With Joe Biden in the White House, Republicans have once again become interested in blocking enforcement of unconstitutional federal gun control. This led to a flurry of bills introduced in state legislatures this year purporting to create “Second Amendment Sanctuaries.” In fact, many of these bills create sanctuaries for absolutely nothing.
The term “sanctuary” was borrowed from states and localities that have implemented policies that prohibit cooperation with some federal immigration enforcement. A number of jurisdictions have passed “sanctuary” laws to great effect. They work because they prohibit state and local officials from taking specific, well-defined actions. For instance, some states have prohibited local agencies from entering into contracts with the federal government to use jails for the purpose of detaining undocumented immigrants. Other jurisdictions have banned collecting immigration information, making it impossible to pass it along to federal authorities.
Based on James Madison’s advice for states and individuals in Federalist #46, a “refusal to cooperate with officers of the Union” sanctuary policies are an extremely effective method to hinder the enforcement of federal immigration law because most enforcement actions rely on help, support and leadership from the states. This is true of virtually every federal law, including gun control. Simply put, partnerships don’t work too well when half the team quits. Fox News senior judicial analyst Judge Andrew Napolitano agreed. In a televised discussion on gun control, he noted that a single state taking this step would make federal gun laws “nearly impossible” to enforce.
This strategy is fully supported by a Supreme Court legal doctrine. Any state can legally bar its agents from enforcing immigration laws, federal gun control, or anything they please. Refusal to cooperate with federal enforcement rests on a well-established legal principle known as the anti-commandeering doctrine. Simply put, the federal government cannot force states to help implement or enforce any federal act or program.
Significantly, no determination of constitutionality is necessary to invoke the anti-commandeering doctrine. State and local governments can refuse to enforce federal laws or implement federal programs whether they are constitutional or not.
Second Amendment Sanctuaries: The Good, the Bad and the Ugly
Some of the Second Amendment sanctuary legislation introduced this past year mirrored immigration sanctuary policies by banning specific actions. For instance, a Missouri bill signed into law prohibits state or local enforcement of any past, present or future federal “acts, laws, executive orders, administrative orders, court orders, rules, regulations, statutes, or ordinances” that infringe on the right to keep and bear arms. The key to this law is that it goes on to define specific acts that qualify as “infringements.” Moving forward, state and local law enforcement can’t legally enforce those acts.
Arizona took a different approach with its new law. It bans state and local enforcement of any federal gun control that is “inconsistent” with any law of the state of Arizona regarding the regulation of firearms. Again, this bans the enforcement of specific federal actions – anything that isn’t already in state law.
But many of the laws purporting to create Second Amendment sanctuaries do no such thing because they don’t ban any specific action, or they include language that opens significant loopholes. One new law even asks permission from the feds to stop enforcing unconstitutional gun control.
Following are the six worst “Second Amendment Sanctuary” laws passed this year.
This new law has decent provisions banning enforcement of some future federal gun control, but it includes language that could open a pretty significant loophole. State or local agents can cooperate with the enforcement of banned future federal gun control if a federal court finds probable cause that “a national security threat exists.” It also gives law enforcement plenty of wiggle room to continue working on joint state/federal task forces when federal gun control is incidentally enforced.
“This section does not prohibit an agency or political subdivision of the state or a law enforcement officer or individual employed by an agency or political subdivision of the state from providing assistance to a federal agency or official for an offense not related to firearms or an offense to which firearms are incidental, including a drug offense, homicide, assault, kidnapping, sex offense, or human trafficking.”
With the exceptions and continued partnering with federal task forces, it’s hard to predict just how effective the ban on enforcement will play out in practice.
This is another law that might ban enforcement of some future federal gun control, but some convoluted language in the bill makes it uncertain if it will actually play out that way in practice.
The law prohibits public officers and employees of the state and its political subdivisions from “enforcing or assisting federal agencies or officers in the enforcement of any federal statute, executive order, or federal agency directive that conflicts with Arkansas Constitution, Article 2, § 5, or any Arkansas law.”
The bill declares a “federal ban” null and void in the state of Arkansas. A federal ban is broadly defined as “a federal law, executive order, rule, or regulation that is enacted, adopted, or becomes effective on or after January 1, 2021, that infringes upon, calls into question, or prohibits, restricts, or requires individual licensure for or registration of the purchase, ownership, possession, transfer, or use of any firearm, any magazine or other ammunition feeding device, or other firearm accessory.”
The bill also includes a list of federal actions that would qualify as “a federal ban.”
So far, so good, at least on the surface.
However, much of the language of the bill is extremely convoluted and could leave a loophole for law enforcement officers to continue enforcing federal gun control. It specifically bars state and local agents from enforcing acts that “conflict with Arkansas Constitution, Article 2, § 5, or any Arkansas law.”
Law enforcement lobby groups are likely to promote the view that “it’s not the job of a law enforcement officer to determine what’s constitutional or not.” And in practice, that means law enforcement agents could plausibly continue helping in the enforcement of all federal gun control in Arkansas until a court tells them to do otherwise.
It appears that the bill intends to link the definition of a “federal ban” with acts state and local agents would be prohibited from enforcing. But the term “federal ban” does not appear in the clause prohibiting enforcement. The most generous reading of the bill would prohibit state and local officials from enforcing any federal action included in the definition of a federal ban. But the tangled language makes it difficult to determine how the law would be interpreted in practice.
A leading grassroots activist in Arkansas called the bill “smoke and mirrors.”
This “Second Amendment Preservation Act” will likely serve only to protect most federal gun control. The law’s saving grace is that it does prohibit state enforcement of federal “red flag laws” in West Virginia. Other than that, the law is a tangled web of convoluted language.
The law includes provisions that appear to block state and local police from enforcing federal gun control under the anti-commandeering doctrine.
“No agency of this state, political subdivision of this state, or employee of an agency, or political subdivision of this state, acting in his or her official capacity, may be commandeered by the United States government under an executive order or action of the President of the United States or under an act of the Congress of the United States. Federal commandeering of West Virginia law-enforcement for purposes of enforcement of federal firearms laws is prohibited.”
But the convoluted definition of anti-commandeering in the bill makes this provision utterly meaningless.
“Commandeering” means taking control of or seizing the assets, personnel, or operations of an agency of this state, or of a political subdivision of this state, or the employees of an agency or political subdivision of this state without the express authority for the control having been formally given by the state or political subdivision of the state.
This never happens.
The feds don’t just go grab some local cops and force them to enforce federal gun control. State and local police do this voluntarily. The feds ask for help. State and local police provide it. And under this West Virginia law, they will be free to continue doing so.
Texas
Gov. Greg Abbott said that signing HB2622 into law would make his state a “2nd Amendment Sanctuary.” However, the new law doesn’t ban the state from enforcing any existing federal gun control – none. Given the extensive federal gun control already on the books, this new “sanctuary” status looks pretty much like the status quo. The state will continue to cooperate with enforcement of all federal gun control. That doesn’t qualify as a “sanctuary.”
The new law does appear to ban the state and local police from the enforcement of most future federal gun control that “imposes a prohibition, restriction, or other regulation that does not exist under the laws of this state.” However, a loophole in the bill will allow continued support for the enforcement of any future gun control as well – as long as it’s done under existing task force agreements, which virtually every locality in the state has.
A law purporting to make Oklahoma a “Second Amendment Sanctuary State” did no such thing and it will have little or no practical effect. It is basically a non-binding resolution.
The new law declares the following:
“Any federal, state, county or municipal act, law, executive order, administrative order, court order, rule, policy or regulation ordering the buy-back, confiscation or surrender of firearms, firearm accessories or ammunition from law-abiding citizens of this state shall be considered an infringement on the rights of citizens to keep and bear arms as guaranteed by the Second Amendment of the Constitution of the United States and Article II, Section 26 of the Constitution of Oklahoma.”
Under the law, it is now “the duty of the courts and law enforcement agencies of this state to protect the rights of law-abiding citizens to keep and to bear arms within the borders of this state and to protect these rights from the infringement provided under the provisions of this act.”
Compare this approach with that of almost every immigration sanctuary city or state, and the difference becomes stark. The former includes an express prohibition on state and/or local law enforcement participation in federal immigration enforcement. While SB631 includes no such thing, it does not require any specific action to fulfill this “duty.”
Lacking any specific actions or prohibition on actions for police or courts to follow, it’s almost certain they will take no action at all, instead deferring to the federal courts on any question of constitutionality.
The new Tennessee law is the worst of the worst. It literally begs for permission to stop state and local enforcement of federal gun control.
Sen. Joey Hensley (R-Hohenwald) and Rep. Scotty Campbell (R-Mountain City) sponsored the so-called “Tennessee Second Amendment Sanctuary Act.” Once again, we have a sanctuary for nothing.
In 2015, Tennessee enacted a law that bans Tennessee state or local public funds, personnel, or property from being used for the “implementation, regulation, or enforcement of any federal law, executive order, rule or regulation regulating the ownership, use, or possession of firearms, ammunition, or firearm accessories” if such use “would result in the violation of Tennessee statutory or common law or the Constitution of Tennessee.”
The problem with this law is that it lacks any method to determine if a specific federal action violates the Tennessee constitution or a Tennessee law. For full effect, it needs to define specific acts that violate the state constitution. Instead, SB1335/HB928 created a process to determine constitutionality – an opinion by the U.S. or Tennessee Supreme Court. The new law added the following language to the current law.
“Pursuant to the sovereign authority of this state, a law, treaty, executive order, rule, or regulation of the United States government that has been found by the supreme court of the United States or the Tennessee supreme court to violate Article I, § 26 of the Constitution of Tennessee or the Second Amendment to the United States Constitution is null, void, and unenforceable in this state.”
In other words, the state will continue to enforce all federal gun control until a court gives them permission to stop.
UPDATE Aug 3, 2021 12:13 PST – edited to correct an error in the Texas section, noting passage of HB2622
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