Do pro-gun "Second Amendment sanctuaries" threaten a constitutional crisis?

Hundreds of localities have passed pro-gun "sanctuary" resolutions, suggesting "language of armed insurrection"

By Jon Skolnik

Staff Writer

Published April 20, 2021 5:40AM (EDT)

Guns Rights (Photo illustration by Salon/Getty Images)
Guns Rights (Photo illustration by Salon/Getty Images)

Over the past several years, the U.S. has seen a new kind of a sanctuary movement rising — from the far right. Borrowing language from the sanctuary movement that began in the 1980s, in which U.S. cities declared themselves safe havens for undocumented immigrants, Republican-led states and localities throughout the nation are now declaring themselves "Second Amendment sanctuaries," adopting resolutions that express opposition to any form of firearms regulation.

The term "Second Amendment sanctuary" was apparently coined in 2013 by the Board of Commissioners in Carroll County, Maryland — a relatively conservative area northwest of Baltimore in an overwhelmingly Democratic state — in response to the Maryland State Firearms Act, which instituted a series of gun reforms. From those modest beginnings, the Second Amendment sanctuary movement has seen exponential growth in recent years. According to the Brady Center to Prevent Gun Violence, since 2018 nearly 270 counties across the country have passed resolutions declaring themselves part of the movement. Last year, The Trace found that 400 municipalities in 20 states had drafted resolutions — and the numbers have only risen since then. 

More recently, the movement has seen support from entire state governments. Earlier this month, Texas Gov. Rick Abbott, a Republican, vowed to make the entire Lone Star State a Second Amendment sanctuary following President Biden's announcement of executive actions addressing "ghost guns," or unregistered firearms that can be assembled at home. Biden's announcement also provoked Nebraska's passage of a similar resolution last week, in which the state promised to "stand up against federal overreach." Last month, the Arizona legislature also passed its own resolution, declaring that the state will, as an Arizona Republic op-ed put it, "ignore any federal gun law it doesn't like."

To this point, it's clear that these resolutions aim to combat what gun rights enthusiasts would consider "infringements'' on the right to bear arms. Examples might include universal background checks as a requirement for all gun sales, a ban on assault and automatic firearms, a ban on gun shows (which allow purchasers to skirt federal background checks) or the enactment of "red flag" laws, which allow family members and law enforcement to challenge a person's right to own a gun if they appear to pose a danger to themselves or their communities. 

That said, the language used in these resolutions runs the gamut: Some are limited and obviously symbolic, while others seek to challenge the central idea of federal regulatory authority.

UCLA School of Law professor Adam Winkler told Salon he sees these resolutions as "mostly symbolic, mostly a way for pro-gun communities to express opposition to rising sentiment in favor of gun safety reform." This can be seen in the case of Baker County, Florida, which drafted a resolution in February of last year that presented various legal decisions surrounding gun laws and declared itself a "Second Amendment Sanctuary in order to preserve for the People of, on, and in Baker County, their rights guaranteed by the Constitution of the United States of America." 

Others, however, are more action-oriented. Gordon County, Georgia, for example, "pledge[d] not to allocate any funds that could be used to violate ... the Second Amendment Rights of [its] citizens to keep and bear arms," according to an issue brief written by the American Constitution Society. Apache County, Arizona, the brief noted, will also not "authorize or appropriate government funds, resources, employees, agencies, contractors, buildings, detention centers, or offices for the purpose of enforcing laws that unconstitutionally infringe on the people's right to keep and bear arms." 

More confrontational still are resolutions like the one in Benton County, Arkansas, which holds that any federal law the county deems "unlawful" (i.e., one that "restricts an individual's Constitutional right to keep and bear arms") is literally invalid. Benton County also seeks to prohibit local officials from enforcing "unlawful" federal acts, and helpfully lists nine examples of what such acts might be.

At this juncture, it remains unclear what the constitutional implications of Second Amendment sanctuaries may be. Under current jurisprudence, the federal government cannot compel state and local authorities to abide by federal law, a point University of Virginia Professor of Law Rich Schragger affirmed in an interview: "There is a constitutional doctrine that holds that local officials can't be commandeered to enforce certain kinds of federal mandates." This doctrine has its basis in the 10th Amendment, which states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

This prohibition on "commandeering," to be clear, does not prohibit federal authorities themselves, such as the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), from prosecuting state-sanctioned violators of federal law. But as Rick Su, a law professor at the University of North Carolina School of Law, told Salon, "federal enforcement is practically limited."

A widespread feeling among states and localities "that they can act with impunity already exists," Su said, because of "the paucity of federal enforcement to begin with." For instance, the ATF, which monitors the illegal use and trafficking of firearms, has just over 5,000 federal employees. By contrast, California boasts about 121,000 full-time law enforcement officers. The federal government, in other words, simply doesn't have the resources to make up for non-compliance by state and local officials.

One "well-established way for the government to obtain compliance" from states and localities, noted SUNY Cortland's Robert J. Spitzer, a distinguished scholar on gun control, might be to make federal funding contingent on the enforcement of federal law. In fact, the federal government employed precisely this tactic to enforce the 1984 National Minimum Age Drinking Act, which raised the national drinking age to 21. To incentivize nationwide compliance, Congress threatened to slash annual highway funding to each state by 10 percent if state officials did not enforce the law. This tactic was at least threatened under the Trump administration, when a U.S. Court of Appeals ruled that the former president could withhold federal funding from states that did not enforce federal immigration law. 

But holding federal funding over states' heads is likely to lead to constitutional objections in court, which is what happened in 2018 when New York Attorney General Barbara D. Underwood sued the Justice Department for withholding grant money from sanctuary cities in states like New York, New Jersey and Connecticut because they refused to comply with immigration law. "If the federal law is based on a condition on funding," concluded Schragger, "it has to be designed in such a way that it's not too coercive of state and local officials."

Several experts explained that the constitutional implications of these resolutions boil down to the somewhat subjective question of exactly what they intend to express. Schragger observed that many of them appear to embody the same arguments. For example, local officials "assert Second Amendment rights that are universal — not just local," he said. They also "assert that they have the right ... to oppose and reject the constitutional interpretation of duly appointed courts and elected officials."

Schragger also noted the long history of local officials' attempts to declare their independence from federal authority, which stretches back to the early years of the republic, and some of the darker episodes of our national story. In the early 1800s, many Northern states were subject to the federal Fugitive Slave Acts of 1793 and 1850, which mandated that enslaved people who had fled from their owners should be returned, even if they had escaped to free states. Many Northern states challenged this law through the legal theory called "nullification," which argues that states can effectively reject federal laws they deem unconstitutional.

Those attempts to nullify fugitive slave laws did not hold up in court, however, and most if not all subsequent attempts at nullification have failed ever since. "The broader historical context" to this chapter of the gun rights battle, Su said, "is whether states and localities have the power of nullification. The answer is no, and every time that's been attempted there's been a constitutional crisis in one form or another."

None of these resolutions specifically evoke such a crisis, and in fact most claim to be loyal to their own reading of the Constitution. But using the language of nullification, said Schragger, "is essentially secessionist. They're reaching back to a language of armed insurrection." Some Second Amendment sanctuary resolutions have "close ties" with "militia and reactionary movements," Schragger added. "They're part and parcel of the rhetoric of violent opposition and insurrection." 

Indeed, many of the counties and localities that have passed such resolutions are home to a number of right-wing militias. Several rural counties in Virginia, for example, have "have mulled resolutions that would officially endorse the assembly and training of local militias. At least three counties have approved them," according to the New York Times. Those same counties are also, not coincidentally, self-declared Second Amendment sanctuaries. 

There is also Hood County, Texas, which in 2019 declared itself a Second Amendment sanctuary with staunch support from Sheriff Roger Deeds, himself a member of the Constitutional Sheriffs and Peace Officers Association, a radical right-wing group that believes the "law enforcement powers held by the sheriff supersede those of any agent, officer, elected official or employee from any level of government when in the jurisdiction of the county." Just last year, Politico found that several members of the Oath Keepers militia serve in Hood County government, as elected constables working directly under the county sheriff. Deeds declined to condemn the Oath Keepers, telling Politico that he didn't "believe they are bad people by any means."  

There is potential cause for concern in the apparent connection between these resolutions and right-wing militia groups, especially when these such militias have been accused of leading an insurrection aimed at overturning a presidential election. An entire media narrative has coalesced around the idea that any attempt to limit gun ownership could send America spiraling into civil unrest. 

Spitzer, the SUNY Cortland professor, isn't convinced things will get that bad that quickly. "It seems possible that at some point there will be an actual clash that results in a court challenge, or perhaps a standoff between local officials and state or federal officials," he said. "It seems highly unlikely that the vast majority of local government officials are interested in such brinkmanship, but there are a few who, I am sure, would welcome it. An armed standoff is a possibility — like the followers of Ammon Bundy, for example — but it seems more likely that a clash would result in court action." 

It's also plausible that Second Amendment sanctuaries represent a campaign to build a broader political coalition against gun control. As Su put it, "They may build it into a movement and hope that the Supreme Court rules in their favor." In fact, the gun lobby may be perfectly poised to win at the highest court in the land, since its three newest justices appointments — Brett Kavanaugh, Amy Coney Barrett and Neil Gorsuch — all arrived with the blessing of the National Rifle Association, which did not respond to Salon's request for comment. 

Still, gun reform advocates are not taking the resolutions lightly, and some see the danger of a constitutional crisis as real. "If the framers wanted a system in which local politicians chose which state and federal laws get enforced, they would have written a different constitution," said Nick Suplina, managing director of law and policy at Everytown for Gun Safety. "That's not how our democracy works, and it sets a dangerous precedent. These are misleading, misguided attempts to undermine lifesaving public safety laws like background checks, which the overwhelming majority of people, gun owners included, support."

By Jon Skolnik

Jon Skolnik was a former staff writer at Salon.

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