laws in any way, and is waiting for a determination of unconstitutionality before ending enforcement of state laws that “unconstitutionally prohibit” firearms.
Kibler admitted to USA Today that the action “is largely symbolic,” and Sheriff Dave Mahon told the Effingham Daily News that passage would not dictate how his office enforces the law. In other words, it has no practical effect at all.
Similar resolutions have passed in a handful of other Illinois counties, none with any significant differences.
Comparing these to immigration sanctuary cities might be an even bigger stretch.
Using the San Francisco Sanctuary City Ordinance as an example, it’s easy to see the stark difference in the approach between immigration sanctuary cities and the so-called gun rights sanctuary cities being passed in Illinois and elsewhere.
First passed in 1989 and last amended in 2016, SF Admin Code 12H-12I takes an approach completely opposite to that of Effingham County. Instead of waiting for a determination that an act is unconstitutional, and then ending enforcement of that act, San Francisco immediately ends enforcement assistance for most federal immigration laws and will only help if there’s a determination that they’re required to do so. It reads, in part:
No department, agency, commission, officer, or employee of the City and County of San Francisco shall use any City funds or resources to assist in the enforcement of Federal immigration law or to gather or disseminate information regarding release status of individuals or any other such personal information as defined in Chapter 12I in the City and County of San Francisco unless such assistance is required by Federal or State statute, regulation, or court decision.
This prohibition is in effect right now in San Francisco, and includes, “but is not limited to”
Assisting or cooperating, in one’s official capacity, with any investigation, detention, or arrest procedures, public or clandestine, conducted by the Federal agency charged with enforcement of the Federal immigration law and relating to alleged violations of the civil provisions of the Federal immigration law, except as permitted under Administrative Code Section 12I.3
There is no similar prohibition in effect in Effingham County at all.
While this effort to create gun sanctuary cities in Illinois was inspired by efforts in Oregon, the localities passing resolutions there are just as ineffective in practice.
Take Coos County, for example, where a “Second Amendment Preservation Ordinance” was passed in early 2015.
After a series of “WHEREAS” clauses, which are merely statements of intent or “findings” without any legal effect, the “enacting clauses” that start with “THEREFORE … DO ORDAIN…” provide no directive to end enforcement of any gun law, state or federal. It reads, in part:
Any regulation of the right to keep and bear arms or ancillary firearms rights that violate the Second, Ninth, Tenth or Fourteenth Amendments to the Constitution of the United States of America, or Article 1, sections 27 and 33 of the Constitution of the State of Oregon, as articulated herein, shall be regarded by the People on and in Coos County as unconstitutional; a transgression of the Supreme Law of the Land and its spirit of Liberty, and therefore by necessity void ab initio
In short, the ordinance voters passed says that if a regulation of the right to keep and bear arms is deemed a violation of the Constitution, the people of Coos County will regard it as unconstitutional.
On its own, this does absolutely nothing. The ordinance then includes a directive, of sorts, to end enforcement of gun laws:
The Coos County Government will not authorize or appropriate governmental funds, resources, employees, agencies, contractors, buildings, detention centers or offices for the purpose of enforcing any element of such acts
But the phrase “such acts” refers to those in the previous sections that have been deemed unconstitutional. With that additional clause, the ordinance is saying, “If a gun regulation is deemed a violation of the Constitution, the people of Coos County will regard it as unconstitutional. And, the County Government won’t help enforce it.”
The ordinance does allow for the sheriff to make that constitutional determination, but without that additional step, no enforcement ends in practice.
Similar ordinances were passed in Wheeler, Wallowa and Curry counties, and will be on the ballot in Columbia and Klamath counties this fall. Weaker resolutions without any attempt to end enforcement of anything were passed in Douglas, Linn, Yamhill and Baker counties.
STRATEGY AND BACKBONE
While San Francisco – and many other cities – immediately withdrew resources from the enforcement of federal immigration laws and continue to do so, only to change course if required to otherwise, Effingham, Coos and other counties are going the opposite direction on guns.
They’re changing absolutely nothing today. They’re not ending any enforcement right now. They’re waiting to be told they can at some undetermined point in the future.
However, they can do something right now if they simply change the approach used in their resolutions and ordinances.
Instead of including a clause saying they’ll stop enforcement if an act is determined to be unconstitutional, they can follow the approach in the TAC’s model Second Amendment Preservation Ordinance by banning assistance to federal gun control measures immediately.
This strategy of opting out of without first asking is based on James Madison’s advice in Federalist #46, that states and individuals should use “a refusal to cooperate with officers of the Union” as an effective way to oppose and end them. This strategy has also been upheld repeatedly by the Supreme Court in the “anti-commandeering doctrine” based on a series of five landmark cases from 1842-2018.
This strategy isn’t just sound as far as constitutional principle and court precedent are concerned. It’s extremely effective as well. If immigration sanctuary cities weren’t having any effect undermining federal immigration enforcement, no one would be complaining about them or trying to stop them. They’d be laughed off as grandstanding political efforts to whip up donations and votes.
And, as Judge Andrew Napolitano put it in 2014, doing the same on gun control measures would make them “nearly impossible” to enforce as well.
If gun rights supporters are serious about ending enforcement of gun laws, they should work on legislative efforts that actually end enforcement. Herndon, Kansas already took that step in 2013, and other counties and cities can do the same.
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