Copyright 2020 by Shawn E. Fields Printed in U.S.A.
Vol. 115, No. 2
437
SECOND AMENDMENT SANCTUARIES
Shawn E. Fields
ABSTRACT—The term “sanctuary” has long expressed a sympathy for
immigrants’ rights and resistance to federal immigration enforcement.
Recently, the word has become associated with another divisive political
topic, as local governments have begun declaring themselves “Second
Amendment Sanctuaries” in defiance of statewide gun-control measures
they deem unconstitutional. This gun-rights resistance movement not only
flips the political script on the nature of sanctuaries, but also presents
important and challenging questions about local–state power sharing, the
proper scope of “subfederal commandeering,” and the role of coordinate
branches in constitutional decision-making.
This Article provides the first scholarly treatment of Second
Amendment Sanctuaries. In doing so, it explores both the unique facets of
this new localism and the broader implications for sanctuary movements
generally. Most early commentary dismisses Second Amendment
Sanctuaries as purely symbolic and presumptively invalid pursuant to state
preemption principles and the judicial supremacy model of constitutional
interpretation. This Article challenges that narrative and articulates a theory
of limited viability for Second Amendment Sanctuaries and other local
intrastate resistance movements more broadly.
The theory this Article presents proceeds in three parts, with each part
presenting a novel approach to local–state governmental conflict that
contributes to the existing literature. First, localities can resist broad state
preemption in limited circumstances via the state’s “home rule” provisions
when local regulation of a particular issue is rooted in history and has
normative policy appeal. Second, localities may passively resist statewide
regulation through a form of “subfederal anticommandeering” analogous to
the Tenth Amendment’s anticommandeering principles protecting states
from federal overreach, so long as the locality takes no affirmative steps to
frustrate state enforcement. Third, local enforcement officers may defend
their resistance on substantive constitutional grounds when the right at issue
is not firmly settled by the judiciary. This “first impression departmentalism”
reflects the belief that all coordinate branches of government should play a
role in defining the contours of constitutional provisions when emerging
doctrine remains in a state of flux. These three principles counsel in favor of
the viability of at least some Second Amendment Sanctuaries as currently
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
438
constructed, as well as possible future “gun control sanctuaries” resisting
statewide firearm deregulation.
AUTHOR—Shawn Fields, Assistant Professor of Law, Campbell University
School of Law. Many thanks to Joseph Blocher, Darrell A.H. Miller, Jacob
D. Charles, and the Duke Center on Firearms Law for their helpful assistance
and comments on earlier drafts of this paper. I am also grateful for invaluable
feedback and insight from Richard Briffault, Rich Schragger, Rick Su,
Pratheepan Gulasekaram, Sarah Swan, Kenneth Stahl, Katherine Mims
Crocker, Alli Larson, Dave Fagundes, Tony Ghiotto, Bobbi Jo Boyd, and
Greg Wallace. I also owe a huge debt to Noël Harlow, without whom this
Article would not exist. All errors are my own.
INTRODUCTION ............................................................................................................ 438
I. SECOND AMENDMENT SANCTUARIES: A PRIMER .................................................. 448
A. The New Gun-Control Movement ............................................................... 449
B. Gun-Rights Localism .................................................................................. 453
C. Sanctuaries Compared ................................................................................ 461
II. SANCTUARIES AND PREEMPTION .......................................................................... 466
A. The Preemption Paradigm .......................................................................... 467
B. Partisan Preemption ................................................................................... 469
C. Normative Localism .................................................................................... 474
D. Constitutional Home Rule ........................................................................... 476
III. SANCTUARIES AND COMMANDEERING .................................................................. 480
A. Local–Federal Anticommandeering ........................................................... 481
B. Subfederal Commandeering ....................................................................... 484
C. Subfederal Anticommandeering? ................................................................ 485
IV. SANCTUARIES AND CONSTITUTIONAL INTERPRETATION ........................................ 489
A. The Second Amendment in “Flux” ............................................................. 490
B. First Impression Departmentalism ............................................................. 493
C. Impact-Litigation Localism ......................................................................... 497
CONCLUSION ............................................................................................................... 500
INTRODUCTION
The term “sanctuary” in the immigration context has come to represent
both a broad sympathy for undocumented immigrants and a correlative
115:437 (2020) Second Amendment Sanctuaries
439
antipathy for federal immigration enforcement.
1
Self-proclaimed “sanctuary
cities”
2
pass resolutions asserting their refusal to assist federal agencies in
carrying out federal immigration functions.
3
Churches, schools, and other
members of “sanctuary networks” hold themselves out as places of refuge
beyond the reach of Immigration and Customs Enforcement (ICE).
4
Depending on one’s political party, these efforts reflect either a desire to
protect immigrants from “heartless and ineffective” federal deportation
policies or an anarchic attempt to “protect[] criminals who sneak[] into the
country illegally.”
5
But while the term “sanctuary” may effectively signal a
set of core beliefs about immigration, the “S-word” lacks a clear definition
in both law and policy.
6
Despite this ambiguity, the term has recently appeared 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.
7
These
1
See Christopher N. Lasch, R. Linus Chan, Ingrid V. Eagly, Dina Francesca Haynes, Annie Lai,
Elizabeth M. McCormick & Juliet P. Stumpf, Understanding “Sanctuary Cities,” 59 B.C. L. REV. 1703,
1709–10 (2018) (summarizing history of the “sanctuary” as a place of “support and integrat[ion]” for
undocumented immigrants and a place of “resistance to federal immigration enforcement”); Toni M.
Massaro & Shefali Milczarek-Desai, Constitutional Cities: Sanctuary Jurisdictions, Local Voice, and
Individual Liberty, 50 COLUM. HUM. RTS. L. REV. 1, 16–17 (2018) (summarizing history of immigrant
sanctuaries as places offering “a range of benefits and protections to . . . undocumented immigrants”).
2
See Lasch et al., supra note 1, at 1711.
3
See Massaro & Milczarek-Desai, supra note 1, at 16–17 (“So-called ‘sanctuary jurisdictions’ seek
to limit local enforcement of federal and state immigration policies and practices.”).
4
See Rose Cuison Villazor & Pratheepan Gulasekaram, Sanctuary Networks, 103 MINN. L. REV.
1209, 1212–14, 1222 (2019) (describing the “novel forms of sanctuary” that have surfaced in the
immigration context, from churches and “self-declared sanctuary campuses to #resistICE [and] workplace
sanctuary”).
5
George Skelton, What Does ‘Sanctuary State’ Actually Mean? It’s Time for Lawmakers to Figure
It Out, L.A. TIMES (Mar. 16, 2017, 12:05 AM), https://www.latimes.com/politics/la-pol-sac-skelton-
sanctuary-state-compromise-20170316-story.html [https://perma.cc/FE2C-JEAD]; David J. Toscano,
The Gun Sanctuary Movement Is Exploding, SLATE (Dec. 11, 2019, 4:23 PM), https://slate.com/news-
and-politics/2019/12/second-amendment-gun-sanctuary-movement-constitution.html
[https://perma.cc/SA9E-93YA].
6
See Skelton, supra note 5; see also Lasch et al., supra note 1, at 1709 (“[T]he term ‘sanctuary’ . . .
is deeply contested and lacks a commonly accepted meaning.”); Massaro & Milczarek-Desai, supra note
1, at 16 (“‘Sanctuary jurisdiction’ is a non-legal term . . . .”); Rose Cuison Villazor, What Is a
“Sanctuary”?, 61 SMU L. REV. 133, 147–50 (2008) (comparing narrow “public sanctuary laws” within
a broader context of what it means to be a sanctuary jurisdiction).
7
Toscano, supra note 5; see also Simon Romero & Timothy Williams, When Sheriffs Say No:
Disputes Erupt over Enforcing New Gun Laws, N.Y. TIMES (Mar. 11, 2019),
https://www.nytimes.com/2019/03/11/us/state-gun-laws.html [https://perma.cc/GY8Q-ZMZS] (“As
states have approved dozens of restrictive gun control measures . . . efforts to resist such laws have
gathered strength around the nation as rural gun owners say their rights are being violated.”).
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resolutions take different forms, but most advocate an absolute right to
protect local citizens from any statewide gun-control law by refusing to
enforce those laws in their jurisdiction.
8
Much like immigrant sanctuaries, Second Amendment Sanctuaries, or
“gun sanctuaries,” claim immunity 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 Article wades into these debates over preemption,
commandeering, and constitutional interpretation as applied to the unique
case of Second Amendment Sanctuaries.
This latest iteration of local resistance to outside lawmaking has
dominated the political landscape in Colorado,
9
Illinois,
10
New Mexico,
11
Virginia,
12
and other states with newly elected democratic legislatures
seeking to pass new gun regulations. The regulations most commonly
targeted by gun-sanctuary activists include universal background checks,
assault weapons bans, and any “extreme risk protection order” (ERPO)
regulation that includes a universal background check provision.
13
Extreme
8
See, e.g., Res. of Carroll Cnty. Bd. of Supervisors (Va. 2019),
http://www.carrollcountyva.gov/document_center/Board%20Packets/2019/May/Resolution.pdf
[https://perma.cc/JKP6-KPDP] (“[T]he Board of Supervisors hereby declares its intent to oppose
unconstitutional restrictions on the right to keep and bear arms . . . [and] hereby declares Carroll County,
Virginia, as a ‘Second Amendment Sanctuary.’”).
9
Abigail Beckman, Counties Declare Second Amendment Sanctuary Status as Legislature Debates
Red Flag Bill, KRCC (Mar. 7, 2019), https://www.krcc.org/post/counties-declare-second-amendment-
sanctuary-status-legislature-debates-red-flag-bill [https://perma.cc/M35W-LUFG] (“A growing number
of Colorado counties . . . have said they would not enforce the legislation should it become law.”).
10
Associated Press, In Virginia and Elsewhere, 2nd Amendment ‘Sanctuary’ Movement Aims to Defy
New Gun Laws, L.A. TIMES (Dec. 21, 2019, 1:33 PM), https://www.latimes.com/world-
nation/story/2019-12-21/second-amendment-sanctuary-push-aims-to-defy-new-gun-laws [https://perma.
cc/5PNC-M5QZ] (explaining that “today, 70 out [of] the 102 counties in Illinois have approved . . .
resolutions” to refuse enforcement of gun-control advocates’ proposed legislation, including extreme risk
laws and other statewide gun-control measures).
11
Alicia Nieves, A Majority of New Mexico Counties Are Now Second Amendment Sanctuaries—
and More States Are Following Suit, NEWS CHANNEL 5 NASHVILLE (Nov. 22, 2019),
https://www.newschannel5.com/news/national-politics/the-race-2020/a-majority-of-new-mexico-
counties-are-now-second-amendment-sanctuaries-and-more-states-are-following-suit
[https://perma.cc/TJ8P-KCJA] (noting that New Mexico’s Cibola County and “29 of the other 32
counties” have passed Second Amendment Sanctuary resolutions, with over “150 other counties in at
least 15 states” following suit).
12
Robert VerBruggen, Virginia’s Second Amendment Sanctuaries: An Update, NAT’L REV. (Dec.
16, 2019, 8:26 AM) (“[T]he sanctuaries have spread dramatically. They’re up to 93 jurisdictions—
covering roughly 40 percent of the population . . . .”).
13
See Joseph Blocher & Jacob D. Charles, Firearms, Extreme Risk, and Legal Design: “Red Flag”
Laws and Due Process, 106 VA. L. REV. (forthcoming 2020) (manuscript at 8, 12),
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441
risk laws, also called “red flag” laws, authorize courts to temporarily prohibit
the possession of a firearm for anyone judicially determined to be a danger
to themselves or others.
14
While the term “sanctuary” has no precise legal meaning, its use in
immigration and firearms contexts provides a useful comparison through
which to analyze the purpose and viability of new gun sanctuaries. Both
immigrant sanctuaries and gun sanctuaries are forms of local resistance to
the enforcement of laws passed by a superior governmental entity, be it the
federal or state government. These two forms of sanctuaries primarily
(though not exclusively) seek to resist outside lawmaking passively by
simply refusing to enforce these laws, rather than affirmatively passing
contrary legislation or otherwise erecting a substitute regulatory regime.
15
But there are important limits to the analogy between immigrant and
gun sanctuaries. For one, the legal justification for immigrant sanctuaries
rests on firmer footing because jurisdictions declining to enforce federal
immigration law do so per their right under United States federalism
structures and anticommandeering principles of the Tenth Amendment,
which together hold that Congress cannot directly compel state political
branches to perform regulatory functions on the federal government’s
https://papers.ssrn.com/a=3534630 [https://perma.cc/6N7J-EPE2] (observing that only two states had so-
called “red flag” laws before 2014, but that by 2019, “seventeen states and the District of Columbia had
adopted some version of an extreme risk law”); Jennifer Mascia, Second Amendment Sanctuaries,
Explained, THE TRACE (Jan. 14, 2020), https://www.thetrace.org/2020/01/second-amendment-sanctuary-
movement/ [https://perma.cc/2CRA-LG5W] (discussing regulations commonly targeted by Second
Amendment Sanctuaries); Leigh Paterson, Poll: Americans, Including Republicans and Gun Owners,
Broadly Support Red Flag Laws, NPR (Aug. 20, 2019, 5:01 AM),
https://www.npr.org/2019/08/20/752427922/poll-americans-including-republicans-and-gun-owners-
broadly-support-red-flag-law [https://perma.cc/RJ93-JU9F] (noting that the federal Extreme Risk
Protection Order Act of 2019 had initial bipartisan support, with President Trump “reportedly . . . in talks
with senators about . . . assisting states with implementing their own [extreme risk protection orders]”).
14
See Timothy Williams, What Are ‘Red Flag’ Gun Laws, and How Do They Work?, N.Y. TIMES
(Aug. 6, 2019), https://www.nytimes.com/2019/08/06/us/red-flag-laws.html [https://perma.cc/4R87-
BWRF] (“[These laws] authorize courts to issue a special type of protection order, allowing the police to
temporarily confiscate firearms from people who are deemed by a judge to be a danger to themselves or
to others.”).
15
See Ming Hsu Chen, Sanctuary Networks and Integrative Enforcement, 75 WASH. & LEE L. REV.
1361, 1364 (2018) (examining how sanctuary jurisdictions passively “resist the enlarging enforcement-
related goals of the federal government”); Gregory S. Schneider, In Virginia, and Elsewhere, Gun
Supporters Prepare to Defy New Laws, WASH. POST (Nov. 23, 2019, 7:00 AM),
https://www.washingtonpost.com/local/virginia-politics/in-virginia-and-elsewhere-gun-supporters-
prepare-to-defy-new-laws/2019/11/23/4a95fcc2-0c86-11ea-bd9d-c628fd48b3a0_story.html
[https://perma.cc/U3ND-A3CP] (describing the passive “resistance movement . . . boiling up in Virginia,
where Democrats rode a platform on gun control to historic victories in state elections earlier this month”).
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behalf.
16
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
municipalities act merely as subdivisions of states whose legislation can be
preempted by a contrary state enactment.
17
In this sense, Second Amendment Sanctuary resolutions act more like
local ordinances, such as citywide minimum wage hikes or plastic bag bans
which are subject to invalidation by state preemption, meaning that even if
localities have the power to pass such measures, states can invalidate them.
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.
18
This form of
“deregulatory preemption”
19
has proven a useful tool for gun-rights activists,
who have successfully invalidated urban gun-control measures in some of
the nation’s largest metropolitan areas.
20
The success of this gun-rights-
preemption activism has not been lost on gun-control advocates, who are
now playing by the same preemption playbook as they pass broad statewide
gun-control measures. These new preemption statutes present a significant
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
Sanctuary resolutions do not affirmatively erect a regulatory regime at odds
with an existing or potential state law. Instead, they express a reactive
resistance to the state’s power, communicating what I call a “subfederal
anticommandeering” claim that state authorities must actively enforce their
own laws rather than rely on local compliance.
16
See City of Chicago v. Sessions, 321 F. Supp. 3d 855, 872 (N.D. Ill. 2018) (explaining that the
federal government cannot “direct[] the functioning of local government [immigration enforcement] in
contravention of Tenth Amendment principles,” and holding that Chicago and other sanctuary
jurisdictions are free to decline to enforce immigration laws); Pratheepan Gulasekaram, Rick Su & Rose
Cuison Villazor, Anti-Sanctuary and Immigration Localism, 119 COLUM. L. REV. 837, 837 (2019) (“Thus
far, localities have mainly prevailed against this federal anti-sanctuary campaign, relying on federalism
protections afforded by the Tenth Amendment[] . . . .”).
17
In re City of Central Falls, 468 B.R. 36, 75 (Bankr. D.R.I. 2012) (“Municipalities are creatures of
state law and subject to the power of the State . . . to create, divide, and even abolish them.”).
18
Preemption of Local Laws, GIFFORDS L. CTR. TO PREVENT GUN VIOLENCE,
http://smartgunlaws.org/gun-laws/policy-areas/other-laws-policies/preemption-of-local-laws/
[https://perma.cc/M56C-RJ68].
19
Richard C. Schragger, The Attack on American Cities, 96 TEX. L. REV. 1163, 1182–83 & n.13
(2018) (thanking Richard Briffault “for this insight”).
20
See infra Section II.B; see also Erin Adele Scharff, Hyper Preemption: A Reordering of the State–
Local Relationship?, 106 GEO. L.J. 1469, 1472–74 (2018) (situating firearms preemption within a broader
movement to strip localities of all governing power).
115:437 (2020) Second Amendment Sanctuaries
443
Second Amendment Sanctuaries possess another characteristic absent
from both the immigrant-sanctuary and local-regulation contexts: the
interpretation of a substantive constitutional right. Whereas immigrant
sanctuaries claim a structural right under the Tenth Amendment to resist,
Second Amendment Sanctuaries proclaim an active duty to resist what they
see as unconstitutional infringements of their constituents’ substantive right
to bear arms as defined in District of Columbia v. Heller
21
and incorporated
against the states in McDonald v. City of Chicago.
22
Whether these
resolutions assert per se invalidity for all proposed gun regulations or a more
nuanced constitutional argument for their (mostly rural) localities remains
unclear. But, if it is the latter, a strong “constitutional localism” case can be
raised to support Second Amendment Sanctuaries.
23
Professor 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.
24
But whether recent statewide gun control proposals run
afoul of federal constitutional guarantees in any locality remains an open
question, particularly given the embryonic state and fluctuating nature of
Second Amendment doctrine.
25
Moreover, even if these state regulations
present unconstitutional infringements, the proposition that local executive
21
554 U.S. 570 (2008) (recognizing an individual’s right to keep and bear arms for self-defense that
is unconnected to service in a militia).
22
561 U.S. 742 (2010) (incorporating the Second Amendment, making it enforceable against states
as well as the federal government).
23
Joseph Blocher, Firearm Localism, 123 YALE L.J. 82, 88–90, 125–26 (2013) (discussing “general
virtues of constitutional localism” in tailoring First Amendment rights and contending that these virtues
are easily transferable to the Second Amendment); Richard Briffault, The Challenge of the New
Preemption, 70 STAN. L. REV. 1995, 2022 (2018) (observing that state-constitutional localism operates
“by assuring independent lawmaking capacity for th[e] lower level”); Timothy Zick, Constitutional
Displacement, 86 WASH U. L. REV. 515, 531–32 (2009) (acknowledging that “currents of constitutional
localism remain quite strong” as a force for local autonomy).
24
Blocher, supra note 23, at 89 (“[M]any of the arguments for Second Amendment localism also
suggest that broad preemption laws are an undesirable break from historical practice . . . . and should be
modified or repealed.”); see also Mark D. Rosen, Our Nonuniform Constitution: Geographical Variations
of Constitutional Requirements in the Aid of Community, 77 TEX. L. REV. 1129, 1144 (1999) (describing
reasons for geographical nonuniformity of constitutional rights, including applying a Supreme Court
standard “in a highly context-sensitive manner that reflects appreciation of a discrete community’s
distinctive needs or values”); Mark D. Rosen, The Surprisingly Strong Case for Tailoring Constitutional
Principles, 153 U. PA. L. REV. 1513, 1516 (2005).
25
Blocher, supra note 23, at 129 (“Precisely defining the range of permissible local variation is
impossible, because Second Amendment doctrine itself is still in flux . . . .”); Tina Mehr & Adam
Winkler, The Standardless Second Amendment, 5 AM. CONST. SOC’Y L. & POL’Y 107, 107 (2010)
(asserting that the Supreme Court failed to provide adequate guidance to lower courts on how to resolve
gun controversies).
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actors (like sheriffs and prosecutors) have the authority to make this
determination is a controversial one at best.
26
Given the foregoing, a betting person might conclude that Second
Amendment Sanctuaries are doomed to fail and “will never hold up in
court.”
27
States can and do exercise broad preemption powers over
localities.
28
No local level Tenth Amendment shield protects localities from
commandeering by their state governments.
29
And to the extent these gun
sanctuaries raise valid constitutional questions, such questions must be
resolved by courts rather than municipal “constitutional officers,” like
sheriffs and commonwealth attorneys.
30
This Article challenges those intuitions. While I make no attempt to
predict what will happen in the inevitable litigation over these gun
sanctuaries, I do provide a normative account of a limited path forward for
localities seeking to resist certain state actions. These proposals, while
generally applicable to immigration and other similarly situated sanctuary
contexts, apply with particular salience to firearms regulation.
First, there is a limited space for applying constitutional home rule to
localities when either a federal constitutional interest is implicated or the
state’s own constitutional doctrine authorizes autonomy over matters
historically of “local concern.”
31
In the first instance, the United States
Supreme Court has provided limited local insulation from state preemption
when the local ordinance promotes a federal constitutional right at risk by
the state enactment.
32
Facially, Second Amendment Sanctuaries make the
26
See Toscano, supra note 5 (arguing that “sheriffs may be ‘constitutional officers,’ but they are not
‘constitutional interpreters’”); Neal Devins, Why Congress Does Not Challenge Judicial Supremacy,
58 WM. & MARY L. REV. 1495, 1498–1500 (2017) (summarizing why political branches no longer assert
constitutional interpretation power).
27
Mary B. McCord, Opinion, Second Amendment ‘Sanctuaries’ Will Never Hold Up in Court,
WASH. POST (Jan. 8, 2020, 10:24 AM), https://www.washingtonpost.com/outlook/2020/01/08/second-
amendment-sanctuaries-will-never-hold-up-court/ [https://perma.cc/T39A-YR2S].
28
See infra Section II.A.
29
See infra Section III.B.
30
See Toscano, supra note 5 (arguing that “sheriffs may be ‘constitutional officers,’ but they are not
‘constitutional interpreters’”).
31
See, e.g., Black v. City of Milwaukee, 882 N.W.2d 333, 346, 356 (Wis. 2016) (citations omitted)
(explaining that whether a statewide law violated constitutional home-rule guarantees in the Wisconsin
constitution turned on “whether the matter is ‘primarily’ or ‘paramountly’ a matter of statewide or local
concern”); City of Commerce City v. State, 40 P.3d 1273, 1278–79, 1284 (Colo. 2002) (affirming lower
court’s rejection of a constitutional home-rule challenge because photo radar “has not historically been a
matter of purely local concern,” because the regulation “is a matter of mixed local and state concern”).
32
See, e.g., Romer v. Evans, 517 U.S. 620, 623–24, 629 (1996) (protecting antidiscrimination
ordinances passed by Colorado municipalities against a state constitutional amendment barring
“homosexuals from securing protection against the injuries that [the municipal ordinances] address”).
115:437 (2020) Second Amendment Sanctuaries
445
same claim, though the substantive contours of those constitutional
arguments remain fuzzy given the uncertainties surrounding Second
Amendment doctrine. In the second instance, the nation’s strong history of
firearm localism and the normative preference for adopting flexible
regulations in localities of various population densities and “gun cultures”
may provide for constitutional localism claims.
33
Second, while state preemption may invalidate affirmative local
regulations, passive local ordinances merely resisting enforcement of
superior state law raise different questions. A limited form of subfederal
anticommandeering analogous to federal anticommandeering may be
appropriate, at least in those limited circumstances where a genuine
constitutional claim exists and the local ordinances place no affirmative
roadblocks in the way of state officers enforcing state law. Some Second
Amendment Sanctuaries would likely fall outside this category, 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.”
34
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.
35
And even under
a judicial supremacy model, local gun-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.
The importance of these novel questions posed by Second Amendment
Sanctuaries can hardly be overstated. Prior to 2018, Second Amendment
33
See Blocher, supra note 23, at 104–05 (claiming that locally tailored gun regulation would
“preserv[e] the ability of rural areas to maintain their strong gun culture”).
34
See Rick Su, Intrastate Federalism, 19 U. PA. J. CONST. L. 191, 199–200 (2016) (discussing the
promise and peril of a parallel subfederal system of shared power). Of course, this practical reliance runs
both ways. See id. at 209 (“[L]ocalities are uniquely dependent on state and federal funds.”).
35
See Richard H. Fallon, Jr., Judicial Supremacy, Departmentalism, and the Rule of Law in a
Populist Age, 96 TEX. L. REV. 487, 488–90 (2018) (describing the historical appeal of departmentalism
and revival of the theory in this populist “time of anxiety about the future of the rule of law”); Joseph
Blocher & Darrell A.H. Miller, What Is Gun Control? Direct Burdens, Incidental Burdens, and the
Boundaries of the Second Amendment, 83 U. CHI. L. REV. 295, 301 n.33 (2016) (“The Second
Amendment provides a particularly useful object of study . . . because the individual right it protects was
only recently recognized by the Supreme Court . . . . The nascent doctrine is thus largely unburdened by
precedent . . . .”).
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Sanctuaries did not exist.
36
However, following the Democratic “blue wave”
in 2018,
37
with liberal lawmakers rising to power on the promise to pass
statewide gun-control regulations, local resolutions in opposition to such
statewide regulations exploded onto the scene.
38
In 2019 alone, local Second
Amendment Sanctuary resolutions were adopted in 37 of 64 Colorado
counties,
39
64 of 102 Illinois counties, and 30 of 33 New Mexico counties.
40
In June 2019, all seventeen sheriffs in Nevada signed a letter of “support”
for Second Amendment sanctuaries and in opposition to a gun-control bill
signed by Democratic Governor Steve Sisolak, which has been in effect since
January 2020 and includes universal background checks.
41
And in Virginia,
the state is rapidly becoming ground zero for the Second Amendment
Sanctuary battle; an avalanche of Second Amendment sanctuary resolutions
36
Christopher Brooks, Opinion, Historically Speaking: What’s Behind Movement of Second
Amendment Sanctuaries?, MORNING CALL (Aug. 25, 2019, 11:00 AM),
https://www.mcall.com/opinion/mc-opi-second-amendment-sanctuary-counties-states-20190825-
xtc4wvm2xfgrbjrbrr3sa7vcs4-story.html [https://perma.cc/FJ4Z-Y6CG] (explaining that the first
Second Amendment sanctuary resolution appeared in early 2018 in Effingham, Illinois). Between 2010
and 2014, four states passed legislation claiming immunity from certain federal firearms regulations,
“essentially” making them “sanctuary state[s] pertaining to national gun regulation,” though the term
“sanctuary” was not used. See, e.g., Tim Kalinowski, The Interpretation of the Second Amendment as a
Collective Right Leads to a Federalism Issue, 43 S. ILL. U. L.J. 107, 113 (2018) (“The Kansas act then
essentially declares Kansas a sanctuary state pertaining to national gun regulation . . . .”).
37
Sabrina Siddiqui, The Democratic Blue Wave Was Real, GUARDIAN (Nov. 17, 2018),
https://www.theguardian.com/us-news/2018/nov/16/the-democratic-blue-wave-was-real
[https://perma.cc/9GP9-QVUP] (“Midterm elections proved that Republicans have only a tenuous hold
over the coalition that propelled Trump to the White House in 2016.”).
38
See Schneider, supra note 15; Lois Beckett, Virginia Democrats Won an Election. Gun Owners
Are Talking Civil War, GUARDIAN (Jan. 10, 2020), https://www.theguardian.com/us-
news/2020/jan/09/virginia-gun-control-second-amendment-civil-war [https://perma.cc/Y5GQ-AR3X].
39
Erin Powell, These Colorado Counties Have Declared Themselves ‘2nd Amendment Sanctuaries’
in Response to Red Flag Law, 9 NEWS (Jan. 3, 2020, 5:23 PM),
https://www.9news.com/article/news/local/next/these-colorado-counties-have-declared-themselves-
2nd-amendment-sanctuaries-as-red-flag-bill-progresses/73-a23bcba7-63c7-4a50-a26a-9e1e8a2b91ef/
[https://perma.cc/P984-GVN4].
40
Toscano, supra note 5; Nieves, supra note 11; Katherine Rosenberg-Douglas, Second Amendment
‘Sanctuary County’ Movement Expands as Organizers Take Aim at New Gun Laws, CHI. TRIB. (Apr. 17,
2019, 5:00 AM), https://www.chicagotribune.com/news/breaking/ct-met-second-amendment-sanctuary-
county-movement-illinois-20190416-story.html [https://perma.cc/R8BJ-A277].
41
Jim Hartman, Opinion, Nevada’s ‘Second Amendment Sanctuaries,’ NEV. APPEAL (Feb. 7, 2020),
https://www.nevadaappeal.com/news/opinion/jim-hartman-nevadas-second-amendment-sanctuaries/
[https://perma.cc/V7JC-FFGE]; see also Bethany Blankley, Nevada Sheriffs Express ‘Second Amendment
Sanctuary’ Sentiment, Non-Compliance with Gun Registration Law, CTR. SQUARE (Mar. 18, 2019),
https://www.thecentersquare.com/nevada/nevada-sheriffs-express-second-amendment-sanctuary-
sentiment-non-compliance-with-gun-registration-law/article_b6c50eee-49ac-11e9-abfd-
d39cec23c07b.html [https://perma.cc/53GY-VMED].
115:437 (2020) Second Amendment Sanctuaries
447
punctuated the end of the decade.
42
By way of illustration, on November 7,
2019, Campbell County became only the second Virginia locality to pass a
sanctuary resolution; by December 23, 2019, 102 counties, cities, and towns
in the state had declared themselves “Second Amendment Sanctuary
Jurisdictions.”
43
The language of these Virginia resolutions—and the responses they
generated during the hearings at which they were passed—signals an
entrenched commitment to resist any state gun-control measure. For
instance, Tazewell County’s Board of Supervisors unanimously passed “A
Resolution Promoting the Order of Militia Within Tazewell County,
Virginia” at a December 3, 2019 meeting in which the Board claimed its sole
right under the Virginia Constitution “to ‘order’ militia to the localities” as
justification for refusing to honor any gun-control measure.
44
Similarly, the
Culpeper County Sheriff pledged to deputize “thousands of our law-abiding
citizens” to skirt state and federal law.
45
And some proponents have
resurrected nullification and interposition, which advocates declining to
investigate, prosecute, or imprison based on violations of gun-control
measures as legitimate resistance tactics to protect what they view as
absolute Second Amendment rights.
46
Foreshadowing what is certain to be a
protracted legal battle, Virginia Attorney General Mark Herring responded
42
Virginia Has Become an Overnight Tidal Wave of Second Amendment Sanctuaries, VA. INST. PUB.
POL’Y (Dec. 26, 2019), https://virginiainstitute.org/virginia-has-become-an-overnight-tidal-wave-of-
second-amendment-sanctuaries/ [https://perma.cc/J5YV-7SZ3].
43
Id.
44
Jim Talbert, Tazewell County Becomes Second Amendment Sanctuary, Adds Militia Ordinance
During Widely Attended Meeting, BRISTOL HERALD COURIER (Dec. 3, 2019),
https://www.heraldcourier.com/news/tazewell-county-becomes-second-amendment-sanctuary-adds-
militia-ordinance-during/article_6a3d4e37-64f2-5365-9b71-7e4a694602e3.html [https://perma.cc/
L4UK-8SLG] (quoting county commissioners stating that Tazewell County will call up its local militia
“in the event that state or federal laws are passed violating the Second Amendment”); David Tripp,
Tazewell County VA, Board Approves 2nd Amendment Resolution, SANCTUARY CNTYS. (Dec. 3, 2019)
https://sanctuarycounties.com/2019/12/03/tazewell-county-va-board-approves-2nd-amendment-
resolution/ [https://perma.cc/E9B4-85NR] (containing text of resolution and minutes from meeting); see
also id. (“The County Administrator said, ‘The fundamental question was, do you want to say something
or do you want to do something?’”).
45
Associated Press, Virginia Sheriff: He’ll Deputize Residents if Gun Laws Pass, WBOC (Dec. 9,
2019, 1:07 PM), http://www.wboc.com/story/41427096/virginia-sheriff-hell-deputize-residents-if-gun-
laws-pass [https://perma.cc/A7LR-LUGL] (“I plan to properly screen and deputize thousands of our law-
abiding citizens to protect their constitutional right to own firearms.”).
46
David “Adam” McKelvey, A Framework for True 2nd Amendment Sanctuary, ROANOKE TIMES
(Nov. 27, 2019), https://www.roanoke.com/opinion/commentary/mckelvey-a-framework-for-true-nd-
amendment-sanctuary/article_700ee127-81a2-50b9-8c7a-234647a3c92e.html [https://perma.cc/73XL-
7NRP] (“Remember, a resolution, without tangible nullification, is simply a statement of opinion with no
teeth.”).
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
448
to these resolutions by declaring flatly that “when Virginia passes . . . gun
safety laws . . . they will be followed, they will be enforced.”
47
Further, at
least one Virginia lawmaker has formally requested an advisory opinion
from the state’s attorney general on the specific binding effect of these
resolutions.
48
Unfortunately, no such opinion—advisory or otherwise—would have
the benefit of legal scholarship for guidance. To date, no scholar has
addressed the issue of Second Amendment Sanctuaries.
49
Numerous scholars
have explored the nature of sanctuary cities with respect to immigration
policy,
50
others have examined the growing intrastate federalism dominating
recent local–state power struggles,
51
and at least one scholar has asserted the
propriety of localities retaining gun-regulation power as a matter of policy.
52
With this lack of scholarly discussion in mind, this Article explores the
specific, and in many ways unique, legal issues defining the Second
Amendment Sanctuary debate in 2020 and beyond.
I. SECOND AMENDMENT SANCTUARIES: A PRIMER
To understand the legal implications of Second Amendment
Sanctuaries, it is important to begin with a basic understanding of why and
how they have been adopted and what lessons can be drawn from similar
immigrant-sanctuary resistance efforts. This Part therefore provides a brief
overview of the policy choices driving the rise of Second Amendment
Sanctuaries, the purpose and scope of these various local resolutions, and the
47
Cameron Thompson, Attorney General’s Response to 2nd Amendment Sanctuary Resolutions:
“Gun Safety Laws Will Be Followed,” WTVR (Dec. 6, 2019, 11:18 AM), https://wtvr.com/2019/12/06/
attorney-general-virginia-2nd-amendment-sanctuary-01/ [https://perma.cc/V8LU-A82J].
48
Id.
49
A July 19, 2020 Lexis search for (“second amendment sanctuar!” or “gun sanctuar!”) yielded zero
case results and zero secondary materials results. An expanded Lexis search for (“second amendment”
w/p “sanctuar!” or “gun” w/p “sanctuar!”) yielded no relevant case results and only two scholarly articles
briefly mentioning firearms protectionist legislation. See Scharff, supra note 20, at 1501 (referencing a
2017 Florida appellate court decision “refus[ing] to reach the question” of whether a state “bar on the
‘promulgation’ of [local] ordinances that violate the state gun control preemption law . . . . w[as] valid”);
Kalinowski, supra note 36, at 113.
50
See generally Lasch et al., supra note 1, at 1704 (“[A] collaborative project authored by law
professors specializing in the intersection between immigration and criminal law . . . set[ting] forth the
central features of the Trump administration’s . . . campaign to ‘crack down’ on sanctuary cities.”).
51
Su, supra note 34, at 199–200; see also, e.g., Kenneth A. Stahl, Preemption, Federalism, and Local
Democracy, 44 FORDHAM URB. L.J. 133, 133 (2017) (exploring the role of federalism in mediating power
struggles between urban and rural areas, particularly in states where outsized rural influence and statewide
preemption campaigns have left cities with the “uncomfortable realization that they have no right to local
democracy”).
52
Blocher, supra note 23, at 85.
115:437 (2020) Second Amendment Sanctuaries
449
questions surrounding their viability as reflected in the immigrant-sanctuary-
city context.
A. The New Gun-Control Movement
For the last four decades, firearms legislation has been primarily
defined by statewide deregulation, interrupted only by occasional moments
of regulation that have not proved to be long-lasting. In 1988, forty states
temporarily outlawed or strictly regulated concealed carry of firearms in
public spaces; today, all fifty states allow such conduct, and forty-two do so
with little restriction.
53
In 1994, the federal assault weapons ban prohibited
the possession of nineteen types of military-style semiautomatic weapons
nationwide.
54
The ban expired in 2004, with only seven states enacting
replacement regulations since then.
55
During this time, the most significant change to gun regulation has been
whether state or local entities control. In 1980, virtually all firearms
regulation was local, reflecting a centuries-long tradition of allowing urban
and rural areas to tailor firearms laws to reflect their respective needs and
cultures.
56
Today, forty-three states have broad statewide preemption laws
prohibiting localities from enacting any firearms regulations,
57
due in large
part to concerted efforts by the National Rifle Association and other political
groups to eliminate gun regulations in large cities.
58
While this statewide approach to firearms regulation has not changed
over the last several decades, the regulations being considered have.
Following a recent surge in public support for targeted gun-control measures
and the election of Democratic governors in several states, legislation has
53
See Shawn E. Fields, Stop and Frisk in a Concealed Carry World, 93 WASH. L. REV. 1675, 1688–
90 (2018) (summarizing nationwide evolution of concealed carry legislation).
54
Public Safety and Recreational Firearms Use Protection Act, 18 U.S.C. §§ 921(a)(30)–(31),
922(v)–(w), 923(i), 924(c)(1) (2000) (repealed 2004); Harry A. Chernoff, Christopher M. Kelly & John
R. Kroger, The Politics of Crime, 33 HARV. J. ON LEGIS. 527, 550–51 (1996) (“[The law] banned the
manufacture, sale, or transfer of nineteen kinds of assault weapons.”).
55
John J. Phelan IV, The Assault Weapons Ban—Politics, the Second Amendment, and the Country’s
Continued Willingness to Sacrifice Innocent Lives for “Freedom,” 77 ALB. L. REV. 579, 579–80 & n.7
(2013) (“California, Connecticut, Hawaii, Maryland, Massachusetts, New Jersey, and New York have all
enacted some form of an assault weapons ban.”).
56
See Anthony P. Badaracco, Firearm Federalism, 65 N.Y.U. ANN. SURV. AM. L. 761, 762 (2010)
(“State and local governments have traditionally enjoyed a great deal of latitude in passing gun control
laws . . . .”); Blocher, supra note 23, at 120–21.
57
GIFFORDS L. CTR. TO PREVENT GUN VIOLENCE, supra note 18.
58
See Andrew D. Herz, Gun Crazy: Constitutional False Consciousness and Dereliction of Dialogic
Responsibility, 75 B.U. L. REV. 57, 150 n.423 (1995) (“Any hope of relying on local firearms regulation
has become less plausible since the NRA adopted a strategy . . . of convincing state legislatures to pass
firearms-preemption laws . . . .”).
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
450
been proposed to enact statewide universal background checks, assault
weapons bans, and so-called red flag laws authorizing temporary
confiscation of firearms from individuals judicially determined to be
dangerous.
59
Background checks and “dangerous and unusual”
60
arms bans
have been staples of the gun-control movement for decades.
61
That
legislation to implement these restrictions has gained broader bipartisan
support reflects less about the uniqueness of this regulatory moment than
about the long-lens, cyclical nature of gun regulation in this country.
However, “extreme risk” laws are different. The emergence of extreme
risk laws, which “permit courts to order that firearms be temporarily
removed from individuals who pose an imminent risk to themselves or
others,” is “arguably the most important current development in firearms
regulation.”
62
These laws allow law enforcement, mental health
professionals, or family members to petition the court for an ERPO that
would require respondents to surrender their firearms and refrain from
acquiring new ones.
63
Much like domestic violence protective orders,
petitioners can move for a ten-day ex parte ERPO, and if the court grants the
order, petitioners may seek a lengthier temporary ERPO, lasting up to one
year.
64
59
See Mel Leonor, Northam Administration Outlines Gun Control Measures It Backs Including
Assault Weapons Ban with Permits for Existing Owners, RICH. TIMES-DISPATCH (Jan. 9, 2020),
https://richmond.com/news/plus/northam-administration-outlines-gun-control-measures-releases-
proposed-definition-of-assault-weapon/article_3638cd2d-7f73-5b15-97cf-3ec8d915fc56.html
[https://perma.cc/3JWC-822Z] (outlining gun-control proposals of new Virginia governor); Joseph
Frydenlund, Colorado’s Proposed “Red Flag” Gun Bill: Extreme Risk Protection Orders, DENV. L. REV.
F. (July 28, 2019), https://www.denverlawreview.org/dlr-online-article/colorados-proposed-red-flag-
gun-bill-extreme-risk-protection-orders [https://permalink.cc/ADZ3-PGGR] (describing surge in
adoption of “red flag” laws). These proposals enjoy broad support by the democratic candidates for
president in 2020. Kevin Uhrmacher & Kevin Schaul, Where 2020 Democrats Stand on Gun Control,
WASH. POST (Apr. 8, 2020), https://www.washingtonpost.com/graphics/politics/policy-2020/gun-
control/ [https://perma.cc/PP2X-53L8] (“The candidates universally support requiring a background
check for every gun purchase and a federal ban on assault weapons. Most backed laws that allow courts
to take guns from mentally unfit individuals.”).
60
District of Columbia v. Heller, 554 U.S. 570, 627 (2008) (internal quotation marks omitted).
61
See, e.g., Allen Rostron, A New State Ice Age for Gun Policy, 10 HARV. L. & POL’Y REV. 327,
342–44 (2016) (discussing history of gun-control proposals since enactment of the Brady Act in 1993);
Josh Blackman & Shelby Baird, The Shooting Cycle, 46 CONN. L. REV. 1513, 1515, 1533–34 (2014)
(describing the familiar pattern of: a mass shooting, a temporary outcry for gun-control measures, and
then successful resistance to such measures).
62
Blocher & Charles, supra note 13, at 1.
63
See Williams, supra note 14; Redington v. State, 121 N.E.3d 1053, 1054 (Ind. Ct. App. 2019)
(describing the functioning of Indiana’s “‘red flag’ law”).
64
Bethany Stevens, Massachusetts Adopts “Red Flag” Law, 62 BOS. BAR J. 6, 7 (2018) (“[If the
judge finds] by a preponderance of the evidence that the respondent poses a risk[,] . . . . the judge must
issue an order for up to one year.”); see also Redington, 121 N.E.3d at 1053–54 (explaining that officers
115:437 (2020) Second Amendment Sanctuaries
451
Extreme risk laws have recently spread at nearly the same pace as the
gun sanctuary laws responding to them. Connecticut passed the first such
law in 1999,
65
but as of 2017, only five states had adopted anything “that
might be described as an extreme risk law.”
66
However, the mass murders at
Marjory Stoneman Douglas High School in Parkland, Florida on February
14, 2018, changed the regulatory landscape. Following intense political
debate, led largely by the teenage survivors of the Parkland shooting, over a
dozen states have adopted extreme risk laws, with eight, along with the
District of Columbia’s, being enacted after Parkland.
67
By the end of 2019,
as many as seventeen states and the District of Columbia had adopted some
version of an extreme risk law, reflecting one of the most tangible results of
the Parkland survivors’ advocacy.
68
These targeted measures enjoy broad support. “[A] March 2019
Quinnipiac poll reported that 93[%] of American voters support a bill that
would require ‘background checks for all gun buyers.’”
69
And “[a]n April
2018 poll found that 85[%] of registered voters support” extreme risk laws.
70
While national polls may not be illustrative of local attitudes in a decidedly
local debate over gun ownership, at least some recent state polls suggest that
strong majorities of voters in gun sanctuary jurisdictions support similar
returned a “cache of weapons” to a mentally ill man who had killed a police officer upon the expiration
of the extreme risk protection order “because they had no legal authority to retain them”).
65
Jason Hanna & Laura Ly, After the Parkland Massacre, More States Consider ‘Red Flag’ Gun
Bills, CNN (Mar. 7, 2018, 10:25 AM), https://www.cnn.com/2018/03/07/us/gun-extreme-risk-protection-
orders/index.html [https://perma.cc/9YMU-3VTN].
66
Blocher & Charles, supra note 13, at 8; Jesse Paul, Colorado’s “Red Flag” Gun Bill Makes Its
Debut. Here’s How It Compares to Other States., COLO. SUN (Feb. 14, 2019, 9:30 AM),
https://coloradosun.com/2019/02/14/colorado-red-flag-bill-2019/ [https://perma.cc/UU6J-JAHG]
(summarizing extreme risk legislation by state).
67
Hanna & Ly, supra note 65; Nick Wing & Melissa Jeltsen, Wave of ‘Red Flag’ Gun Laws Shows
Power of the Parkland Effect, HUFFPOST (June 16, 2018, 8:01 AM), https://www.huffpost.com/entry/
red-flag-laws-parkland-florida-massacre_n_5b24099fe4b056b22639d8cb [https://perma.cc/L4LJ-YEF8]
(“In the four months since a mass shooting at a Parkland, Florida, high school, the number of states with
so-called red flag laws has doubled . . . .”); see also Frydenlund, supra note 59, at 84 (“States with ‘red
flag’ gun laws similar to the [Colorado] [b]ill include: Washington, Oregon, California, Illinois, Indiana,
New York, Vermont, Massachusetts, Connecticut, New Jersey, Rhode Island, Delaware, Washington
D.C., and Maryland.”).
68
Grace Segers, What Are “Red Flag” Laws, and Which States Have Implemented Them?, CBS
NEWS (Aug. 9, 2019, 10:42 AM), https://www.cbsnews.com/news/what-are-red-flag-laws-and-which-
states-have-implemented-them/ [https://perma.cc/66Y6-TGQK] (describing the rise of “red flag” laws
that have attracted bipartisan support in several states); Williams, supra note 14.
69
Toscano, supra note 5.
70
Id.; see also Paterson, supra note 13 (“77% of Americans surveyed support family-initiated
ERPOs[] . . . . There is broad support among Republicans and gun owners for these types of laws . . . .”).
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
452
measures.
71
Critics of extreme risk laws echo long-standing criticisms of civil
protection order mechanisms more generally: they authorize significant
liberty and property deprivations without sufficient due process.
72
While
petitioners bear the burden of proof, ranging from “probable cause” to “clear
and convincing evidence,”
73
this comparatively lower burden rankles many
local officials charged with enforcing ERPOs.
74
Others raise concerns over
the justification for the prospective relief offered by ERPOs: that courts can
fairly and accurately predict the future “risk” of a respondent.
75
These due
71
Toscano, supra note 5 (summarizing poll results of Virginians in 2019, 84% of whom “favor
universal background checks, and 74[% of whom] support” red flag laws); see also Domenico Montanaro,
Americans Largely Support Gun Restrictions to “Do Something” About Gun Violence, NPR (Aug. 10,
2019, 7:00 AM), https://www.npr.org/2019/08/10/749792493/americans-largely-support-gun-
restrictions-to-do-something-about-gun-violence [https://perma.cc/4BEY-NBFM] (“In Colorado, a
Keating Research survey found 81% in favor of red flag laws.”). While statewide polling certainly will
not correlate with attitudes in individual localities, such overwhelming support in states like Virginia and
Colorado—where virtually every local jurisdiction has passed a form of sanctuary resolution—suggests
at least some incongruence with these resolutions and the opinions of the constituents these resolutions
purport to protect.
72
See Frydenlund, supra note 59, at 85 (“Opponents . . . contend that the[y] violate[] the
Respondent’s due process protections.”); see also Shawn E. Fields, Debunking the Stranger-in-the-
Bushes Myth: The Case for Sexual Assault Protection Orders, 2017 WIS. L. REV. 429, 448, 456–57, 470,
479, 484 (summarizing due process concerns in other civil protection order contexts, including domestic
violence, civil commitment, and sexual violence).
73
See, e.g., Jacob Sullum, Virginia’s Pending ‘Red Flag’ Law Includes Improvements but Still Falls
Short of Due Process, REASON (Jan. 29, 2020, 9:00 AM), https://reason.com/2020/01/29/virginias-
pending-red-flag-law-includes-improvements-but-still-falls-short-of-due-process/ [https://perma.cc/
Q8QU-TTYB] (noting variance in burdens at the temporary and permanent restraining order stage by
state, including “probable cause,” “preponderance of the evidence,” and “‘clear and convincing evidence’
that the respondent ‘poses a substantial risk . . . in the near future’”).
74
See Leah Anaya, NM Sheriffs Force Lawmakers to Abandon Red Flag Bill: We Refuse to Enforce
Unconstitutional Laws, LAW ENF’T TODAY (Jan. 19, 2020), https://www.lawenforcementtoday.com/nm-
sheriffs-force-lawmakers-to-abandon-red-flag-bill-we-refuse-to-enforce-unconstitutional-laws/
[https://perma.cc/E99R-EA3T] (quoting Sheriff Robert Sheppard: “We have a duty to follow the
Constitution and this bill violates due process, because there is no hearing before the government
confiscates possessions.”); Scott McLean & Sarah Weisfeldt, This Colorado Sheriff Is Willing to Go to
Jail Rather than Enforce a Proposed Gun Law, CNN (Mar. 31, 2019, 2:11 AM),
https://www.cnn.com/2019/03/31/us/colorado-red-flag-gun-law/index.html [https://perma.cc/VBL3-
XXNK] (discussing the “low” preponderance of the evidence standard, and quoting a sheriff with
concerns about the law who admitted “he would still never support the bill, even with amendments”).
75
Jacob Sullum, Colorado’s New “Red Flag” Law Illustrates the Pitfalls of Disarming People Based
on Their Future Behavior, REASON (Apr. 29, 2019, 2:05 PM), https://reason.com/2019/04/29/colorados-
new-red-flag-law-illustrates-the-pitfalls-of-disarming-people-based-on-their-future-behavior/
[https://perma.cc/PP56-6QJC]; see also Shawn E. Fields, Sexual Violence and Future Harm: Lessons
from Asylum Law, 2020 UTAH L. REV. 177, 189, 203 (discussing tension between the need for flexible
protection order processes to prevent “grave future harm” and the difficulty in predicting future behavior);
cf. Lawlor v. Zook, 909 F.3d 614, 628 (4th Cir. 2018) (“Consideration of a defendant’s past conduct as
indicative of his probable future behavior is an inevitable and not undesirable element of criminal
sentencing[] . . . .” (internal quotation marks omitted)).
115:437 (2020) Second Amendment Sanctuaries
453
process concerns merit special attention when the proposed remedy involves
the deprivation of a fundamental constitutional right.
76
Gun-rights advocates also oppose these laws on the basis that they
violate the Second Amendment as defined in Heller.
77
Although litigation
remains rare to date, the Appellate Court of Connecticut stated in Hope v.
State
78
that its state’s extreme risk law “does not implicate the [S]econd
[A]mendment, as it does not restrict the right of law-abiding, responsible
citizens to use arms in defense of their homes.”
79
Similarly, in Redington v.
State,
80
the Indiana Court of Appeals found that laws authorizing a temporary
seizure of firearms based on clear and convincing evidence that someone
presented a “risk of personal injury to [themselves] or [others]” did not
“place a material burden on [the] right to bear arms.”
81
B. Gun-Rights Localism
While the Second Amendment Sanctuary movement exists in large
measure as a response to the perceived Second Amendment violations that
extreme risk laws present, the passage of broad statewide gun-control
measures also has generated structural criticism by local-government
advocates (gun-rights activists included) who decry this latest attack on local
autonomy.
82
This return to gun-rights localism harkens back to the first seven
decades of the twentieth century, when firearms laws, both regulatory and
76
Fields, supra note 72, at 488–89 (arguing for a higher burden of proof to authorize an additional
protection order remedy if that remedy infringes upon a fundamental constitutional right).
77
District of Columbia v. Heller, 554 U.S. 570, 626, 630 (2008) (recognizing individual right to keep
and bear arms inside one’s home for “core” purpose of self-defense, while recognizing traditional
restriction on possession by felons). Second Amendment challenges to extreme risk laws claim that they
impose absolute restrictions on this core right on nonfelons. See, e.g., Redington v. State, 121 N.E.3d
1053, 1056 (Ind. Ct. App. 2019) (appellant arguing that, without a conviction, determination that “he was
‘dangerous’ was insufficient to order retention of his firearms”).
78
133 A.3d 519 (Conn. App. Ct. 2016).
79
Id. at 524.
80
121 N.E.3d 1053.
81
Id. at 1056, 1061.
82
Editorial, Could This Bill Banning ‘Red Flag’ Gun Laws Make Kansas a Sanctuary State for
Danger?, KAN. CITY STAR (Dec. 26, 2019, 10:04 AM),
https://www.kansascity.com/opinion/editorials/article238719858.html [https://perma.cc/ZPE7-3KZ3]
(discussing a state bill that would ban “the enforcement of any federal ‘red flag’ law”); Scott Pelley, A
Look at Red Flag Laws and the Battle over One in Colorado, CBS NEWS (Nov. 17, 2019),
https://www.cbsnews.com/news/red-flag-gun-laws-a-standoff-in-colorado-60-minutes-2019-11-17/
[https://perma.cc/CRY3-UXH9] (noting that nearly half of Colorado’s counties declared themselves
sanctuaries in direct response to introduction of red flag legislation).
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
454
deregulatory, were traditionally passed at the local level.
83
This “firearm
localism” was gradually replaced in the early 1980s by an NRA-led push for
statewide deregulation.
84
That push accelerated following the Heller decision
in 2008, the election of President Barack Obama, and the proliferation of
unfounded conspiracy theories about gun-confiscation programs.
85
The
effort to “constitutionalize” gun rights at the state level led to broad
legislation removing restrictions on public concealed and open-carry
allowances, as well as licensing and registration requirements.
86
These laws
had the downward effect of invalidating robust gun-control initiatives passed
in major urban areas like Chicago and Philadelphia.
87
During the Obama Administration, four states also passed defensive
upward legislation, declaring certain firearms and accessories exempt from
federal regulation under the Ninth and Tenth Amendments and beyond
Congress’s interstate commerce power.
88
But the shifting statewide focus on
83
McDonald v. City of Chicago, 561 U.S. 742, 927 (2010) (Breyer, J., dissenting) (“It is . . .
unsurprising that States and local communities have historically differed about the need for gun
regulation . . . . Nor is it surprising that ‘primarily, and historically,’ the law has treated the exercise of
police powers, including gun control, as ‘matter[s] of local concern.’” (quoting Medtronic, Inc. v. Lohr,
518 U.S. 470, 475 (1996) (alteration in original))); see also Blocher, supra note 23, at 112–21 (examining
the history of firearms regulation).
84
See Herz, supra note 58, at 150; see also Bridgeville Rifle & Pistol Club, Ltd. v. Small, 176 A.3d
632, 684 n.134 (Del. 2017) (“The NRA argues preemption laws are necessary because varying local laws
create confusion.”); Joe Palazzolo, Gun Rights Groups Target Local Rules, WALL ST. J. (Feb. 6, 2013,
9:23 AM), https://blogs.wsj.com/law/2013/02/06/how-gun-rights-groups-suppressed-local-firearm-
regulations/ [https://perma.cc/XCB4-DN4V] (noting that the NRA succeeded in its preemption push,
increasing the number of states with laws preempting local regulation from seven in 1979 to forty-five in
2005).
85
Toscano, supra note 5 (“During the Obama years, the manufacture and purchase of firearms
increased in dramatic numbers in part due to unfounded fears that the government would try to take away
guns.”).
86
See Fields, supra note 53, at 1688–90.
87
Dahleen Glanton, The Truth—and Lies—About Chicago’s Gun Laws, CHI. TRIB. (Oct. 3, 2017,
3:20 PM), https://www.chicagotribune.com/columns/dahleen-glanton/ct-met-gun-control-chicago-
dahleen-glanton-20171003-story.html [https://perma.cc/Z5VX-5MQ9] (noting that Chicago once
“proudly” had the strictest gun-control laws in the country, but the Illinois General Assembly passed laws
watering down Chicago ordinances); Tricia L. Nadolny, Frustrated Philadelphia Mayor Calls for Gun
Control. Here’s Why It Hasn’t Happened in His City., USA TODAY (Aug. 16, 2019, 3:42 PM),
https://www.usatoday.com/story/news/2019/08/16/philadelphia-mayor-jim-kenney-gun-control-
preemption-laws/2031870001/ [https://perma.cc/DRF7-HASM] (explaining that Pennsylvania adopted
preemption legislation in 1993 following laws banning assault weapons that were passed in Philadelphia
and Pittsburgh).
88
Idaho Federal Firearm, Magazine and Register Ban Enforcement Act, S.B. 1332, 62d Leg., 2d
Reg. Sess. (Idaho 2014) (prohibiting most federal regulation of firearms in Idaho); KAN. STAT. ANN.
§§ 50-1201 to -1211 (2018) (Second Amendment Protection Act) (specifying certain categories of
firearms “exempt” from regulation by the federal government); MONT. CODE ANN. § 30-20-104 (2018)
(Montana Firearms Freedom Act) (declaring the manufacture and sale of certain intrastate firearms “not
115:437 (2020) Second Amendment Sanctuaries
455
gun control in 2019, particularly the passage of extreme risk laws, has
prompted advocacy for a return to traditional gun-rights localism in the form
of gun-sanctuary resolutions.
This shifting statewide focus on gun control and corresponding
“Second Amendment sanctuaries explo[sion] onto the national scene” began
in “early 2019 after newly elected Democratic Gov[ernor] J.B. Pritzker
pledged to pass gun safety measures in Illinois.”
89
David Campbell, vice
chairman of the Effingham County Board in Illinois, coined the term
“Second Amendment Sanctuary” when he proposed a resolution “opposing
the passage of” five gun-control measures pending before the Illinois
General Assembly, as well as “any bill where the . . . Assembly desires to
restrict the [i]ndividual right of [U.S.] citizens as protected by the Second
Amendment of the United States Constitution.”
90
Within months, 64 of the
state’s 102 counties passed sanctuary resolutions.
91
Other state localities soon followed suit. Prior to 2019, Second
Amendment Sanctuaries did not exist; as of early 2020, local jurisdictions in
at least twenty states had passed resolutions declaring an intent not to enforce
statewide gun regulation.
92
For instance, after New Mexico expanded
background checks in 2019, thirty of thirty-three counties declared
themselves Second Amendment Sanctuaries.
93
The numbers continue to
grow, but as of January 14, 2020, over 400 jurisdictions have declared
subject to federal law”); WYO. STAT. ANN. § 6-8-406 (2018) (claiming “the sole and exclusive right” for
Wyoming to regulate its gun laws because such powers were not “expressly delegated to the United States
of America”).
89
Toscano, supra note 5.
90
Res. of the Cnty. Bd. of Cnty. of Effingham, Ill. (Ill. 2018),
https://media.illinoishomepage.net/nxsglobal/illinoishomepage/document_dev/2018/04/11/Effingham%
20County%20Firearms%20Rights%20Resolution_1523484265419_39675137_ver1.0.pdf
[https://perma.cc/N5VK-MBNU]; Denise Lavoie, Gun Owners Seek Second Amendment Sanctuary
Status in Local Communities, S.F. CHRON. (Dec. 21, 2019),
https://www.sfchronicle.com/nation/article/Gun-owners-seek-Second-Amendment-sanctuary-status-
14924224.php [https://perma.cc/J44D-CWKF] (“Campbell said he and a local prosecutor chose the word
‘sanctuary’ as a swipe at Democratic leaders who used the word to describe their refusal to cooperate
with federal immigration enforcement in the sanctuary cities movement. ‘We thought, “Well, if they can
do that, why can’t we make Effingham County a sanctuary for legal, law-abiding gun owners?”’”).
91
Toscano, supra note 5.
92
Editorial, 2nd Amendment Sanctuaries Are Acts of Faithlessness in Government, L.A. TIMES (Jan.
19, 2020, 3:00 AM), https://www.latimes.com/opinion/story/2020-01-19/2nd-amendment-sanctuaries-
richmond-charlottesville-militias [https://perma.cc/9UAX-7USC].
93
Nieves, supra note 11.
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
456
themselves gun sanctuaries, including a majority of counties in Colorado,
Illinois, Nevada, New Mexico, and Virginia.
94
Second Amendment Sanctuary resolutions take various forms, ranging
from symbolic expressions of discontent to specific declarations of intent to
engage in passive or active resistance to statewide gun-control measures. In
some states, counties have taken the “purely symbolic” gesture of forwarding
a resolution to the state legislature to register disapproval with a pending or
passed gun law.
95
This kind of collective protest is “perfectly consistent with
our traditions as a democracy.”
96
But contradictory messaging from local
officials passing these resolutions calls into question whether these
resolutions will become more than symbolic in practice.
97
Other resolutions actively endorse the type of passive noncooperation
seen in immigrant-sanctuary resolutions. For example, in Cumberland
County, Virginia, a Second Amendment Sanctuary resolution declares that
local officials will neither personally enforce nor use taxpayer funds to
enforce certain statewide gun regulations.
98
State agencies are free to enter
the locality and enforce state law, but local officials will not participate.
99
94
Jennifer Mascia, Second Amendment Sanctuaries, Explained, THE TRACE (Jan. 14, 2020),
https://www.thetrace.org/2020/01/second-amendment-sanctuary-movement/ [https://perma.cc/2CRA-
LG5W].
95
Brittany Crocker, Blount County Becomes ‘Second Amendment Sanctuary,’ Second in Tennessee,
KNOX NEWS (May 17, 2019, 1:28 PM), https://www.knoxnews.com/story/news/2019/05/
17/blount-county-now-tennessee-second-amendment-sanctuary/3704188002/ [https://perma.cc/YW43-
ZMVZ] (“Blount County ninth district commissioner Steve Mikels, who sponsored the sanctuary county
bill, said the resolution is a purely symbolic statement.”); Rob Jennings, N.J. Town Declares Itself a
Sanctuary for 2nd Amendment. “We’re Gun-Friendly.,” NJ.COM (Dec. 13, 2019),
https://www.nj.com/passaic-county/2019/12/were-a-gun-friendly-community-town-declares-itself-a-
sanctuary-for-2nd-amendment.html [https://perma.cc/3UQX-QKRD] (describing the “non-binding
resolution” as a “provocative designation [that] is purely symbolic”).
96
Toscano, supra note 5 (Virginia legislator, the article’s author, opposing sanctuary jurisdictions
but acknowledging that “no one should oppose the rights of citizens and their representatives to speak
their minds”).
97
For example, Washington County, Virginia Board of Supervisors Chairman Saul Hernandez said
that his county’s sanctuary resolution was intended as a symbolic message about rural Virginians, but
later said the Board would oppose the use of any taxpayer funds to enforce state gun-control measures.
Angelique Arintok, Washington County, Va. Declares Itself as a 2nd Amendment Sanctuary, WCYB
(Nov. 26, 2019), https://wcyb.com/news/local/washington-county-va-declares-itself-as-a-2nd-
amendment-sanctuary [https://perma.cc/HV7C-ENHR].
98
Alexa Massey, Sanctuary Resolution Adopted, FARMVILLE HERALD (Dec. 12, 2019, 5:17 PM),
https://www.farmvilleherald.com/2019/12/sanctuary-resolution-adopted/ [https://perma.cc/2ATM-
4BEF] (“That the Cumberland Board of Supervisors hereby expresses its intent that public funds of the
county not be used to restrict the Second Amendment rights of the citizens of Cumberland County, or to
aid federal or state agencies in the restriction of said rights . . . .”).
99
Associated Press, supra note 10 (“The counties are saying, ‘This stuff is unconstitutional. We don’t
want it, we don’t want to enforce it, and in most cases, we won’t enforce it.’”).
115:437 (2020) Second Amendment Sanctuaries
457
Still other local resolutions explicitly require affirmative actions by the
local government to thwart state enactments. Several counties have declared
their intent to use public money to mount legal defenses on behalf of local
authorities sued or arrested for refusing to enforce state gun laws.
100
And at
least two jurisdictions have taken a more confrontational approach,
threatening to erect local regulatory schemes designed to affirmatively
impede state legislation. In Tazewell County, Virginia, the county
administrator defended his such resolution by explaining that he was
“‘ordering’ the militia [to the county] by making sure everyone can own a
weapon.”
101
In Culpeper County, Virginia, the sheriff claimed that his
county’s sanctuary resolution authorized him to deputize “thousands of our
law-abiding citizens” so they can own firearms.
102
Such proclamations—
backed by promises to uphold the Constitution as “constitutional officers”
and to go to jail if necessary—amount to affirmative regulatory schemes at
odds with passed or proposed state legislation that arguably preempt such
local schemes.
103
The passion of the local electorate for these resolutions has only
matched the strident comments of local officials, as shown in reports of
packed county supervisor meetings across the country.
104
Deep skepticism of
outside gun-control influence punctuates many county hearings, where
100
Kerry Picket, Sheriffs May Go to Jail to Protect Second Amendment Sanctuaries, Kentucky
Congressman Says, WASH. EXAM’R (Jan. 2, 2020, 12:01 AM),
https://www.washingtonexaminer.com/news/sheriffs-may-go-to-jail-to-protect-second-amendment-
sanctuaries-congressman-says [https://perma.cc/4R9V-JXJJ] (discussing Kentucky state representative
citing the local government of Weld County, Colorado voting that it would “fund [the sheriff’s] legal fees
should he end up in a protracted legal battle” by defying the state’s extreme risk laws).
101
Toscano, supra note 5 (“Article I, Section 13, of the Constitution of Virginia reserves the right to
‘order’ militia to the localities. Therefore, counties, not the state, determine what types of arms may be
carried into their territory and by whom.”); see also Murry Lee, Tazewell County Board of Supervisors
Passes Resolution to Emphasize Right to Militia, WJHL (Dec. 10, 2019, 11:12 AM),
https://www.wjhl.com/news/local/tazewell-county-board-of-supervisors-passes-resolution-to-
emphasize-right-to-militia/ [https://perma.cc/EGT8-JDT2] (noting that “the resolution allocates funding
from the county budget for the purpose of funding and maintaining a well-regulated militia”).
102
See Virginia Sheriff: He’ll Deputize Residents If Gun Laws Pass, ASSOC. PRESS (Dec. 9, 2019),
https://apnews.com/08deeca65bb78ffcc8ff9a903977b817 [https://perma.cc/N957-L2QG] (quoting
Sheriff Scott Jenkins’s Facebook post: “Every Sheriff and Commonwealth Attorney in Virginia will see
the consequences if our General Assembly passes further unnecessary gun restrictions.”).
103
See Toscano, supra note 5 (“[For gun sanctuaries,] the goal is to prevent enforcement of state law
that the jurisdiction (not a court) deems unconstitutional.”).
104
See, e.g., Associated Press, supra note 10; Josh Reyes, Packed City Hall Calls for Newport News
to Be Second Amendment Sanctuary, DAILY PRESS (Dec. 11, 2019, 8:33 AM),
https://www.dailypress.com/government/local/dp-nw-newport-news-second-amendment-sanctuary-
city-council-20191211-bd7vykc5nbe6nnxyxxldadiwba-story.html [https://perma.cc/YL4W-SPMD]
(describing the Newport News City Council chambers as “overflowing . . . with people sporting ‘guns
save lives’ stickers and pushing for the council to declare the city a Second Amendment sanctuary”).
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
458
resolutions are passed with unanimous support. For instance, in Rockingham
County, a rural Virginia county on the West Virginia border, over 3,000
people attended a meeting at which the county Board of Supervisors
unanimously declared itself a gun sanctuary jurisdiction.
105
As one county
supervisor declared at the meeting, “There are clearly thousands of patriotic
citizens in Virginia who are well-armed and well-trained, and will resist in
an organised attempt by Washington to violate their Second Amendment
rights.”
106
Such passion reflects not just the intensity of the gun debate, but
also the increasing fault lines between urban and rural areas.
107
America’s
gun culture has always resided in “predominantly rural and small town[s],”
which remain skeptical of gun control and view “[their] enemies [as]
predominantly urban.”
108
This disproportionately rural gun culture—where
56% of rural residents own a firearm compared to just 29% of urban
residents
109
—stems not only from differentiating recreational uses for
firearms, but also from “the need for rural citizens to supplement diffuse law
enforcement agencies” that are less able to respond promptly to emergencies
in sparsely populated areas.
110
Gun-rights activists’ anti-urban sentiments traverse the country. For
instance, after New York State enacted the SAFE Act, a comprehensive gun-
control measure that imposed an expanded assault weapons ban and required
universal background checks on gun purchases, among other regulations,
“sheriffs in upstate [rural] communities revolted, claiming that the law was
105
Calvin Pynn, Rockingham Joins Counties Declaring 2nd Amendment ‘Sanctuary,’ WMRA (Dec.
12, 2019), https://www.wmra.org/post/rockingham-joins-counties-declaring-2nd-amendment-sanctuary
[https://perma.cc/2QDE-CTPP].
106
US: Second Amendment Sanctuaries Are Exploding, FREE W. MEDIA (Dec. 15, 2019, 5:05 AM),
https://freewestmedia.com/2019/12/15/us-second-amendment-sanctuaries-are-exploding/ [https://perma.
cc/ZT26-A85L].
107
See, e.g., Stahl, supra note 51, at 158 (describing “increasingly uncompromising . . . zero-sum
contests in which either urban or rural culture will decisively win out over the other”); Blocher, supra
note 23, at 103–04 (examining differences in urban and rural gun cultures); Luke A. Boso, Rural
Resentment and LGBTQ Equality, 71 FLA. L. REV. 919, 920–21 (2019) (describing “strong geographic
component” in same-sex marriage debate).
108
See DAVID C. WILLIAMS, THE MYTHIC MEANINGS OF THE SECOND AMENDMENT: TAMING
POLITICAL VIOLENCE IN A CONSTITUTIONAL REPUBLIC 170 (2003).
109
See Carl T. Bogus, Gun Control and America’s Cities: Public Policy and Politics, 1 ALB. GOV’T
L. REV. 440, 464 (2008) (citing a 2005 Gallup poll); Ruth Igielnik, Rural and Urban Gun Owners Have
Different Experiences, Views on Gun Policy, PEW RSCH. CTR. (July 10, 2017),
https://www.pewresearch.org/fact-tank/2017/07/10/rural-and-urban-gun-owners-have-different-
experiences-views-on-gun-policy/ [https://perma.cc/7VWN-8MLE] (citing 2017 study finding that 58%
of rural residents have a gun of their own compared to 29% of urban residents).
110
Erik Luna, The .22 Caliber Rorschach Test, 39 HOUS. L. REV. 53, 78–82 (2002).
115:437 (2020) Second Amendment Sanctuaries
459
motivated by downstate [urban] interests in and around New York City.”
111
But this growing geographical fault line cuts in both directions. When the
Pennsylvania state legislature preempted local cities from enacting sweeping
gun-control legislation, “local [urban] leaders in Philadelphia and
Pittsburgh” immediately attacked rural communities for attempting to
legislate for them.
112
During this wave of gun-control legislation, Virginia has become
ground zero for the Second Amendment Sanctuary movement in large part
due to its rapidly changing urban–rural demographics. Home to the
“headquarters of the National Rifle Association[], lawmakers in both parties
have traditionally supported gun rights” in Virginia.
113
But, in recent years,
Democrats have backed tighter restrictions on guns as the state’s changing
electorate allowed for gun-control legislation to become politically
attainable.
Since 1990, this once reliably red state has seen a 38% population
growth, the vast majority of it in metropolitan Richmond and the northern
Virginia suburbs of Washington, D.C.
114
These “new Virginians,” who are
increasingly diverse and predominantly liberal, have wrested statewide
control from the once-powerful rural western and southern regions of the
state.
115
The state voted for Barack Obama in 2008 and 2012, voted for
Hillary Clinton in 2016, has not elected a Republican senator since 2002, and
in 2019 returned Democrats to full power in both legislative houses and the
111
Su, supra note 34, at 204; see also Thomas Kaplan, Cuomo’s Gun Law Plays Well Downstate but
Alienates Upstate, N.Y. TIMES (Oct. 24, 2014), https://www.nytimes.com/2014/10/25/nyregion/with-
gun-act-cuomo-alienates-upstate-new-york-constituency.html [https://perma.cc/M6X2-GL7K]; Mark
Weiner, SAFE Act Reloaded: NY Decides 8 Gun-Control Laws; Here’s What Could Change,
SYRACUSE.COM (Sept. 26, 2019), https://www.syracuse.com/news/g66l-2019/01/b918a7b951814/safe-
act-reloaded-ny-decides-8-guncontrol-laws-heres-what-could-change.html [https://perma.cc/6EDG-
BMNJ] (summarizing 2019 amendments to law).
112
Su, supra note 34, at 204 (quoting LISA L. MILLER, THE PERILS OF FEDERALISM: RACE,
POVERTY, AND THE POLITICS OF CRIME CONTROL 4 (2008) (quoting local leader from Philadelphia: “I’m
not going to continue to allow some state legislator from Lackawanna County or East Giblip County to
tell us what we can do in the City of Philadelphia.” (internal quotation marks omitted))).
113
Denise Lavoie, Second Amendment Sanctuary Push Aims to Defy New Gun Laws, RICH. FREE
PRESS (Jan. 2, 2020, 6:00 AM), http://www.richmondfreepress.com/news/2020/jan/02/second-
amendment-sanctuary-push-aims-defy-new-gun-/ [https://perma.cc/QT2H-53K5].
114
Sabrina Tavernise & Robert Gebeloff, How Voters Turned Virginia from Deep Red to Solid Blue,
N.Y. TIMES (Nov. 9, 2019), https://www.nytimes.com/2019/11/09/us/virginia-elections-democrats-
republicans.html [https://perma.cc/JP78-4YFP].
115
Id. (“The influx of immigrants and their U.S.-born children, the spread of high-density suburbia
and the growth of higher education all tilt the field toward the Democrats.”).
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
460
governorship for the first time since 1993.
116
This Democratic resurgence
was tied in large part to a political stalemate on gun-control proposals
following a mass shooting at a Virginia Beach municipal building in May
2019 that left twelve people dead.
117
Democratic Governor Ralph Northam
called a special legislative session after the mass shooting, in which gun-
control advocates proposed “universal background checks, assault weapon
bans and red flag laws.”
118
The meeting not only failed to produce legislation
but also was shut down by Republicans “after just 90 minutes.”
119
The
resulting Democratic “blue wave” in November’s election was widely seen
in rural parts of the state as a rebuke to their gun culture.
120
Across the nation, nearly all sanctuary resolutions drafted in response
to the Democratic blue wave declare an absolute right not to enforce any law
that “infringe[s] upon the inalienable rights granted by the Second
Amendment”—“the Right of the People to keep and bear arms.”
121
But, of
course, that assumes the answer to the central question: Do universal
background checks, assault weapons bans, and extreme risk laws violate the
Second Amendment? Although Part IV discusses those questions in more
detail, the answers may be irrelevant to the extent that sanctuary resolutions
simply decline to enforce superior government legislation, regardless of their
legality. The question then becomes: When can subordinate local
jurisdictions declare themselves sanctuaries, immune from enforcement
responsibilities? To help answer that question, a comparison of immigration
and gun sanctuaries is in order.
116
Presidential Elections: 2008–2016, VA. DEP’T OF ELECTIONS, https://historical.elections.
virginia.gov/elections/search/year_from:2008/year_to:2016/office_id:1 [https://perma.cc/SA62-7RV5];
U.S. Senate Elections: 2000–2016, VA. DEP’T OF ELECTIONS,
https://historical.elections.virginia.gov/elections/search/year_from:2000/year_to:2016/office_id:6/stage:
General/show_details:1/enlarge_data_visualizations:1 [https://perma.cc/U7RC-P37G]; see Eric Bradner
& Ryan Nobles, Democrats Will Control Virginia Government for the First Time in More Than Two
Decades, CNN (Nov. 6, 2019, 9:47 AM), https://www.cnn.com/2019/11/05/politics/virginia-election-
democrats-control/index.html [https://perma.cc/GV3R-72GG] (“Democrats will win majorities in
Virginia’s House and Senate on Tuesday . . . giving the party full control of the state’s government for
the first time in more than two decades.”).
117
Matt Cohen, Disarming the NRA: How Guns Flipped Virginia Blue, MOTHER JONES (Jan./Feb.
2020) https://www.motherjones.com/politics/2019/11/disarming-the-nra-how-guns-flipped-virginia-
blue/ [https://perma.cc/C4WN-KG5W] (describing the Virginia Beach shooting as “a tipping point” for
mobilizing support for gun-control laws).
118
Lavoie, supra note 113.
119
Id.
120
See, e.g., Joshua Gillem, Opinion, The Making of a Revolution Is Well Underway,
CONCEALEDCARRY.COM (Dec. 11, 2019), https://www.concealedcarry.com/opinion/making-revolution-
well-underway [https://perma.cc/5FNU-8267] (predicting, as a gun-rights activist, a mass uprising in
response to “blue wave . . . gun control”).
121
See, e.g., Res. of the Cnty. Bd. of the Cnty. of Effingham, Ill., supra note 90.
115:437 (2020) Second Amendment Sanctuaries
461
C. Sanctuaries Compared
Debate over federal immigration policies has increasingly focused on
the proper role of state and local governments in assisting with federal
enforcement.
122
Within the immigration debate, the word “sanctuary” has
become a common shorthand for disagreement with and resistance to
enforcement of federal immigration laws. But while the term effectively
communicates a broad set of beliefs about a polarizing issue, the question
scholars have continually asked for over a decade remains relevant: “What
precisely is a sanctuary?”
123
In old English law, a sanctuary was “a consecrated place which had
certain privileges annexed to it, and to which offenders were accustomed to
resort for refuge, because they could not be arrested there, nor the laws be
executed.”
124
This definition found its expression in the United States
sanctuary debate during the early sanctuary resistance movement in the
1980s, when American religious leaders challenged the federal
government’s refusal to grant asylum to Central American refugees fleeing
U.S.-backed civil unrest in El Salvador and Guatemala.
125
Minister John Fife
famously told Attorney General William Smith in a letter that “the Southside
United Presbyterian Church will publicly violate the Immigration and
Nationality Act” and “will not cease to extend the sanctuary of the church to
undocumented people from Central America,” ushering in a decades-long
era of churches and other “consecrated place[s]” protecting undocumented
immigrants from immigration enforcement officials.
126
Early city sanctuary ordinances appeared in San Francisco and Davis,
California in 1985 and 1986.
127
These symbolic resolutions sought to create
122
See Allan Colbern, Melanie Amoroso-Pohl & Courtney Gutiérrez, Contextualizing Sanctuary
Policy Development in the United States: Conceptual and Constitutional Underpinnings, 1979 to 2018,
46 FORDHAM URB. L.J. 489, 490 (2019) (“Sanctuary policies are considered among the most contentious
feature of today’s immigration federalism debates . . . . the term ‘sanctuary’ is . . . highly contested and
nuanced in the academic setting and political arena . . . .” (citations omitted)).
123
See Villazor & Gulasekaram, supra note 4, at 134, 150–51.
124
Sanctuary, BLACK’S LAW DICTIONARY (6th ed. 1990).
125
See Barbara Bezdek, Religious Outlaws: Narratives of Legality and the Politics of Citizen
Interpretation, 62 TENN. L. REV. 899, 904–05, 917 (1995) (exploring the role of religious leaders in the
1980s immigrant civil rights movement). See generally ROBERT TOMSHO, THE AMERICAN SANCTUARY
MOVEMENT (1987) (providing contemporary historical account).
126
HILARY CUNNINGHAM, GOD AND CAESAR AT THE RIO GRANDE, at xi (1995); see also United
States v. Aguilar, 883 F.2d 662, 668–71 (9th Cir. 1989) (describing activities of Fife and others to assist
the sanctuary movement).
127
See Seam Park, Note, Substantial Barriers in Illegal Immigrant Access to Publicly-Funded Health
Care: Reasons and Recommendations for Change, 18 GEO. IMMIGR. L.J. 567, 587 n.136 (2004)
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
462
a welcoming city without actually calling for any tangible resistance to
immigration enforcement, such as rejecting ICE detainers.
128
The number of
cities declaring themselves immigrant sanctuaries thereafter surged during
the Bush II and Obama Administrations, as both presidents prioritized
removal of undocumented immigrants through increasingly invasive
investigative techniques carried out by ICE.
129
Similarly, President Trump’s
anti-immigrant rhetoric both before and after the 2016 presidential election
drove another spike in sanctuary-city resolutions between 2016 and 2019.
130
Today, some estimate that over 560 cities and other municipalities (as well
as the entire state of California) have passed some form of immigrant
sanctuary resolution.
131
As with Second Amendment Sanctuaries, “[t]here are various types of
[immigrant] sanctuary city policies.”
132
Although many policies are merely
symbolic, immigrant sanctuary jurisdictions have increasingly established
proactive protocols “to maintain the confidentiality of an individual’s
undocumented status and ensure open communication between residents and
employees, especially law enforcement officers.”
133
These measures are most
often accomplished through “noncooperation policies,” wherein law
enforcement agree not to communicate with ICE about an individual’s
immigration status.
134
Furthermore, more than 300 county jurisdictions have
(cataloging nationwide sanctuary ordinances passed between 1984 and 1986); see also Villazor &
Gulasekaram, supra note 4, at 1235, 1281.
128
See, e.g., Davis City Council Res. No. 5407, Series 1986 (Cal. 1986),
http://documents.cityofdavis.org/Media/Default/Documents/PDF/CMO/Sanctuary-City/Resolution-
5407-Establishing-Davis-as-a-Sanctuary-City.pdf [https://perma.cc/L5QQ-QV7J].
129
Marcia Zug, The Mirage of Immigration Reform: The Devastating Consequences of Obama’s
Immigration Policy, 63 U. KAN. L. REV. 953, 955 & n.12, 960–61 (2015) (debating whether Bush or
Obama more deserve the title “deporter in chief”); see also Nora Caplan-Bricker, Who’s the Real
Deporter-in-Chief: Bush or Obama?, NEW REPUBLIC (Apr. 17, 2014), https://newrepublic.com/
article/117412/deportations-under-obama-vs-bush-who-deported-more-immigrants
[https://perma.cc/3YCT-VYKM].
130
See Stephen Dinan, Half of All Americans Now Live in ‘Sanctuaries’ Protecting Immigrants,
WASH. TIMES (May 10, 2018), https://www.washingtontimes.com/news/2018/may/10/half-of-americans-
now-live-in-sanctuaries/ [https://perma.cc/A2T6-2774]; see also Bill Ong Hing, Entering the Trump Ice
Age: Contextualizing the New Immigration Enforcement Regime, 5 TEX. A&M L. REV. 253, 256–57
(2018).
131
Dinan, supra note 130.
132
Villazor & Gulasekaram, supra note 4, at 1236.
133
Id. at 1236; see also Chuck Wexler, Opinion, Police Chiefs Across the Country Support Sanctuary
Cities Because They Keep Crime Down, L.A. TIMES (Mar. 6, 2017, 4:00 AM), http://www.latimes.com/
opinion/op-ed/la-oe-wexler-sanctuary-cities-immigration-crime-20170306-story.html [https://perma.cc/
RET3-V2TP].
134
Jason A. Cade, Sanctuaries as Equitable Delegation in an Era of Mass Immigration Enforcement,
113 NW. U. L. REV. 433, 489–90 (2018); Stella Burch Elias, The New Immigration Federalism, 74 OHIO
115:437 (2020) Second Amendment Sanctuaries
463
enacted policies refusing to honor federal immigration detainer requests,
which authorize state authorities to temporarily detain suspected
undocumented immigrants to allow for federal investigation of their status,
arguing that enforcement of federal detainers is the federal government’s
responsibility and that such detainers violate the Fourth Amendment because
they require prolonged detention without probable cause that a crime has
been committed.
135
These passive noncooperation policies echo the passive
nonenforcement declarations in Second Amendment Sanctuaries. Much like
a state or city law enforcement officer’s refusal to communicate with federal
agencies like ICE, local sheriffs have committed to not cooperate with state
enforcement of state gun laws. Moreover, both types of resolutions claim a
constitutional duty to resist superior government action which they regard as
violations of individual protections in the Bill of Rights.
The most proactive immigrant sanctuary cities “provide free legal
assistance to undocumented immigrants and children in removal
hearings.”
136
Because noncitizens do not have a constitutional right to
government-sponsored counsel at removal hearings, “[a] sanctuary city’s
provision of legal services provides the necessary form of legal resistance to
the power of the federal government to remove a noncitizen,” particularly
considering that “[t]he mere presence of legal counsel dramatically alters the
prospects for noncitizens in removal proceedings.”
137
However, even this
policy does not seek to proactively “block the law, but simply insist[s] that
it should be enforced by those who have the responsibility to do so.”
138
Similarly, Second Amendment Sanctuary resolutions pledging taxpayer
money to defend local officials in court
139
represent a willingness to
affirmatively denounce state law without actively preventing its enforcement
ST. L.J. 703, 716, 751 (2013) (suggesting such noncooperation policies do not prevent individual officers
from collaborating with ICE).
135
See County of Santa Clara v. Trump, 250 F. Supp. 3d 497, 510 (N.D. Cal. 2017) (“Several courts
have held that it is a violation of the Fourth Amendment for local jurisdictions to hold suspected or actual
removable aliens subject to civil detainer requests because civil detainer requests are often not supported
by an individualized determination of probable cause that a crime has been committed.” (citing Morales
v. Chadbourne, 793 F.3d 208, 215–17 (1st Cir. 2015))); Deirdre Shesgreen & Alan Gomez, Sanctuary
Cities for Illegal Immigrants? Here’s What You Need to Know, USA TODAY (Apr. 12, 2019, 3:27 PM),
https://www.usatoday.com/story/news/world/2019/04/12/sanctuary-cities-illegal-immigrants-can-carry-
many-definitions/3449063002/ [https://perma.cc/6WLG-6WU6].
136
Villazor & Gulasekaram, supra note 4, at 1240 (“[This] provision of legal services may perhaps
be a quintessential form of safe haven.”).
137
Id. (citing Ingrid V. Eagly, Gideon’s Migration, 122 YALE L.J. 2282, 2289 (2013)).
138
Toscano, supra note 5.
139
See Picket, supra note 100.
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
464
by state officials. However, the resolutions adopted in Virginia that call for
the local raising of a militia and the deputizing of thousands of private
citizens as an end run around state gun-control regulations arguably represent
an affirmative local regulatory scheme at odds with proposed state
legislation, as do financial defunding efforts and law enforcement and
prosecutorial nullification. Such affirmative action finds no close analog in
the immigrant-sanctuary context.
Nonetheless, some common themes emerge from this sanctuary
comparison. Both immigrant and gun sanctuaries communicate
disagreement with the laws and enforcement priorities of a superior
government entity. Most sanctuaries erect passive roadblocks to undesirable
legislation by refusing to cooperate, rather than proactively attempting to
create a parallel system of immigration or gun regulation.
140
And both types
of sanctuaries assert a legal right to resist the undesirable policy, though the
legal justifications for each type of sanctuary differ. Immigrant sanctuaries
claim a federalism right to resist under the Tenth Amendment,
141
while gun
sanctuaries claim a substantive Second Amendment duty to resist.
142
It is this difference in legal justification between the two types of
sanctuaries that poses a great risk to Second Amendment Sanctuary viability.
Broadly speaking, immigrant sanctuary cities do not question the legality of
federal immigration enforcement priorities, but merely disagree with them
as a matter of policy. Moreover, these local jurisdictions have a
constitutional right under the anticommandeering principles of the Tenth
Amendment not to assist with the enforcement of federal immigration law if
they choose not to.
143
In contrast, Second Amendment Sanctuaries do not
have the same right to ignore state gun-control measures because, in most
states, local municipalities are subservient subdivisions of state governments
140
Practically speaking, however, state governments rely on municipal subdivisions to enforce state
laws in a way the federal government does not rely on states. Thus, when local sheriffs and prosecutors
refuse to enforce new state gun-control laws, they take on a proactive resistance quality not present in
traditional federalism contexts. See infra Part II.
141
City of Philadelphia v. Sessions, 280 F. Supp. 3d 579, 650, 659 (E.D. Pa. 2017) (enjoining the
Attorney General from enforcing against Philadelphia parts of President Trump’s executive order
withholding funding because Philadelphia is an immigrant sanctuary city, but warning that states cannot
“turn the Tenth Amendment’s shield against the federal government[] . . . into a sword allowing states
and localities to engage in passive resistance that frustrates federal programs” (quoting City of New York
v. United States, 179 F.3d 29, 35 (2d Cir. 1999))).
142
The substantive contours of the Second Amendment remain in a comparative state of flux,
however, given the relative dearth of U.S. Supreme Court jurisprudence. See infra Part IV.
143
City of Philadelphia, 280 F. Supp. 3d at 651; see also Josh Blackman, Improper Commandeering,
21 U. PA. J. CONST. L. 959, 981, 982–85 (2019) (making an anticommandeering case for immigrant
sanctuary cities).
115:437 (2020) Second Amendment Sanctuaries
465
and subject to preemption by state law.
144
In other words, there exists no
subfederal anticommandeering principle to shield localities from state
preemption. But unlike immigrant sanctuaries claiming a well-settled right
to resist under the Tenth Amendment, gun-sanctuary advocates claim an
unsettled Second Amendment right (and in some cases, a duty) to ignore
what they believe are unconstitutional state laws.
Given these legal headwinds, one could be forgiven for seriously
questioning the viability of Second Amendment Sanctuaries. In the short
history of these resolutions, two primary arguments dismissing them out of
hand have emerged. One characterizes them as nothing more than political
stunts designed to stoke fear rather than to have legal effect.
145
This argument
has currency to the extent that most sanctuary resolutions have been adopted
in response to the mere suggestion of gun-control measures, rather than the
actual enactment of laws.
146
Laws resisting nonexistent laws have no legal
effect. This reality perhaps explains the exponential growth of these
resolutions in a matter of weeks; with no real legal risk, purely symbolic
resolutions present a low-cost opportunity for politicians to support a vague
concept of strong Second Amendment rights.
But even if many of these resolutions are intended to be symbolic, such
political expression is richly communicative and predictive of potential
future litigation, particularly given the unsettled state of Second Amendment
doctrine.
147
Moreover, some resolutions articulate not just a passive
dissatisfaction with gun regulation, but an active intention to resist state
enforcement through financial defunding of courts and sheriffs’ offices that
enforce extreme risk laws, law enforcement and prosecutorial nullification,
and regulatory militia-raising.
148
144
See generally infra Section II.A.
145
See Thompson, supra note 47.
146
See Claire Hansen, ‘Second Amendment Sanctuary’ Movement Grows in Virginia as Democrats
Ready Gun Control Measures, U.S. NEWS (Dec. 11, 2019), https://www.usnews.com/news/national-
news/articles/2019-12-11/second-amendment-sanctuary-movement-grows-in-virginia-as-democrats-
ready-gun-control-measures [https://perma.cc/73A4-EUDB] (“Though the 2020 legislative session has
not yet begun,” Virginian counties have passed “resolutions in opposition to . . . potential gun control
bills.”).
147
See Lars Noah, Does the U.S. Constitution Constrain State Products Liability Doctrine?,
92 TEMP. L. REV. 189, 194 (2019) (“[T]he relatively recent interpretation of the Second Amendment
remains in a state of flux . . . .”); Blocher & Miller, supra note 35, at 330 (“[A]s of yet, courts have
identified few tools to determine when incidental burdens raise Second Amendment concerns.”).
148
See, e.g., Sara Knuth, Weld County Votes to Become Second Amendment Sanctuary County,
GREELEY TRIB. (Mar. 6, 2019, 12:30 PM), https://www.greeleytribune.com/2019/03/06/weld-county-
votes-to-become-second-amendment-sanctuary-county/ [https://perma.cc/QK5K-6Z48] (“Through the
resolution, the commissioners said they would not put money toward building a storage facility for
weapons seized by law enforcement [as a result of a red flag law] . . . . Additionally, the commissioners
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
466
These more robust resolutions have inspired the second major argument
dismissing Second Amendment sanctuary jurisdictions: that they “will never
hold up in court.”
149
Critics ranging from retired Virginia House of Delegates
delegate David Toscano
150
and Virginia Attorney General Mark Herring
151
to
Georgetown Law Professor Mary McCord
152
have all declared the legal case
against Second Amendment Sanctuaries open and shut. Their intuitions are
understandable. State law preempts local law, rendering local resolutions
null and void. Localities are mere subdivisions of states and can be forced to
enforce state law. The Second Amendment does not grant absolute rights, as
suggested by the resolutions; and to the extent a constitutional question
exists, courts (not local sheriffs) have the final say. But as the balance of this
Article illustrates, these legal issues—preemption, commandeering, and
constitutional interpretation—are more complex than they may first appear.
II. SANCTUARIES AND PREEMPTION
A significant threat to Second Amendment Sanctuaries is state
preemption. Local governments traditionally have had little independence
from their state governments and no structural guarantees of autonomy akin
to the states’ Tenth Amendment protections from federal government
interference.
153
Moreover, those localities with some form of “home rule,”
said they will support Sheriff Steve Reams if he decides not to enforce the bill if it becomes a law.”); Res.
52-2019, Bd. of Cnty. Comm’rs of Wash. Cnty. (Colo. 2019) (“Be it further resolved that the Board
affirms its support for the Washington County Sheriff in the exercise of his sound discretion to not enforce
against any citizen an unconstitutional firearms law . . . . [T]he Board will not appropriate funds . . . for
the purpose of enforcing any other law that unconstitutionally infringes upon the right of the People of
Washington County to keep and bear arms[, including] . . . . H.B. 19-1177 [Colorado’s Extreme Risk
Protection Order bill].”).
149
See, e.g., McCord, supra note 27; see also Editorial, 2nd Amendment Sanctuaries Are Acts of
Faithlessness in Government, L.A. TIMES (Jan. 19, 2020, 3:00 AM), https://www.latimes.com/opinion/
story/2020-01-19/2nd-amendment-sanctuaries-richmond-charlottesville-militias [https://perma.cc/
W6Z7-248V] (arguing that Second Amendment sanctuary jurisdictions “lack the authority to ignore the
state laws[,] . . . . [s]o it’s as much political theater as anything else, a baring of the teeth against disliked
laws, but rarely one that amounts to much”).
150
Toscano, supra note 5; About David Toscano, DAVID TOSCANO, https://davidtoscano.com/about-
david [https://perma.cc/8JCH-GL6H].
151
Thompson, supra note 47; Tim Dodson, Second Amendment ‘Sanctuary’ Resolutions ‘Have No
Legal Effect’ in Virginia, Attorney General Mark Herring Writes in Advisory Opinion, BRISTOL HERALD
COURIER (Dec. 20, 2019), https://www.heraldcourier.com/news/local/second-amendment-sanctuary-
resolutions-have-no-legal-effect-in-virginia/article_3f618f70-234b-11ea-9704-ff40e2b891d2.html
[https://perma.cc/XDW5-4HTR].
152
McCord, supra note 27.
153
See Printz v. United States, 521 U.S. 898, 933 (1997) (holding concluding that the Tenth
Amendment prevents the federal government from commanding or coercing state and local governments
115:437 (2020) Second Amendment Sanctuaries
467
with limited exceptions, often find their regulations expressly preempted by
states anyway, with state sovereignty frequently prevailing over local home
rule in court.
154
But Second Amendment Sanctuary resolutions present unique
challenges to this state-dominance paradigm. As previously discussed, many
sanctuary resolutions do not erect affirmative ordinances like minimum
wage hikes
155
or fracking bans
156
that are subject to preemption, but instead
declare an intent to passively resist enforcement of state law. Moreover,
some limited precedent exists for allowing a form of constitutional home rule
when, as here, the local enforcement of a state law contradicts a history of
local regulation and implicates broader constitutional concerns.
157
To ground the analysis, this Part begins with an overview of state
preemption law and its recent partisan weaponization before exploring the
normative policy and legal case for local autonomy in the limited field of
firearms regulation.
A. The Preemption Paradigm
“Under the modern view, local governments are creatures of state law,
and the U.S. Constitution provides few, if any, substantive protections for
local policymaking.”
158
The Court’s decision in Hunter v. City of Pittsburgh
remains the touchstone for describing the subservient position of local
governments:
Municipal corporations are political subdivisions of the State, created as
convenient agencies for exercising such of the governmental powers of the State
to enforce federal law); cf. Su, supra note 34, at 204–06 (asserting that traditional state–federal power
struggles are increasingly represented informally at the intrastate level between state and locality).
154
Karen Kasler, State vs. Local: Battle Over Home Rule Rages in Ohio, WKSU (Oct. 25, 2019),
https://www.wksu.org/post/state-vs-local-battle-over-home-rule-rages-ohio#stream/0 [https://perma.cc/
5WX2-6DE7] (“In nearly all recent cases where home rule is at issue, the Ohio Supreme Court has sided
with state lawmakers.”); Kenneth Vanlandingham, Constitutional Municipal Home Rule Since the AMA
(NLC) Model, 17 WM. & MARY L. REV. 1, 30 (1975) (explaining that the “narrow and restrictive judicial
interpretation” given to local autonomy has limited localities’ ability to fully utilize constitutional home-
rule guarantees); see also Briffault, supra note 23, at 2022 (noting that home rule does not provide “formal
immunity protections from state preemption”).
155
Paul Diller, Intrastate Preemption, 87 B.U. L. REV. 1113, 1172–73 (2007) (exploring whether
local minimum-wage ordinances should be subject to preemption in home-rule states).
156
City of Longmont v. Colo. Oil & Gas Ass’n, 369 P.3d 573, 577 (Colo. 2016) (asserting that “the
inalienable rights provision of the Colorado Constitution” does not save the local fracking ban from
preemption by state law); Scharff, supra note 20 at 1472 & n.10 (enumerating the “particularly
voluminous literature on local fracking bans”).
157
See David J. Barron, Reclaiming Home Rule, 116 HARV. L. REV. 2255, 2362–67 (2003)
(proposing expanding constitutional home-rule guarantees in state constitutions).
158
Scharff, supra note 20, at 1475 (citation omitted).
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
468
as may be entrusted to them. . . . The State, therefore, at its pleasure may modify
or withdraw all such powers, . . . expand or contract the territorial area, unite
the whole or a part of it with another municipality, repeal the charter and destroy
the corporation. All this may be done, conditionally or unconditionally, with or
without the consent of the citizens, or even against their protest. In all these
respects the State is supreme, and its legislative body, conforming its action to
the state constitution, may do as it will, unrestrained by any provision of the
Constitution of the United States.
159
This is not to say that local governments have no power, but that power
is traditionally limited to those specifically enumerated in its respective state
constitution. Thus, the local–state power structure is reversed from the
federal–state power structure. Under traditional federalism principles, the
federal government has only those powers specifically granted to it, with the
rest reserved for the states and the people.
160
Under the local–state structure,
state governments have general police powers and reserve to the local
governments only what is specifically granted to them.
161
These limited powers, available to at least some localities in a majority
of states, are often referred to as “home rule” powers.
162
“Under home rule,
state law grants localities some authority over local affairs and may limit the
159
Hunter v. City of Pittsburgh, 207 U.S. 161, 178–79 (1907); see also Edward L. Rubin & Malcolm
Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA L. REV. 903, 916 (1994)
(“[Federalism] subjects these localities to the plenary control of state government and precludes or limits
the ability of the national government to set standards for local politics.”). This view has its strong critics.
See People ex rel. Le Roy v. Hurlbut, 24 Mich. 44, 108 (1871) (Cooley, J., concurring) (arguing that local
government is an “absolute right” protected from the powers of the legislatures); Gerald E. Frug, The City
as a Legal Concept, 93 HARV. L. REV. 1057, 1111–13 (1980) (discussing criticisms of the emerging
power of the state as the dominant subfederal government entity); Richard Briffault, Home Rule, Majority
Rule, and Dillon’s Rule, 67 CHI.-KENT L. REV. 1011, 1023–24 (1991) (criticizing Dillon’s Rule as
leading to “arbitrary, outcome-oriented judicial intrusion into local autonomy”); Comment, Dillon’s Rule:
The Case for Reform, 68 VA. L. REV. 693, 703 (1982) (“[B]ecause of the nature of most legislation, the
[Dillon’s Rule] doctrine often forces the Court to assume the quasi-legislative role of interpretation by
mere speculation.”).
160
Gamble v. United States, 139 S. Ct. 1960, 1987 (2019) (describing federalism principles as they
relate to the Fifth Amendment’s Double Jeopardy Clause).
161
See, e.g., Covel v. Town of Vienna, 78 Va. Cir. 190, 200 (2009) (“In Virginia . . . [i]t is a general
and undisputed proposition of law that a municipal corporation possesses and can exercise the following
powers and no others: First, those granted in express words [by the state]; second, those . . . incidental to
the powers expressly granted . . . .” (internal quotation marks omitted)); James S. MacDonald &
Jacqueline R. Papez, Over 100 Years Without True “Home Rule” in Idaho: Time for Change, 46 IDAHO
L. REV. 587, 589, 592 (2010) (lamenting the lack of “local discretionary authority” in Idaho: “[O]ur
supreme law recognizes only a dual federalism between national and state governments, not the tripartite
reality including local governments.”).
162
See Cmty. Commc’ns Co. v. City of Boulder, 455 U.S. 40, 43 (1982) (explaining that states can
grant “powers of self-government in local and municipal matters” by a “home-rule” provision in the
constitution of the state).
115:437 (2020) Second Amendment Sanctuaries
469
state’s ability to interfere in local affairs.”
163
However, local autonomy is
limited in a majority of these jurisdictions to structural and personnel
decisions, such as how to structure local councils and who to staff on them,
while the far more powerful regulatory and fiscal functions are reserved to
the states.
164
Moreover, many states, including Virginia, practice “Dillon’s
Rule,” which affords no autonomy for local governments and treats them as
entirely subservient subdivisions of the government.
165
As Professor Erin Scharff has stated, “Even when local governments
have the authority to act, this authority is almost always subject to state
legislative preemption.”
166
Thus, even if a locality has the power to raise the
minimum wage or ban the possession of high-capacity magazines, states
almost always possess the ability to preempt and invalidate those ordinances.
In order to do so, states often pass preemption legislation for the sole purpose
of eliminating a local regulation without enacting any replacement scheme
in what Professor Richard Briffault has identified as “deregulatory
preemption.”
167
Therefore, local resolutions are, generally speaking, subject
to displacement by broad state preemption powers.
B. Partisan Preemption
Scholars have long explored the proper normative balance between
state and local government power sharing, regardless of politics.
“Nevertheless, in recent years, preemption debates have taken on a decidedly
partisan tone.”
168
In particular, increasingly liberal policy innovation has
exacerbated the partisan nature of preemption debates.
169
163
Scharff, supra note 20, at 1476.
164
See id. at 1475–76 (“[T]his difference between home rule jurisdictions and non-home rule
jurisdictions is often of little practical significance. The implied powers of non-home rule jurisdictions
can be quite broad. And even in home rule jurisdictions, local government authority is often limited.”).
165
See NAT’L LEAGUE OF CITIES, CITY RIGHTS IN AN ERA OF PREEMPTION: A STATE-BY-STATE
ANALYSIS 5 (2017), https://www.nlc.org/sites/default/files/2017-02/NLC%20Preemption%20Report
%202017.pdf [https://perma.cc/SC6W-DNQ9]; see also Nestor M. Davidson, The Dilemma of Localism
in an Era of Polarization, 128 YALE L.J. 954, 961 n.18 (2019) (discussing the “most state-focused version
of local legal identity, known as ‘Dillon’s Rule’”); Scharff, supra note 20, at 1476 (“In non-home rule
states . . . state delegations of authority must be explicitly granted in statute or implied as necessary
corollaries of statutory delegations.”).
166
Scharff, supra note 20, at 1476.
167
Schragger, supra note 19, at 1182.
168
Scharff, supra note 20, at 1481; see also Olatunde C.A. Johnson, The Local Turn; Innovation and
Diffusion in Civil Rights Law, 79 LAW & CONTEMP. PROBS. 115, 136 & n.92 (2016) (referring
alternatively to “partisan preemption” and “manufactured preemption”).
169
Scharff, supra note 20, at 1481–82.
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
470
Today, heightened political polarization has led to a “geographic
political sorting,” wherein “urban residents are more liberal than their . . .
rural counterparts.”
170
As a result, many cities have passed first-in-the-nation
progressive local reforms like taxes on sugar-sweetened beverages, plastic-
bag bans, trans-fat bans, fracking bans, carbon-emissions regulations, $15.00
minimum-wage hikes, and antidiscrimination measures protecting the
LGBTQ+ community.
171
This local liberal policymaking, rather than any
principled preference for statewide uniformity, “has invited pushback from
Republican-controlled state legislatures.”
172
Often working with the
conservative American Legislative Executive Council (ALEC), Republican
legislatures have as a result passed reactive preemption laws designed to
invalidate these local liberal reforms, often without enacting any replacement
statewide policy.
173
The partisan nature of preemption, thus, in many ways has informed
modern gun regulation. Prompted in part by the passage of a handgun ban in
Morton Grove, Illinois in 1981, the NRA and other gun-rights organizations
began pushing for state-level preemption laws that would forbid local
governments from enacting certain kinds of gun control.
174
Although these
efforts “broke with the tradition of local governance” the NRA and other
conservatives typically espoused, “the[ir] preemption campaign was
170
Id. (describing how “[m]ayors of large urban areas increasingly cast themselves as policy
entrepreneurs” of liberal policies not palatable at the state level, which attracts a certain transplant
resident); see also Richard C. Schragger, The Political Economy of City Power, 44 FORDHAM URB. L.J.
91, 118 (2017) (describing “[t]he city as the locus of transformative reform”); Jessica Bulman-Pozen,
Partisan Federalism, 127 HARV. L. REV. 1077, 1080 (2014) (asserting that arguments about allocations
of power are often driven by ideological and partisan interests).
171
Scharff, supra note 20, at 1482–84 (“Mayors of large urban areas increasingly cast themselves as
policy entrepreneurs, and local civic leaders across the country have become adept at using local law to
push a policy agenda that would have little traction at the state capitol.”); Lydia DePillis, A $15 Minimum
Wage Started as a Slogan. Now It’s Passed the House, CNN (July 18, 2019, 12:47 PM),
https://www.cnn.com/2019/07/15/economy/15-dollar-minimum-wage-house-vote/index.html [https://
perma.cc/PM5V-CTGZ] (noting that a $15 minimum wage evolved from a slogan to the law in Seattle,
San Francisco, California, and New York).
172
Scharff, supra note 20, at 1483.
173
See Henry Grabar, The Shackling of the American City, SLATE (Sept. 9, 2016, 5:53 AM),
https://slate.com/business/2016/09/how-alec-acce-and-pre-emptions-laws-are-gutting-the-powers-of-
american-cities.html [https://perma.cc/2X39-W9PZ] (“For progressives, ALEC has become a
boogeyman for its role propagating laws supporting a host of corporate and conservative priorities.”).
174
HARRY L. WILSON, GUN POLITICS IN AMERICA: HISTORICAL AND MODERN DOCUMENTS IN
CONTEXT 408 (2016) (“[T]he NRA became more active in state politics when it was evident that the
national-level pendulum might be swinging toward gun control advocates.”); William S. Harwood, Gun
Control: State Versus Federal Regulation of Firearms, 11 ME. POL’Y REV. 58, 65 (2002) (arguing that
the NRA’s preemption push stemmed not from a desire to create “uniformity” for gun owners, but its
desire to “avoid having to fight the issue of gun control in thousands of city and town halls across the
country”).
115:437 (2020) Second Amendment Sanctuaries
471
incredibly successful.”
175
By 2002, forty-one states had preempted some or
all local gun-control measures, a number that rose to forty-five in 2020.
176
Of these states, ten have adopted absolute preemption of municipal
firearm regulations, barring any exceptions and holding state officials civilly
or criminally liable for violations.
177
For instance, New Mexico, a home-rule
state,
178
implemented this broad preemption measure by amending its state
constitution.
179
The Kansas State Rifle Association President proclaimed in
support of a proposed law to preempt local Kansas gun control, “There are
lots of areas where home rule certainly applies, . . . [b]ut this is not one of
them. Not when it comes to an unalienable, natural, God-given right for
people to protect themselves.”
180
Although these preemption statutes vary, each one expressly preempts
virtually all aspects of local firearms and ammunition regulation.
181
As a
typical example, South Dakota prohibits counties from passing any
“ordinance that restricts or prohibits, or imposes any tax, licensure
requirement, or licensure fee on the possession, storage, transportation,
purchase, sale, transfer, ownership, manufacture, or repair of firearms or
ammunition or their components.”
182
In addition to this broad preemption
175
Blocher, supra note 23, at 133; see also MacDonald & Papez, supra note 161, at 589, 612 (“A
basic tenet of political conservatism is belief in local control. . . .[, but today] Dillon’s Rule [endorsing
complete state preemption] . . . has become a tool used to keep municipalities, often more liberal, in lock-
step with state-wide thinking, often more conservative.”); Scharff, supra note 20, at 1482–84 (describing
liberal municipal policies such as minimum-wage increases and antidiscrimination ordinances preempted
by conservative leaders in the statehouse).
176
Jon S. Vernick & Lisa M. Hepburn, State and Federal Gun Laws: Trends for 1970–99, in
EVALUATING GUN POLICY: EFFECTS ON CRIME AND VIOLENCE 345, 349 (Jens Ludwig & Philip J. Cook
eds., 2003); Trevor Bach, Cities Grow Bolder on Gun Control Laws, U.S. NEWS (Jan. 10, 2020, 12:22
PM), https://www.usnews.com/news/cities/articles/2020-01-10/cities-grow-bolder-on-gun-control-
clashing-with-states [https://perma.cc/28JA-ZUSV] (describing state preemption laws in forty-five states
and the resulting urban pushback); see also Kristin A. Goss, Policy, Politics, and Paradox: The
Institutional Origins of the Great American Gun War, 73 FORDHAM L. REV. 681, 706 (2004) (quoting
anonymous gun-control activist lamenting “the NRA’s effort to pass preemption laws” as “a serious
setback”).
177
See GIFFORDS L. CTR. TO PREVENT GUN VIOLENCE, supra note 18.
178
N.M. CONST. art. X, § 6 (1970).
179
Id. art. II, § 6 (amended 1986).
180
Matt Valentine, Disarmed: How Cities Are Losing the Power to Regulate Guns, ATLANTIC (Mar.
6, 2014), https://www.theatlantic.com/politics/archive/2014/03/disarmed-how-cities-are-losing-the-
power-to-regulate-guns/284220/ [https://perma.cc/Z9UV-7SPH].
181
GIFFORDS L. CTR. TO PREVENT GUN VIOLENCE, supra note 18 (stating that forty-three states have
statutes restricting in whole or in part local governments’ ability to regulate firearm and ammunition sales
and possession); see also Bach, supra note 176 (“The laws vary by language and degree: In five states . . .
local officials found to be in violation can be personally sued.”).
182
S.D. CODIFIED LAWS § 7-18A-36 (2018) (“Any ordinance prohibited by this section is null and
void.”).
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
472
language, many states impose civil or criminal penalties on local officials
who violate the preemption statute, including holding local officials
personally liable by exempting them from qualified immunity, removing
elected officials from office, and imposing fines up to $50,000.
183
Nevertheless, some local firearms regulations have survived
preemption challenges, at least in the states without broad express
preemption laws. In California, for example, state law regulates only the
registration and licensing of firearms and the licensing and permitting of
concealed carry permits.
184
This partial preemption statute gives significant
leeway for local regulation. For instance, California courts have upheld local
ordinances regulating the location and operation of firearms dealers, as well
as the sale and possession of firearms and ammunition on county-owned
property.
185
Moreover, the political opportunism of preemption extends to both
major political parties. Liberal gun-control organizations have long hailed
the virtues of local gun laws because local gun regulations predominantly
have taken the form of strict gun-control measures in urban centers.
186
For
instance, the Giffords Law Center to Prevent Gun Violence devotes an entire
page on its website to firearm localism advocacy, proclaiming that “[w]hen
it comes to gun violence, local laws serve the important purpose of
addressing the unique issues and dangers facing each different
community.”
187
While the Giffords Center makes salient points about the
183
ARIZ. REV. STAT. ANN. § 13-3108(I) (2018) (providing for $50,000 fine for “knowing[] and
willful[] violat[ions]”); FLA. STAT. § 790.33(3)(c) (2019) (providing for $5,000 fine); IOWA CODE
§ 29C.25(1), (3)(a) (2019) (permitting personal liability for public officials); KY. REV. STAT. ANN.
§ 65.870(4), (6) (2018) (same); MISS. CODE ANN. § 45-9-53(5)(c) (2019) (same); see also ARIZ. REV.
STAT. § 13-3108(J) (2018) (authorizing removal from office for public officials); FLA. STAT.
§ 790.33(3)(e) (2019) (same); KY. REV. STAT. ANN. § 65.870(6) (2018) (authorizing criminal liability for
public officials who violate law).
184
CAL. GOV’T CODE § 53071 (2019) (preempting “registration or licensing of commercially
manufactured firearms”); id. § 53071.5 (preempting “regulation of the manufacture, sale, or possession
of imitation firearms”); CAL. PENAL CODE § 25605(b) (2019) (prohibiting permit or license with respect
to the purchase, ownership, possession, or carrying of a handgun in a residence or place of business).
185
See Suter v. City of Lafayette, 67 Cal. Rptr. 2d 420, 425 (Ct. App. 1997) (“That state law tends
to concentrate on specific areas, leaving unregulated other substantial areas relating to the control of
firearms, indicates an intent to permit local governments to tailor firearms legislation to the particular
needs of their communities.”).
186
Cal. Rifle & Pistol Ass’n v. City of West Hollywood, 78 Cal. Rptr. 2d 591, 594 (Ct. App. 1998)
(upholding ordinance banning junk guns); Suter, 67 Cal. Rptr. 2d at 425 (upholding ordinance regulating
the location and operation of firearms dealers); Great W. Shows, Inc. v. County of Los Angeles, 44 P.3d
120, 125 (Cal. 2002) (upholding ordinance banning the sale of firearms and ammunition on county-owned
property); Nordyke v. King, 44 P.3d 133, 138 (Cal. 2002) (upholding ordinance banning possession of
firearms and ammunition on county-owned property).
187
See GIFFORDS L. CTR. TO PREVENT GUN VIOLENCE, supra note 18.
115:437 (2020) Second Amendment Sanctuaries
473
virtues of firearm localism, including the need to recognize local variations
in urban and rural communities and the importance of localities’ ability to
experiment with innovative gun-control solutions,
188
the organization also
spent over $300,000 supporting Virginia Democrats promising to enact
statewide gun-control legislation.
189
These efforts spotlight how political
opportunism on both sides of the aisle has accounted for the sometimes
inconsistent nature of gun-control efforts at both the state and local level.
The rise in Second Amendment Sanctuaries not only fits the issue-
specific nature of partisan preemption, but also reflects a reversal of broader
priorities for both conservatives and liberals. Conservative policymakers
have long “railed” against immigrant sanctuary jurisdictions as anarchic
attempts to disregard valid laws with which the jurisdictions simply disagree,
but many of those same politicians now support declaring a firearms
sanctuary in their towns and counties in violation of locally unpopular gun
laws.
190
Similarly, progressive politicians have long decried Dillon’s Rule for
vesting states with too much power to preempt local ordinances, seeing such
power structures as unfairly stymieing local efforts to broaden civil and
political protections for minorities.
191
Now, local ordinances like Second
Amendment Sanctuaries have liberals and conservatives alike rethinking
how much power should rest with local officials like county administrators
and sheriffs.
In short, “[p]references about ‘state’ versus ‘local’ control often do not
reflect institutional commitments to a particular division of governmental
power.”
192
“Rather, advocates advance their own substantive policy
commitments by considering which level of government is most likely to
enact their preferences.”
193
In this sense, “[p]reemption arguments . . . [are]
susceptible to institutional flip-flops” like the ones playing out in Second
188
Id. (“Broad state preemption statutes threaten public safety because they: Ignore important local
variations . . . between urban and rural communities. . . . [and] [t]hwart local innovation in gun violence
prevention strategies which can lay the groundwork for state-level change.”).
189
Jane Coaston, The NRA’s Big Loss in Virginia, Explained, VOX (Nov. 6, 2019, 4:40 PM),
https://www.vox.com/2019/11/6/20951639/nra-virginia-democrats-spending-gun-control [https://perma.
cc/JQ67-7YW4] (noting that Everytown for Gun Safety Action Fund “spent $2.5 million in Virginia,
making the group the biggest outside donor in the race—and Giffords PAC[] . . . spent $300,000 on a
digital ad campaign alone”).
190
See Toscano, supra note 5.
191
See id.; see also Scharff, supra note 20, at 1481–82 (summarizing progressive discontent with
municipal powerlessness in Dillon’s Rule states); Gulasekaram et al., supra note 16, at 856–62
(describing the challenges facing the immigrant-sanctuary movement in Dillon’s Rule states).
192
Scharff, supra note 20, at 1486.
193
Id.
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
474
Amendment Sanctuary jurisdictions.
194
But Second Amendment Sanctuaries
need not be viewed solely through a partisan lens, as a strong normative case
can also be made for embracing firearm localism.
C. Normative Localism
There are normative reasons for preferring greater local autonomy both
in the field of firearm regulation and more generally. Local autonomy
advances “the traditional advantages that attend decentralization,” including
“more participatory and responsive government” and “more flexibility in
responding to changing circumstances.”
195
These advantages are more
pronounced either when differences in localities require locally tailored
solutions or when “a divided populace [cannot] maximiz[e] policy
preferences” on a state or national level.
196
Both factors exist in the context
of gun regulation.
To take one example, livestock zoning ordinances are locally tailored
in recognition that “[d]ensity creates problems for urban farmers that have
little parallel in rural America.”
197
The same is true for firearms. Far more
rural residents own and regularly use firearms than urban residents.
198
Rural
residents are significantly more likely to use firearms for hunting or for target
shooting and other recreational activities that require space not available in
urban centers.
199
The types of firearms used in these activities differ from
those owned and used in urban areas.
200
And to the extent both urban and
194
See id. at 1489; see also Gulasekaram et al., supra note 16, at 882 (“Neither state-level preemption
nor local authority inherently tracks political ideologies or partisan preferences.”).
195
David J. Barron, A Localist Critique of the New Federalism, 51 DUKE L.J. 377, 382 (2001).
196
Scharff, supra note 20, at 1491.
197
Id. at 1492.
198
Igielnik, supra note 109 (“Among adults who live in rural areas, 46% say they own a gun,
compared with . . . 19% [] in urban areas . . . .”).
199
See id. (“[G]un owners in rural areas are far more likely than urban owners to cite hunting as a
major reason they own a gun (48% vs. 27%, respectively).”); see also Michelle Samuels, New Gun
Subculture Is on the Rise in Liberal States with Stricter Gun Laws, THE BRINK (July 15, 2020),
https://www.bu.edu/articles/2020/new-gun-subculture-on-the-rise-in-liberal-states-stricter-gun-laws/
[https://perma.cc/FA9M-ZT36] (noting that the dominant “gun subculture” in many of the least populated
areas of the United States, including the Dakotas, the Upper Rocky Mountain West, and Alaska, is
“recreational” compared with the “self-defense” or “Second Amendment activism” subculture in more
densely populated areas in California, New York, Illinois, and Florida).
200
See Igielnik, supra note 109 (“Three-quarters of those in rural areas (75%) say they own more
than one gun, compared with 48% of urban gun owners.”); KIM PARKER, JULIANA HOROWITZ, RUTH
IGIELNIK, BAXTER OLIPHANT & ANNA BROWN, PEW RSCH. CTR., AMERICA’S COMPLEX RELATIONSHIP
WITH GUNS 22 (2017), https://www.pewsocialtrends.org/2017/06/22/the-demographics-of-gun-
ownership/ [https://perma.cc/L96T-FYCU] (“For those with a single gun, handguns are by far the most
common type.”).
115:437 (2020) Second Amendment Sanctuaries
475
rural gun owners exercise the “core” Second Amendment right of self-
defense,
201
geographical variance informs how these rights will be exercised.
In urban areas, many gun owners prefer a single, concealable handgun to
provide short-term deterrence until law enforcement can arrive.
202
Gun
owners in rural areas, in contrast, need to “supplement” traditional
government law enforcement, which is more sparsely distributed in rural
areas and cannot respond as quickly or efficiently to fast-moving life-and-
death situations, through the use of more substantial weapons like
shotguns.
203
Likewise, urban residents face unique challenges that rural
residents do not. Rates of gun violence (and crime rates in general) are far
higher in high-density urban areas, and the potential for mass casualty events
is significantly greater.
204
Given these many differences in needs and
purposes of firearms, “[i]t is no surprise . . . that the vast majority of gun
201
See Igielnik, supra note 109 (“[P]rotection tops the list of reasons for owning a gun among both
groups . . . .”); United States v. Greeno, 679 F.3d 510, 517 (6th Cir. 2012) (“The core right recognized in
Heller is ‘the right of law-abiding, responsible citizens to use arms in defense of hearth and home.’”).
202
Vince K. Heitholt, Meramec River Killing: State v. Crocker and Missouri’s First Foray into the
National Debate on Self-Defense, 59 ST. LOUIS L.J. 1197, 1212 (“Rural individuals are more likely to
live in areas isolated from law enforcement, and self-help may present the only option available for
preservation of life or property.”); Blocher, supra note 23, at 97 (“[I]t is also easy to see how armed self-
defense could have particular value to rural residents who cannot count on speedy responses from
police.”); Cody J. Jacobs, End the Popularity Contest: A Proposal for Second Amendment “Type of
Weapon” Analysis, 83 TENN. L. REV. 231, 284 n.226 (2015) (“[A] plaintiff challenging a ban on a
particular weapon type in a more rural area could argue that a higher degree of firepower is necessary
where police response times may be higher.”); Chuck Raasch, In Gun Debate, It’s Urban vs. Rural, USA
TODAY (Feb. 27, 2013, 12:01 AM), http://www.usatoday.com/story/news/nation/2013/02/27/guns-
ingrained-in-rural-existence/1949479 [https://perma.cc/X88W-Y883] (“‘I live 15 miles from the nearest
town or police station,’ says [Frank] Jezioro, [West Virginia’s] director of the Division of Natural
Resources. ‘My family, my wife, my grandkids are there all the time. A home invasion—what good does
it do me to call 911 and wait for someone to come and help me?’”).
203
See Luna, supra note 110, at 82.
204
See Gun Violence in the US Kills More Black People and Urban Dwellers, THE CONVERSATION
(Nov. 8, 2017, 6:18 AM), https://theconversation.com/gun-violence-in-the-us-kills-more-black-people-
and-urban-dwellers-86825 [https://perma.cc/U7G5-8TD9] (citing studies showing that 20% of all gun-
related homicides take place in urban areas with less than 10% of the nation’s population); Henrika
McCoy, Opinion, Gun Violence in Urban Communities Must Get the Same Attention as Suburban School
Shootings, HILL (Apr. 1, 2020, 7:30 PM), https://thehill.com/opinion/civil-rights/490669-gun-violence-
in-urban-communities-must-get-the-same-attention-as-white [https://perma.cc/Y8HT-GL9R] (criticizing
lack of coverage for urban gun violence relative to mass shootings in suburban neighborhoods); David
Kairys, Challenging the Normalcy of Handgun Violence, 156 U. PA. L. REV. PENNUMBRA 194, 196
(2007) (“The large urban areas of the nation [are] where unregulated handgun markets have taken such a
terrible toll . . . .”); Blocher, supra note 23, at 122 (“[T]he costs of gun violence . . . are generally higher
in urban areas than in rural areas.”); cf. Claudia Boyd-Barrett, Gun Violence Increasingly a Rural
Problem, Study Finds, CAL. HEALTH REP. (Apr. 24, 2018), https://www.calhealthreport.org/2018/04/24/
gun-violence-increasingly-rural-problem-study-finds/ [https://perma.cc/K5XS-96TX].
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
476
control regulations in the United States are local, and are tailored to the
particular risks of gun use in densely populated areas.”
205
While the majority of these local regulations take the form of tighter
controls and restrictions on the possession, sale, and use of firearms, the
geographical variance described above counsels in favor of allowing rural
areas to engage in local deregulatory efforts as they see fit. Thus, although
the purpose of Second Amendment Sanctuary resolutions may be to thwart
perceived unconstitutional infringements by the state, the effect of these
resolutions—fewer restrictions on gun ownership and use in rural areas—
may make good policy sense from a normative standpoint.
206
D. Constitutional Home Rule
The historical and normative case for firearm localism also provides
strong legal arguments in favor of limited local autonomy via constitutional
home rule. This type of autonomy derives from two sources: state
constitutions protecting home rule and emerging Second Amendment
doctrine under the federal Constitution.
The most direct way for localities to resist state law preemption is
through state constitutional home-rule guarantees.
207
While many states do
not afford such constitutional protections to localities, “[i]n those few states
that do, courts often have to determine whether a municipal ordinance is a
matter of ‘local concern’ immune from contrary state enactments.”
208
Admittedly, most courts have defined “local concern” narrowly and deemed
even the most intralocal regulation to fall within the state’s broad sovereignty
powers.
209
However, even though state courts “are generally wary of broad
205
Blocher, supra note 23, at 99–100 (citation omitted).
206
Critics of localism often respond that states are still the “best political unit to make these
decisions, and that urban and rural residents should hash out their differences in state legislatures.” Id. at
135. A reframing of this argument might ask: how far down do we decentralize? If localism is good for
the county, why not the neighborhood, the block, the individual house? This sort of localism going “all
the way down” is unworkable insofar as it would create a patchwork of regulations without the sort of
defined boundaries of operation provided by municipal boundaries. Heather K. Gerken, Federalism All
the Way Down, 124 HARV. L. REV. 4, 8 (2010) (recasting institutional sovereignty as incorporating
individualized “rebellious decisions” where “minorit[ies] rule without sovereignty”).
207
See Gulasekaram et al., supra note 16, at 857 (“[L]ocalities in home-rule states are granted a
blanket delegation of power. This often includes the authority to enact local regulations without the need
for further state authorization.”); Barron, supra note 157, at 2347 (“[Constitutional] [h]ome rule
provisions . . . symbolize the degree to which state law seems to reject the preference for local legal
powerlessness, a preference rooted in the old state creature conception of local power.”).
208
Schragger, supra note 19, at 1220.
209
See Sterling Beef Co. v. City of Fort Morgan, 810 F.2d 961, 963 (10th Cir. 1987) (finding
“Colorado’s constitutional Home Rule Amendment’s guarantee of local autonomy [] too general to” allow
local permitting of utilities in contravention of state anticompetitive practices).
115:437 (2020) Second Amendment Sanctuaries
477
grants of local power,”
210
courts and legislatures alike are showing a greater
willingness to recognize local home rule and, through it, intrastate
federalism.
211
This intrastate federalism has roots in the “new federalism” movement
of the last three decades.
212
For over fifty years, interstate commerce was
defined so broadly as to leave little sovereign room at all for states.
213
Beginning with the Rehnquist Court, new federalism set tangible limits to
the interstate commerce power, including in firearm regulation.
214
Some state
constitutions envision a similar type of “new subfederalism,” at least in
theory, if not in practice.
In Colorado, for example, courts considering whether a policy is
sufficiently of local concern to fall within the state’s home-rule guarantees
examine three factors: whether a need for statewide uniformity exists,
whether statewide legislation has a significant impact on individual
localities, and whether there is a history and tradition of local regulation.
215
In practice, all three factors favor local firearm autonomy. The geographical
and cultural variances of urban and rural localities in many ways require
locally tailored solutions to firearms, thus outweighing the need for statewide
uniformity. Further, statewide preemption of such tailoring would
unnecessarily “flatten these deep differences, potentially to the detriment of
210
Schragger, supra note 19, at 1220–21; see also Lynn A. Baker & Daniel B. Rodriguez,
Constitutional Home Rule and Judicial Scrutiny, 86 DENV. U. L. REV. 1337, 1342–43 (2009) (“[Even in
states where] constitutional home rule exists, some have state courts that have largely declined to subject
state legislation to scrutiny under the rubric of home rule; . . . . insofar as the state legislature attempts to
preempt local action, the state typically wins and local governments lose.” (internal citations omitted)).
211
See Baker & Rodriguez, supra note 210, at 1372 (drawing preliminary descriptive conclusion that
“state courts do have a significant role to play in ensuring the local autonomy mandated by constitutional
home rule”).
212
See Gulasekaram et al., supra note 16, at 856 (“[L]ike the trajectory of federalism, the
development of localism in many states has been toward expanding local autonomy and increasing limits
on state interference.”); see also Allison H. Eid, Federalism and Formalism, 11 WM. & MARY BILL RTS.
J. 1191, 1198 (2003) (outlining the contours of the Rehnquist Court’s “New Federalism” approach, which
is “a revitalization of federalism principles on many doctrinal fronts, including the Tenth Amendment,
the Commerce Clause, the Eleventh Amendment, and Section 5 of the Fourteenth Amendment”).
213
See Ernest A. Young, The Rehnquist Court’s Two Federalisms, 83 TEX. L. REV. 1, 135–38 (2004).
214
See United States v. Lopez, 514 U.S. 549, 551 (1995) (invalidating the Gun-Free School Zones
Act of 1990); see also Young, supra note 213, at 1 (hailing the “Federalist Revival”); Eid, supra note
212, at 1210–16 (describing the “New Federalism” under the Rehnquist Court).
215
See Schragger, supra note 19, at 1222; Paul A. Diller, Reorienting Home Rule: Part 2—
Remedying the Urban Disadvantage Through Federalism and Localism, 77 LA. L. REV. 1045, 1067–68
(2017) (“[In Colorado,] the extent of immunity for local regulatory enactments depends completely on
the distinction between ‘local’ and ‘statewide.’ To articulate this distinction, the Colorado Supreme Court
has relied on several criteria. Most prominent among them are tradition, extraterritorial effects, and the
need for statewide uniformity.” (citation omitted)).
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
478
both” types of localities.
216
And an unmistakable tradition of local firearm
regulation existed throughout this country prior to the weaponization of state
preemption for partisan purposes in the 1980s.
217
One compelling response to such a local concern analysis may be that
guns (and the people bearing them) can travel from locality to locality in a
way that farms and fracking sites cannot. In other words, nothing prevents
bad actors from traveling to unregulated rural counties to make a purchase
they could not make in more regulated cities. Therefore, firearms are not
truly a local concern, but rather a state, regional, or even national concern.
218
But the significant variance in the use of firearms and the rates of gun-related
crime in urban and rural areas, as previously discussed, counsels in favor of
at least some moderate local tailoring not otherwise allowed by broad
preemption laws.
In addition, the federal Constitution may provide space for
constitutional home rule as well. The Supreme Court has suggested that other
constitutional interests may limit state policymaking control over local
governments, particularly when a local ordinance seeks to protect a
constitutional right potentially violated by a contrary state enactment.
219
This
suggestion would seem to apply with particular force when the constitutional
right at issue adapts with the locality, like firearm regulation. Indeed, when
considering both the old maxim that incorporated constitutional rights apply
identically to all levels of government and the understanding that
“geographic nonuniformity of constitutional requirements and proscriptions
is a mainstay of American constitutionalism,”
220
the Supreme Court’s
suggestion of limited local control comes into clearer focus. These
statements do not contradict one another but simply reflect that construction
216
Blocher, supra note 23, at 105 (discussing nationwide preemption, though this applies to
statewide preemption as well).
217
Id. at 133; cf. Diller, supra note 215, at 1068 (“Of the Colorado Supreme Court’s factors, tradition
perhaps is the most suspect.”).
218
See, e.g., Kyle Beachy, State Says Zimmerman May Have Crossed State Lines to Buy a Gun in
Indiana, HEART OF ILL. ABC (Apr. 24, 2019, 5:45 PM), https://hoiabc.com/2019/04/24/state-says-
zimmerman-may-have-crossed-state-lines-to-buy-a-gun-in-indiana/ [https://perma.cc/887S-CSG3]
(“[I]n Illinois a person needs a background check, registration, and waiting period before purchasing a
gun from another person . . . . [T]hose checks and balances don’t exist in Indiana . . . . Illinois and Indiana
have the second highest gun transfer rate . . . in the country.” (internal quotation marks omitted)).
219
See, e.g., Romer v. Evans, 517 U.S. 620, 629–31 (1996) (protecting Boulder’s antidiscrimination
ordinance against Colorado’s state law which attempted to preempt the ordinance through an
unconstitutional law singling out LGBTQ+ members); see also Richard C. Schragger, Cities as
Constitutional Actors: The Case of Same-Sex Marriage, 21 J.L. & POL. 147, 167–77 (offering a “localist”
reading of Romer to justify constitutional home rule).
220
Mark D. Rosen, Our Nonuniform Constitution: Geographical Variations of Constitutional
Requirements in the Aid of Community, 77 TEX. L. REV. 1129, 1133 (1999).
115:437 (2020) Second Amendment Sanctuaries
479
of constitutional rights through means–end balancing involves consideration
of context-specific facts often interwoven with variances by locality. “[A]
growing number of scholars have explored and celebrated the role of
localism in constitutional law,”
221
noting specifically the locality’s role in the
First Amendment’s “time, place, and manner” restrictions.
222
This normative
tailoring of rights exists in Second Amendment doctrine as well, where
certain restrictions on gun possession in “sensitive places” have been deemed
“presumptively lawful.”
223
The historical–categorical approach adopted by Justice Antonin Scalia
in Heller provides further support for constitutional localism in Second
Amendment doctrine, though lower federal courts have since opted
overwhelmingly for the more familiar balancing test articulated in Justice
Stephen Breyer’s dissent.
224
Under Justice Scalia’s historical–categorical
approach, “the fact that the United States has a deeply rooted tradition of
comparatively stringent urban gun control is an argument for treating
contemporary urban gun control as, if not ‘presumptively lawful,’ at least
meriting special deference.”
225
The same can be said in reverse. Given rural
America’s deeply rooted lack of firearm regulation, owing to its historically
robust gun culture, local tailoring of firearm restrictions should look
different, or at least come from the popularly elected officials in those
localities.
This local tailoring does not mean that states would fall victim to an
unworkable patchwork of wildly divergent gun laws, with total bans in cities
and complete deregulation just beyond the city limits. “[T]ailoring would
operate only at the margins” because the Supreme Court has created several
221
See Blocher, supra note 23, at 88, 129.
222
Id. at 129; see also David J. Barron, Why (and When) Cities Have a Stake in Enforcing the
Constitution, 115 YALE L.J. 2218 (2006).
223
District of Columbia v. Heller, 554 U.S. 570, 626–27 & n.26 (2008).
224
See Gould v. Morgan, 907 F.3d 659, 668 (1st Cir. 2018) (adopting balancing test); United States
v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013) (same); Nat’l Rifle Ass’n of Am. v. Bureau of Alcohol,
Tobacco, Firearms, & Explosives, 700 F.3d 185, 194 (5th Cir. 2012) (same); United States v. Greeno,
679 F.3d 510, 518 (6th Cir. 2012) (same); Ezell v. City of Chicago, 651 F.3d 684, 703–04 (7th Cir. 2011)
(same); United States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010) (same); United States v. Reese,
627 F.3d 792, 800–01 (10th Cir. 2010) (same); United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir.
2010) (same); Adam Winkler, Scrutinizing the Second Amendment, 105 MICH. L. REV. 683, 715–26
(2007) (analyzing the “reasonable regulation standard” used by state courts). Compare Heller, 554 U.S.
at 626–27 (Justice Scalia defining categories of permissible firearms regulation based on “historical
tradition,” including “longstanding prohibitions on the possession of firearms by felons and the mentally
ill” and “prohibiti[ons] [on] the carrying of ‘dangerous and unusual weapons’”), with id. at 689 (Breyer,
J., dissenting) (“I would simply adopt . . . an interest-balancing inquiry explicitly.”).
225
Blocher, supra note 23, at 87 (quoting Heller, 554 U.S. at 627 n.26).
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
480
bright-line guideposts for permissible regulation.
226
For instance, after
Heller, citywide handgun bans are likely always unconstitutional, while
prohibitions on possession in “sensitive places” likely remain safe from
constitutional challenge.
227
But local tailoring would allow for
experimentation and adaptation of more nuanced regulations such as
background checks or extreme risk laws, at least until the Supreme Court
provides clarity on their validity.
In sum, a compelling case can be made for the local tailoring of gun
regulations in Second Amendment doctrine. Justice Scalia’s historical
approach supports a localism lens for gun laws as a matter of tradition.
Justice Breyer’s means–end approach also supports local tailoring, as the
“important interests” implicated by “gun-control regulation” require
consideration of several factors, of which one should be the unique needs of
the local jurisdictions at issue.
228
Thus, a normative and jurisprudential case exists for the viability of
Second Amendment Sanctuary resolutions as a permissible form of local
regulation. But even if the recent partisan wave of “hyper preemption”
prevents the widespread adoption of constitutional home rule for firearms,
the passive nature of these sanctuary resolutions may create a second avenue
for viability.
229
Most of these resolutions do not erect conflicting gun-control
ordinances, but merely passively resist statewide enactments and require
state officials to enforce state law. Thus, regardless of whether a locality has
a state or federal constitutional right to home rule, there still exists the
question of whether a locality can decline enforcement of superior state law
or whether states can commandeer local officials to compel compliance. We
turn to that issue now.
III. SANCTUARIES AND COMMANDEERING
Local resistance to superior governmental authority predictably begins
with a consideration of federalism principles. Although these principles
“include[] relationships between the national government, state
governments, and local governments, the legal frameworks for these
226
See id. at 129.
227
See Joseph Blocher, Bans, 129 YALE L.J. 308, 356 (2019) (considering future possibilities for
“laws that are today subject to per se invalidity, like handgun bans”); Heller, 554 U.S. at 626 (“[N]othing
in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of . . . firearms
in sensitive places such as schools and government buildings . . . .”).
228
Heller, 554 U.S. at 689 (Breyer, J., dissenting).
229
See Scharff, supra note 20, at 1476.
115:437 (2020) Second Amendment Sanctuaries
481
relationships differ dramatically.”
230
The United States Constitution grants to
the federal government only those powers specifically enumerated to it, and
even when the federal government acts within those powers, it may not
compel a state or local government to enforce federal law.
231
Thus, although
the federal government has the exclusive right to regulate immigration,
232
courts have consistently found that state and local governments have a Tenth
Amendment right to be free from federal compulsion to enforce federal
immigration law, or, put another way, a right to be free from
“commandeering.”
233
No similar right adheres to local governments to be free from state
compulsion to enforce state law. Thus, at first blush, not only are states free
to preempt local law, but they also are able to commandeer localities to
enforce state or federal law. This commandeering may involve removing
enforcement discretion traditionally afforded to local officials like sheriffs
and prosecutors, as “anti-sanctuary” states like Texas and North Carolina
have attempted in the immigration context.
234
This Part asserts that a limited form of subfederal anticommandeering
should insulate local entities from such state commandeering, at least when
the local resistance remains entirely passive in nature and a superior body of
law, like a federal statute or the United States Constitution, provides support
for the resistance.
A. Local–Federal Anticommandeering
In Printz v. United States,
235
the Supreme Court recognized a state’s
right to be free from federal compulsion under longstanding federalism
230
Id. at 1475 (footnote omitted); see also Gulasekaram et al., supra note 16, at 852.
231
See Gulasekaram et al., supra note 16, at 852 (“[W]hile the Constitution gives the federal
government broad authority to preempt state and local laws, especially with respect to immigration, the
federalism structure of the United States also prohibits the federal government from commandeering
states to implement federal policies.”).
232
Arizona v. United States, 567 U.S. 387, 394–95, 400 (2012); Gulasekaram et al., supra note 16,
at 851.
233
See Gulasekaram et al., supra note 16, at 852.
234
S.B. 4, 85th Leg., Reg. Sess. (Tex. 2017) (enacted) (overriding all municipal policies and
practices that may limit federal immigration enforcement, including discretionary law enforcement
practices); WBTV Web Staff, Gov. Cooper Vetoes Bill Requiring Sheriffs to Cooperate with ICE, WBTV
(Aug. 20, 2019, 3:55 PM), https://www.wbtv.com/2019/08/20/nc-house-passes-bill-requiring-sheriffs-
cooperate-with-ice-bill-heads-gov-roy-cooper/ [https://perma.cc/P8P8-FP4Z] (explaining that North
Carolina’s governor vetoed HB370, which would “authorize the removal of a sheriff from office for
failing to comply with ICE detainers” because, according to a state sheriff, it would allow “the legislature
to take away the authority of each duly elected Sheriff in North Carolina to make discretionary decisions
in the best interest of his or her constituents”).
235
521 U.S. 898 (1997).
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
482
principles articulated in the Tenth Amendment.
236
Justice Scalia announced
this anticommandeering principle, stating that “[t]he Federal Government
may neither issue directives requiring the States to address particular
problems, nor command the States’ officers, or those of their political
subdivisions, to administer or enforce a federal regulatory program.”
237
The
Court made clear in a subsequent case that such coercion can take the form
of threats to withhold federal funding as well as direct commands to act.
238
This “is true whether Congress directly commands a State to regulate or
indirectly coerces a State to adopt a federal regulatory system as its own.”
239
Printz marked a seminal victory for Tenth Amendment federalists and
for the gun-rights movement, as it struck down provisions of the Brady
Handgun Violence Prevention Act that required local police officers to
conduct federal background checks prior to the sale or transfer of a
handgun.
240
Thus, a direct federal command could be resisted on Tenth
Amendment grounds by states, municipalities, and even individual local
officers. For sanctuary-jurisdiction purposes, “the Court does not distinguish
cities [or counties] from states when considering federalism objections to
federal lawmaking . . . . [T]he Supreme Court does not draw a distinction
between local and state for purposes of its commandeering and coercive
spending doctrines,”
241
meaning that the federal government could similarly
not commandeer a locality.
Dating as far back as 1996, immigrant sanctuary cities have asserted
their Tenth Amendment right to resist federal immigration enforcement.
242
236
Id. at 919, 933 (citing New York v. United States, 505 U.S. 144, 188 (1992)).
237
Id. at 935.
238
See Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 577–78 (2012) (holding that the federal
government cannot coerce states to expand Medicaid by threatening to withhold funding for Medicaid
programs already in place, “[o]therwise the two-government system established by the Framers would
give way to a system that vests power in one central government, and individual liberty would suffer”).
239
See id. at 578.
240
Printz, 521 U.S. at 927–28 (rejecting the argument that short background checks consuming no
“more than one-half hour of an officer’s time” is a permissible “federal intrusion upon state authority”).
Since Printz and Heller, some states have passed legislation claiming a Tenth Amendment right to be
exempt from federal firearm regulations, though these statutes more accurately attempt to define intrastate
firearm activity beyond the reach of the federal government’s Commerce Clause power. See, e.g., KAN.
STAT. ANN. § 50-1202 (2018) (declaring rights under the Second, Ninth, and Tenth Amendments to be
free from federal firearm regulations); WYO. STAT. ANN. § 6-8-406(a)(v), (viii) (2018) (declaring that the
people of Wyoming “have the sole and exclusive right of governing themselves” in all matters related to
firearms unless the people of Wyoming “expressly delegate[] to the United States of America” that right).
241
Schragger, supra note 19, at 1216–17. The petitioners in Printz were municipal officers—local
sheriffs. 521 U.S. at 931 n.15.
242
City of New York v. United States, 179 F.3d 29, 33 (2d Cir. 1999) (explaining New York City’s
contention that Congress is “forbid[ding] state and local government entities from controlling the use of
115:437 (2020) Second Amendment Sanctuaries
483
That year, Congress enacted legislation preventing state and local
governments from issuing gag orders to their police officers regarding
communication with federal authorities about an individual’s immigration
status.
243
New York City challenged the law on Tenth Amendment grounds,
but the Second Circuit upheld the law, explaining that “Congress ha[d] not
compelled state and local governments to enact or administer any federal
regulatory program.”
244
Rather than “affirmatively conscript[ing] states,
localities, or their employees into the federal government’s service,” the
statute merely prohibited states and cities from disallowing their officers to
voluntarily assist with federal immigration functions.
245
Renewed litigation
over the constitutionality of this statute is pending in several courts, with
some early victories for sanctuary activists.
246
Other courts have concluded that affirmative requests from federal
immigration officials to assist with enforcement functions, whether through
the honoring of a detainer request or more broadly through a contractual
local–federal cooperation agreement, more commonly known as “287(g)
agreements,” “must be deemed requests” because any other interpretation
would render them unconstitutional under the Tenth Amendment.
247
More recently, President Trump’s Executive Order on Immigration
threatens sanctuary cities with a loss of federal funds if they do not cooperate
with federal immigration officials.
248
The Order was challenged by sanctuary
jurisdictions on numerous grounds, including Tenth Amendment
information regarding the immigration status of individuals obtained in the course of their official
business” in violation of the city’s Tenth Amendment rights).
243
8 U.S.C. § 1373 (preventing local governments from “in any way restrict[ing] any government
entity or official from sending to, or receiving from, the [federal immigration enforcement agency]
information regarding the . . . immigration status . . . of any individual”).
244
City of New York, 179 F.3d at 35.
245
Id. (“These sections do not directly compel states or localities to require or prohibit anything.”).
246
See, e.g., City of Chicago v. Sessions, 321 F. Supp. 3d 855, 872 (N.D. Ill. 2018) (finding 8 U.S.C.
§ 1373 unconstitutional under the Tenth Amendment); City and County of San Francisco v. Trump,
897 F.3d 1225, 1233 (9th Cir. 2018) (questioning the constitutionality of an executive order enforcing
8 U.S.C. § 1373); see also Blackman, supra note 143, at 982 (arguing that “Section 1373(a) [i]s [f]acially
[u]nconstitutional”).
247
Galarza v. Szalczyk, 745 F.3d 634, 643 (3d Cir. 2014); see also David S. Rubenstein &
Pratheepan Gulasekaram, Immigration Exceptionalism, 111 NW. U. L. REV. 583, 644–45 (2017) (noting
that “the anti-commandeering principle and related state sovereignty rationales play leading roles in the
scholarship defending subfederal sanctuary policies”).
248
Exec. Order No. 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017) (asserting that “[s]anctuary
jurisdictions . . . willfully violate Federal law in an attempt to shield aliens from removal” and
“[e]nsur[ing] that jurisdictions that fail to comply with applicable Federal law do not receive Federal
funds”).
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
484
anticommandeering grounds.
249
The Ninth Circuit affirmed enjoining the
Order in 2018 in City and County of San Francisco v. Trump,
250
but did not
resolve the Tenth Amendment question.
251
Instead, the court found that such
financial coercion through an executive order violated separation of powers
because Congress holds “the power of the purse.”
252
Notably, the lower court
also voided the Order for vagueness because it merely referenced “sanctuary
cities” as targets of the Order without defining the term.
253
While the
distinction between impermissible commandeering and permissible federal
requests for local assistance has become increasingly blurred in the
immigration-sanctuary context, local–federal anticommandeering
nevertheless remains a hallmark of the federalism principles articulated in
the Tenth Amendment.
B. Subfederal Commandeering
These federalism challenges underlying immigrant sanctuary cities
often act as proxies for “an ongoing struggle between state and local
governments.”
254
But the protections afforded to “subordinate” governments
against federal intervention do not exist at the local–state level.
255
“[W]hen
state and municipal officials disagree, the Supreme Court’s doctrine and
rhetoric of state sovereignty reinforce state power,” rendering localities
vulnerable to state commandeering and intervention.
256
In the immigration-
sanctuary context, the question arises as to whether states can commandeer
localities to comply with federal immigration law when the federal
government itself has no such authority.
257
Early attempts by states to wield this plenary power over local sanctuary
jurisdictions is happening now, as an increasing number of states pass anti-
sanctuary legislation requiring local governments to cooperate with federal
249
See, e.g., County of Santa Clara v. Trump, 250 F. Supp. 3d 497, 525 (N.D. Cal. 2017).
250
897 F.3d 1225 (9th Cir. 2018).
251
Id. at 1235 n.5.
252
Id. at 1231 (“The United States Constitution exclusively grants the power of the purse to
Congress, not the President.”).
253
County of Santa Clara v. Trump, 275 F. Supp. 3d 1196, 1217 (N.D. Cal. 2017), aff’d in part,
vacated in part, remanded sub nom. City of San Francisco v. Trump, 897 F.3d 1225 (9th Cir. 2018).
254
Scharff, supra note 20, at 1473 (citation omitted); see also Su, supra note 34, at 233.
255
See generally supra notes 224–226 and accompanying text.
256
Schragger, supra note 19, at 1217 (“The constitutional principle of state sovereignty lends itself
to the view that municipalities are ‘mere instrumentalities’ of their states . . . . On this view, states can
control, commandeer, or entirely eliminate their local governments.” (footnote omitted)).
257
See id. at 1218–19 (arguing that states “cannot force cities to do what the state or federal
governments cannot each do separately”).
115:437 (2020) Second Amendment Sanctuaries
485
immigration authorities.
258
In Texas, for example, SB4 “requires local
officials to comply with federal immigration law on threat of civil and
criminal liability.”
259
Such a law clearly would amount to commandeering if
passed by Congress, but can this type of “subfederal commandeering” by
state governments circumvent the Tenth Amendment protections from
federal interference that run to local governments?
The answer to that question is perhaps. Professor Richard Schragger has
argued:
If the protections of the Tenth Amendment run to the state of Texas, then one
would assume that the state could waive this protection. However, if the Tenth
Amendment runs to the people, then Texas cannot force its cities to do what the
state or federal governments cannot each do separately. Local officials, in other
words, could assert their own anticommandeering objection . . . .
260
While subfederal commandeering statutes like SB4 coerce local
governments to enforce federal law, thereby triggering possible Tenth
Amendment challenges, then Second Amendment Sanctuaries, in contrast,
seek protection from state law. Does a similar subfederal
anticommandeering principle exist in the face of a state law command to
enforce state law?
C. Subfederal Anticommandeering?
Subfederal anticommandeering, if embraced by the courts, would
represent a “novel” reframing of local–state power sharing.
261
But while “no
state court has explicitly adopted a state anticommandeering doctrine in
258
See, e.g., Ryan Newton, Kansas Among Several States Looking to Ban Sanctuary Cities,
KSN.COM (Feb. 2, 2016, 3:19 PM), http://ksn.com/2016/02/02/kansas-among-several-states-looking-to-
ban-sanctuary-cities/ [https://perma.cc/9M3B-UP4H] (discussing multiple proposed laws to either ban
sanctuary cities or restrict funding to “cities that don’t cooperate with immigration officials”); H.B. 179,
132d Gen. Assemb., Reg. Sess. (Ohio 2017) (restricting funding to local jurisdictions that do not
cooperate in enforcing federal immigration laws and providing for removal and prosecution of local
government officers); see also Schragger, supra note 19, at 1180–81 (“Since November 2016, at least
fifteen additional states have proposed legislation to preempt sanctuary cities. Of those states, four do not
have any known sanctuary cities: Arkansas, Idaho, Oklahoma, and Tennessee.” (footnotes omitted)).
259
Schragger, supra note 19, at 1218; see also TEX. GOV’T CODE ANN. §§ 752.053, .056 (West 2017)
(“A local entity . . . may not: (1) adopt, enforce, or endorse a policy under which the entity or department
prohibits or materially limits the enforcement of immigration laws . . . .”); TEX. PENAL CODE ANN.
§ 39.07 (West 2017) (classifying the failure of a jail administrator to comply with an immigration detainer
request as a misdemeanor).
260
Schragger, supra note 19, at 1218–19; see also Bond v. United States, 564 U.S. 211, 222 (2011)
(“By denying any one government complete jurisdiction over all the concerns of public life, federalism
protects the liberty of the individual from arbitrary power.”).
261
Schragger, supra note 19, at 1219 (“[But] the principle is sound if one assumes that the people
act most immediately through their local governments.”).
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
486
name,” the principle may already exist in certain constitutional home-rule
states.
262
Courts in a variety of contexts have held that home-rule states
cannot direct local officials to take affirmative actions to implement
statewide regulations.
For instance, in State ex rel. Sprague v. City of St. Joseph,
263
the
Missouri Supreme Court invalidated a state mandate that local officials serve
on a state-created board of examiners, finding that the mandate violated the
state constitutional bar on the legislature “fixing the powers, duties or
compensation of any municipal office.”
264
And in Ohio, where the state
constitution broadly prohibits state “influence[] or control[]” over
municipalities, the Ohio Supreme Court invalidated state attempts to regulate
the organization and function of local police forces.
265
These decisions reflect
an effort to give teeth to constitutional home-rule provisions, at least in
circumstances where state enactments attempt directly to command actions
from local officers.
266
Of course, these decisions setting state commandeering
boundaries in home-rule states provide little comfort to Second Amendment
Sanctuaries in Dillon’s Rule states.
267
Moreover, state mandates in both
home-rule and Dillon’s Rule states requiring local officials to create specific
regulatory agencies intrude far more directly on local autonomy than
statewide regulations on firearms that do not explicitly command local
officials to undertake implementation activities in furtherance of those
262
Gulasekaram et al., supra note 16, at 860.
263
549 S.W.2d 873 (Mo. 1977) (en banc).
264
Id. at 875; see also State ex rel. Burke v. Cervantes, 423 S.W.2d 791, 794 (Mo. 1968) (striking
down state law requiring locality to create an arbitration board).
265
Lorain St. R.R. Co. v. Pub. Utils. Comm’n, 148 N.E. 577, 580 (Ohio 1925) (Marshall, C.J.,
concurring); OHIO CONST. art. XVIII; see also State ex rel. Lynch v. City of Cleveland, 132 N.E.2d 118,
121 (Ohio 1956) (holding that a city is not subject to state law in how it selects its police chief); Harsney
v. Allen, 113 N.E.2d 86, 88 (Ohio 1953) (“The organization and regulation of its police force, as well as
its civil service functions, are within a municipality’s powers of local self-government.”).
266
But see State ex rel. Young v. Robinson, 112 N.W. 269, 270 (Minn. 1907) (explaining that when
state laws operate within a municipality, “the municipality and its officers are . . . subject to the command
and control[] of the state government at all times”); State ex rel. Burns v. Linn, 153 P. 826, 831 (Okla.
1915) (holding that the State of Oklahoma may impose duties and penalties upon local officers).
267
The number of states employing some version of Dillon’s Rule statewide varies between thirty-
one and thirty-nine, depending on the criteria, while another eight states employ the rule to certain
municipalities. Elijah Swiney, John Forrest Dillon Goes to School: Dillon’s Rule in Tennessee Ten Years
After Southern Constructors, 79 TENN. L. REV. 103, 105–06 (2011); Home Rule and Dillon’s Rule States,
NAT’L. LEAGUE OF CITIES, https://db0nus869y26v.cloudfront.net/en/Home_rule_in_the_United_States
[https://perma.cc/V2GU-8W9Q]; see also Jesse J. Richardson, Jr., Meghan Zimmerman Gough & Robert
Puentes, Is Home Rule the Answer? Clarifying the Influence of Dillon’s Rule on Growth Management,
BROOKINGS (Jan. 1, 2003), https://www.brookings.edu/research/is-home-rule-the-answer-clarifying-the-
influence-of-dillons-rule-on-growth-management/ [https://perma.cc/9UNN-PRCR] (citing similar
statistics).
115:437 (2020) Second Amendment Sanctuaries
487
regulations. For example, enforcement of universal background checks
legislation would only require expanding the use of existing agency
machinery, and both assault weapons bans and extreme risk laws would only
require enforcement through existing police and judicial agencies.
268
This
type of expanded use of the existing local government apparatus seems far
less intrusive than mandating the creation of a new board of examiners or
law enforcement agency. Therefore, courts may not similarly find that these
firearm regulations would rise to a similar level of unconstitutional intrusion
on local activity.
However, there may be a second avenue for a broader
anticommandeering doctrine, at least in circumstances where federal
statutory or constitutional law limits state action. Courts have long
“recognized that states do not exercise plenary power over their political
subdivisions when federal law operates directly on those subdivisions.”
269
For example, the Supreme Court has held that states can neither interfere
with federal funds granted to localities
270
nor be compelled to satisfy a federal
judgment against a locality.
271
Likewise, localities appear immune from state
gun-control regulations that conflict with federal statutes or the United States
Constitution. But this immunity would stem not from a state’s improper
commandeering of a locality, but rather from the state’s improper enactment
of a regulation that conflicts with federal statutory law.
Further, a more nuanced subfederal anticommandeering principle may
reside in the Supreme Court’s treatment of localities as independent entities
when the interpretation of a constitutional right requires local tailoring. For
example, in Avery v. Midland County,
272
the Court held that local
governments must adhere to the “one person, one vote” principle in
implementing constitutional voting protections.
273
And in Milliken v.
Bradley,
274
the Court held that for federal constitutional purposes, the
268
Cf. Tabnie Dozier, Nevada Sheriffs React to Background Check Act, KOLO TV (Mar. 14, 2019,
12:45 AM), https://www.kolotv.com/content/news/Nevada-sheriffs-reacting-to-background-check-act-
507130021.html [https://perma.cc/7YRE-8C88] (quoting Douglas County, Nevada sheriff who claimed
enforcement of universal background checks laws is too resource intensive: “I would have to create some
sort of unit in my department that just does this so you’d have to go out and find someone that attempts
to sell and then you’ve caught them.”).
269
Schragger, supra note 19, at 1219 (articulating the existence of a “limited ‘shadow doctrine’ of
local-government status that could be invoked to make out a larger anti-commandeering claim” (citation
omitted)).
270
Lawrence County v. Lead-Deadwood Sch. Dist. No. 40-1, 469 U.S. 256, 257–58 (1985).
271
Louisiana ex rel. Folsom v. Mayor of New Orleans, 109 U.S. 285, 287–90 (1883).
272
390 U.S. 474 (1968).
273
See id. at 480.
274
418 U.S. 717 (1974).
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
488
relevant boundary lines for desegregation are within local school districts
and not the state as a whole.
275
These cases are instructive for the Second Amendment Sanctuary
context. In both Avery and Milliken, the Court articulated not only that a
constitutional right applies uniformly and with equal force across the
country, but also that the doctrine through which that right is interpreted
requires local tailoring. All states must desegregate schools under the
Fourteenth Amendment, but the measurement of adequate desegregation
efforts that are necessary must reflect the individual characteristics of local
school districts themselves. Likewise, all states and their local subdivisions
must adhere to federal “one person, one vote” guarantees by locally tailoring
redistricting efforts to prevent dilution. Similarly, certain firearm restrictions
may run afoul of the “core” Second Amendment right of self-defense,
276
but
only in certain locations or geographies tailored according to their local
needs. Much like how Second Amendment doctrine allows firearm
prohibitions in “sensitive places,” a broader argument can be made that such
context-specific constitutional line-drawing for firearms regulation should
similarly reflect the urban–rural divide driving those tailored regulations.
277
On that logic, localities could make a federal argument for subfederal
anticommandeering by claiming that their passive resistance to a state
enactment is required by the United States Constitution. While a statewide
gun-control measure might not violate the Second Amendment per se, its
application to a particular municipality might do so because it fails to be
sufficiently tailored to the locality’s needs. Short of affirmatively erecting
contrary regulations subject to preemption (as discussed in Part II) or
challenging in court the legality of the statewide enactment (subject to
standing concerns discussed in Part IV), these localities could assert the
passive right to resist as a form of anticommandeering, irrespective of the
existence of a state home rule.
Whether such an argument can secure the viability of Second
Amendment Sanctuaries depends on the constitutional case for such local
tailoring. The next Part explores this constitutional issue as well as the
275
Id. at 744–45.
276
District of Columbia v. Heller, 554 U.S. 570, 628, 630 (2008) (finding that a regulation requiring
“any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it
inoperable” “makes it impossible for citizens to use [arms] for the core lawful purpose of self-defense
and is hence unconstitutional”); Young v. Hawaii, 896 F.3d 1044, 1070 (9th Cir. 2018) (“While the
Amendment’s guarantee of a right to ‘keep’ arms effectuates the core purpose of self-defense within the
home, the separate right to ‘bear’ arms protects that core purpose outside the home.”).
277
See Blocher, supra note 23, at 83 (“Second Amendment doctrine is largely becoming a line-
drawing exercise, as courts try to determine which ‘Arms’ are constitutionally protected, which ‘people’
are permitted to keep and bear them, and in which ways those arms and people can be regulated.”).
115:437 (2020) Second Amendment Sanctuaries
489
question of which branch of government has the authority to decide how to
tailor to local needs.
IV. SANCTUARIES AND CONSTITUTIONAL INTERPRETATION
Unlike immigrant-sanctuary resolutions that resist federal policy, or
local environmental ordinances that provide alternatives to state or federal
policy, Second Amendment Sanctuary resolutions claim special justification
to resist state law that violates fundamental rights. Many Second
Amendment Sanctuary resolutions reference Heller and McDonald as
justifications for their resistance, proclaiming that any statewide restriction
on gun ownership violates the rulings in these cases.
278
As a consequence, many of these gun sanctuary jurisdictions claim a
right, if not a duty, to ignore gun-control measures they deem
unconstitutional.
279
In Virginia, for example, several county resolutions
expressly state that “constitutional officers,” such as the commonwealth’s
attorneys and police officers, must take an oath to uphold the U.S.
Constitution and not enforce laws contrary to it.
280
In New Mexico, more than
two dozen local sheriffs signed a letter defending their county’s sanctuary
resolutions as mandated by the oath they took when ascending to their
respective offices to uphold only constitutional laws.
281
These resolutions, many of which “oppose any infringement on the
right of law-abiding citizens to keep and bear arms,” suggest a near absolutist
position on the Second Amendment belied by Heller itself.
282
At a minimum,
278
See, e.g., Res. of the Cumberland Cnty. Bd. of Supervisors Declaring Cumberland Cnty. as a
“Second Amendment Sanctuary” (Va. 2019), https://cumberlandcounty.virginia.gov/sites/default/files/
2019-12/121019.BOS_.Addendum.packet_complete.pdf [https://perma.cc/T7HS-Y7HW].
279
See, e.g., id. (reserving right “to direct the law enforcement and employees . . . to not enforce any
unconstitutional” gun regulation); Gregory Gwyn-Williams, Jr., 340 Sheriffs Refuse to Enforce
Unconstitutional Gun Control Laws, CNS NEWS (Mar. 19, 2013, 9:57 AM),
https://www.cnsnews.com/blog/gregory-gwyn-williams-jr/340-sheriffs-refuse-enforce-unconstitutional-
gun-control-laws [https://perma.cc/RC6J-4JDR].
280
See Toscano, supra note 5.
281
Defiant: Dozens of New Mexico Sheriffs Take Stance Against State’s New Gun Control
Legislation, NAT’L SENTINEL (Feb. 10, 2019), https://thenationalsentinel.com/2019/02/10/defiant-
dozens-of-new-mexico-sheriffs-take-stance-against-states-new-gun-control-legislation/ [https://
perma.cc/AG57-9ETX] (quoting Lea County Sheriff Corey Helton, who explained, “I’m proud to say
I’m a constitutional sheriff and I’m just not going to enforce an unconstitutional law . . . . My oath
prevents me from doing that.” (internal quotation marks omitted)).
282
See, e.g., Res. of the Cumberland Cnty. Bd. of Supervisors, supra note 278; see also District of
Columbia v. Heller, 554 U.S. 570, 627 (2008) (“Like most rights, the right secured by the Second
Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts
routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner
whatsoever and for whatever purpose.”).
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
490
they appear to assume that background checks, assault weapons bans, and
extreme risk laws violate the Second Amendment, when those legal issues
are in reality far from settled.
The constitutional dimension of these resolutions raises two important
questions: are the proposed regulations unconstitutional, and who has the
authority to make that determination?
A. The Second Amendment in “Flux”
While it is beyond the scope of this Article to settle the constitutional
validity or invalidity of background checks, extreme risk laws, and assault
weapons bans, it is important to note that Second Amendment doctrine
remains “in a state of flux,” relatively unconstrained by Supreme Court
precedent.
283
This comparative blank slate in Second Amendment doctrine
leaves much room for debate over regulations operating at the margins of
core Second Amendment guarantees, like the disagreements giving rise to
the current Second Amendment Sanctuary movement.
Underlying this state of flux is the relative newness of Second
Amendment doctrine, as Heller is only twelve years old. “Although Second
Amendment doctrine is beginning to solidify in the lower courts, it remains
open to a range of descriptive and normative accounts and is the subject of
intense disagreement.”
284
Given the complexity of the Heller decision itself,
courts have since disagreed over foundational questions of Second
Amendment interpretation, such as what doctrinal test to apply,
285
whether
and to what extent history is relevant,
286
whether a local dimension exists in
283
Noah, supra note 147, at 189, 193; see also Blocher, supra note 23, at 129; Blocher & Miller,
supra note 35, at 324 (“[I]n part because it is so new, . . . the right to keep and bear arms presents a unique
opportunity to explore . . . broad constitutional issues.”).
284
Blocher, supra note 227, at 341–42 (footnotes omitted).
285
See, e.g., Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1273, 1275 (D.C. Cir. 2011)
(Kavanaugh, J., dissenting) (contrasting Heller’s “text, history, and tradition” test with the alternative
intermediate and strict scrutiny balancing tests preferred by the Heller dissent and most lower courts).
286
See Heller, 554 U.S. at 605 (defending use of eighteenth- and early-nineteenth-century sources
in considering the scope of the Second Amendment); United States v. Rene E., 583 F.3d 8, 14–15 (1st
Cir. 2009) (considering evidence from a more recent timeframe); see also Patrick J. Charles, The Faces
of the Second Amendment Outside the Home: History Versus Ahistorical Standards of Review, 60 CLEV.
ST. L. REV. 1, 7–11 (2012) (cataloguing conflicting historical accounts of the right to bear arms, dating
back to the Norman Conquest, and the use of these accounts in court).
115:437 (2020) Second Amendment Sanctuaries
491
Second Amendment rights ordering,
287
and whether “bans” on certain classes
of arms can ever survive constitutional scrutiny.
288
Virtually all courts since Heller considering Second Amendment
challenges have examined whether to employ Justice Scalia’s historical–
categorical approach, as explicated in his majority opinion, or Justice
Breyer’s balancing test, as articulated in his dissent.
289
Most scholars and
lower courts have adopted Justice Breyer’s balancing test approach, which
is akin to the standards of scrutiny found in other areas of constitutional law,
namely the familiar “coverage-protection” two-step analysis.
290
“Coverage
refers to the threshold question of whether a particular person, activity, or
thing triggers constitutional analysis at all.”
291
If constitutional analysis is
triggered, the court then engages in a “protection” means–end analysis to
determine if the end purpose of a particular government action is sufficiently
important and is accomplished through sufficiently narrow means.
292
In the
Second Amendment context, this protection test has resembled intermediate
scrutiny in function, if not in name.
293
But even when the court can agree on
invocation of this test, significant disagreement arises over how much to
287
See, e.g., Wrenn v. District of Columbia, 864 F.3d 650, 669 (D.C. Cir. 2017) (“Regulations
restricting public carrying are all the more compelling in a geographically small but heavily populated
urban area like the District.”).
288
See Heller II, 670 F.3d at 1260 (upholding bans on semiautomatic rifles as a constitutional ban
on “dangerous and unusual weapons,” as opposed to weapons “typically possessed by law-abiding
citizens for lawful purposes”); id. at 1285 (Kavanaugh, J., dissenting) (arguing that applying intermediate
scrutiny “to a ban on a class of arms” is inappropriate because a “ban on a class of arms is not an
‘incidental’ regulation[,] . . . [but] is equivalent to a ban on a category of speech”); Blocher, supra note
227, at 313 (observing that then-Judge Kavanaugh’s argument would render bans on firearms per se
invalid “even if they would satisfy strict scrutiny, presenting the inverse of the more common claim that
certain weapons are entirely unprotected by the Second Amendment”).
289
Eric Ruben & Joseph Blocher, From Theory to Doctrine: An Empirical Analysis of the Right to
Keep and Bear Arms After Heller, 67 DUKE L.J. 1433, 1455, 1490–92 (2018) (collecting data on nearly
1,000 post-Heller cases and noting how courts often discuss the historical versus means–end tests).
290
Id. at 1491 tbl.12, 1492 tbl.13 (finding that nearly half of all post-Heller opinions explicitly
employ the means–ends test, while 16% discuss historical sources).
291
Blocher, supra note 227, at 319–20.
292
See, e.g., United States v. Hosford, 82 F. Supp. 3d 660, 664 (D. Md. 2015) (“If the challenged
regulation burdens conduct that was within the scope of the Second Amendment as historically
understood, then we move to the second step of applying an appropriate form of means-end scrutiny.”
(citing United States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010))).
293
See Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, 691, 692 & n.12 (6th Cir. 2016)
(concluding that intermediate scrutiny applied to a federal firearm prohibition directed at an involuntarily
committed individual, but noting that strict scrutiny might be appropriate in some circumstances); Drake
v. Filko, 724 F.3d 426, 440 (3d Cir. 2013) (“[W]e conclude that the appropriate level of traditional means-
end scrutiny to apply would be intermediate scrutiny.”); Bauer v. Becerra, 858 F.3d 1216, 1230 (9th Cir.
2017) (noting that the court has “repeatedly applied intermediate scrutiny in cases where we have reached
this step”—step two of the two-part test).
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
492
defer to history or tradition, how to define the boundaries of the rights
implicated, and whether this means–end analysis can ever justify a “ban” on
an entire class of arms.
294
Moreover, a substantial minority of courts contend
that this balancing test is inappropriate, given that the majority opinion in
Heller used a historical–categorical analysis.
295
While “assault weapons” bans, generally referring to prohibitions
against the purchase or sale of semiautomatic rifles,
296
have generated the
greatest fault line in this embryonic doctrinal landscape, background checks
and extreme risk laws have also prompted intense constitutional debate in a
relative precedential vacuum. Compelling arguments can be made on either
side under either doctrinal test. As Heller made clear, the history and
tradition of the Second Amendment excluded convicted felons from the class
of “persons” with a right to keep and bear arms, and lower courts employing
a means–end test have almost uniformly found prohibitions on felons
possessing firearms to survive intermediate scrutiny.
297
But both background
checks and extreme risk laws contemplate denying firearm possession to at
least some individuals who are not criminal offenders.
298
Thus, the history
and tradition of denying felons gun-possession rights does not definitively
save these laws. Yet, a court employing a means–end analysis certainly could
294
See, e.g., Binderup v. Att’y Gen., 836 F.3d 336, 363 (3d Cir. 2016) (Hardiman, J., concurring in
part and concurring in the judgments) (finding that when a regulation “entirely bars the challenger from
exercising the core Second Amendment right, any resort to means-end scrutiny is inappropriate once it
has been determined that the challenger’s circumstances distinguish him from the historical justifications
supporting the regulation”).
295
While Professors Ruben and Blocher characterize this percentage as insubstantial, I have a
different view. The fact that one of every six lower court opinions applying Heller—out of nearly 1,000
opinions—expressly reject traditional means–end scrutiny suggests a larger nationwide judicial
disagreement over Second Amendment jurisprudence not resolved by Heller and McDonald. See Ruben
& Blocher, supra note 289, at 1492 (noting that as many as 16% of lower courts apply the historical–
categorical approach); see also United States v. McGinnis, 956 F.3d 747, 761 (5th Cir. 2020) (Duncan,
J., concurring) (“While our opinion today dutifully applies our court’s two-step framework for post-Heller
Second Amendment challenges . . . we should retire this framework in favor of an approach focused on
the Second Amendment’s text and history.”); Nat’l Rifle Ass’n v. Bureau of Alcohol, Tobacco, Firearms,
& Explosives, 714 F.3d 334, 338 (5th Cir. 2013) (Jones, J., dissenting) (“[W]e should presuppose [based
on Heller’s analogy to First Amendment rights] that the fundamental right to keep and bear arms is not
itself subject to interest balancing.”).
296
E. Gregory Wallace, “Assault Weapon” Myths, 43 S. ILL. U. L.J. 193, 193–94 (2018) (defining
assault weapons bans as those laws that “typically criminalize possession or transfer of semiautomatic
rifles with detachable magazines and at least one specified feature,” but noting the lack of a “generally
agreed-upon definition of ‘assault weapon,’” and the faulty reasoning used by some legislators in defining
weapons by “looks”).
297
District of Columbia v. Heller, 554 U.S. 570, 626 (2008); Ruben & Blocher, supra note 289, at
1481 (cataloguing “273 challenges to felon-in-possession statutes,” which “were rejected 99 percent of
[the] time and enjoyed no success at the federal appellate level during [the] study period”).
298
See supra notes 59–79 and accompanying text.
115:437 (2020) Second Amendment Sanctuaries
493
conclude that these laws are narrowly tailored enough to satisfy the
important governmental interest of keeping lethal weapons out of the hands
of spousal abusers or the mentally ill.
299
Accordingly, the constitutional
answer to what the Second Amendment allows and disallows, and even the
test used to arrive at that answer, is far from settled.
This incredibly truncated discussion of the current Second Amendment
landscape is not designed to answer any of these questions, but merely to
highlight how new and unsettled the constitutional landscape remains. It is
within this context that county administrators, sheriffs, and local prosecutors
have announced a refusal to enforce laws they deem violate the Second
Amendment. But are these municipal officers, rather than courts, the
appropriate entities to be tasked with determining such difficult and unsettled
legal questions?
B. First Impression Departmentalism
So, who is up to the task? Many sanctuary jurisdictions claim that
locally elected “constitutional officers” like sheriffs and prosecutors have
both the authority and duty to assume this constitutional interpretation
responsibility.
300
Critics respond that courts have the sole and final say over
“what the law is,”
301
articulating the dominant view of judicial supremacy
that “the Supreme Court simply is the one and only boss of the country when
it comes to deciding the content and bearing of constitutional law.”
302
This
principle, forcefully advanced by the Warren Court and arguably present in
Marbury v. Madison,
303
views the “federal judiciary [as] supreme in the
exposition of the law of the Constitution,” making its decisions the
incontrovertible “supreme law of the land.”
304
299
See, e.g., Hope v. State, 133 A.3d 519, 524 (Conn. App. Ct. 2016) (finding Connecticut ERPO
statute regulating mentally ill gun possession did not implicate the Second Amendment); Comstock v.
Comstock, 780 S.E.2d 183, 184 (N.C. App. Ct. 2015) (upholding issuance of domestic violence
protection order remedy “prohibit[ing] Defendant from possessing or purchasing a firearm”).
300
See Toscano, supra note 5.
301
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
302
Frank I. Michelman, Living with Judicial Supremacy, 38 WAKE FOREST L. REV. 579, 600 (2003);
see also Kenji Yoshino, Restrained Ambition in Constitutional Interpretation, 45 WILLAMETTE L. REV.
557, 557, 562 (2009) (“The question of who may interpret the Constitution is a question of separation of
powers.”).
303
5 U.S. (1 Cranch) at 177.
304
Cooper v. Aaron, 358 U.S. 1, 18 (1958); see also Planned Parenthood of Se. Penn. v. Casey,
505 U.S. 833, 868 (1992) (plurality opinion) (“[The American people’s] belief in themselves [as] a Nation
of people who aspire to live according to the rule of law . . . . is not readily separable from their
understanding of the Court invested with the authority to decide their constitutional cases and speak
before all others for their constitutional ideals.”).
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
494
Judicial supremacy has normative appeal. As Professors Larry
Alexander and Frederick Schauer have explained, law “provides the benefits
of authoritative settlement” and coordination of social behavior.
305
These
advantages “provide reasons for following laws even when one disagrees
with the content of those laws.”
306
Further, stare decisis provides a convenient
vehicle through which to coordinate behavior around a settled view, thereby
preventing an indeterminate state of legal order.
307
Early critics of Second Amendment Sanctuaries claim they violate this
well-settled principle of judicial supremacy in favor of the competing
approach of departmentalism.
308
The theory of departmentalism comes in
many forms.
309
But the “Lincoln-Meese” model—the model most commonly
advanced as an alternative to judicial supremacy and most closely aligned
with the text of gun-sanctuary resolutions—posits that nonjudicial officials
in other branches of government (everyone from the Attorney General of the
United States to a city comptroller) “are not bound by Supreme Court
opinions themselves, and these officials do not violate their oath to the
Constitution by following the Constitution as they see it rather than the
Constitution as the Court sees it.”
310
305
Larry Alexander & Frederick Schauer, On Extrajudicial Constitutional Interpretation,
110 HARV. L. REV. 1359, 1371–72 (1997) [hereinafter Constitutional Interpretation]; see also Larry
Alexander & Frederick Schauer, Defending Judicial Supremacy: A Reply, 17 CONST. COMMENT. 455,
455, 466 (2000).
306
Kevin C. Walsh, Judicial Departmentalism: An Introduction, 58 WM. & MARY L. REV. 1713,
1719 (2017) (citing Alexander & Schauer, Constitutional Interpretation, supra note 305, at 1371–72).
307
See Alexander & Schauer, Constitutional Interpretation, supra note 305, at 1373–74 (asserting
that the value of precedent within the judiciary translates to respect for precedent outside it).
308
Fallon, supra note 35, at 490 (observing that “departmentalism not only strikes many of us as
terrifying, but also contravenes intuitions about the requirements of the rule of law”); see also Toscano,
supra note 5.
309
See Walsh, supra note 306, at 1721 & n.44, 1722 (advancing a theory of “judicial
departmentalism,” separate from the theories of divided departmentalism and overlapping
departmentalism). “Divided departmentalism” allows each branch of government to interpret the
constitutional provisions governing that branch. See Larry Alexander & Lawrence B. Solum, Popular?
Constitutionalism?, 118 HARV. L. REV. 1594, 1610 (2005) (book review) (“For example . . . the judicial
branch has interpretive authority over Article III . . . the legislative branch has interpretive authority over
Article I . . . and the executive branch has interpretive authority over Article II . . . .”). “Overlapping
departmentalism,” also known as Lincoln-Meese departmentalism, grants each branch “final interpretive
authority over all constitutional questions decided within the branch.” Id. at 1613. Second Amendment
Sanctuaries functionally adopt overlapping departmentalism, claiming a right for the local executive
branch to decline enforcement of laws it believes are unconstitutional.
310
Walsh, supra note 306, at 1721; see also Alexander & Schauer, Constitutional Interpretation,
supra note 305, at 1381 n.90 (arguing that “there is nothing more anti-textual about expecting nonjudicial
officials to show the same deference” to Supreme Court judgments as lower court judges do).
115:437 (2020) Second Amendment Sanctuaries
495
Departmentalism of this stripe is having a bit of a scholarly
resurgence.
311
Judicial supremacists view this resurgence as “terrifying”
because it has a destabilizing effect avoided by judicial supremacy.
312
If a
Supreme Court holding interprets the Constitution in a way that the other
branches disagree with, “Congress might continue passing laws of the type
that the Court has held unconstitutional.”
313
The antidote to this destabilizing
effect may be vindication through a lawsuit, but “it is child’s play to get
almost all constitutional questions about which there is interbranch
disagreement into the form of a lawsuit fit for judicial resolution.”
314
Not only
do judicial limiting doctrines like standing and ripeness stand in the way of
individual challenges to potentially unconstitutional laws, but the transaction
costs of litigation simply prove too much for many otherwise worthy
litigants. Moreover, to what end would such litigation be aimed when
Congress could simply respond to its loss in court with identical renewed
legislation?
These normative arguments favoring judicial supremacy, while
compelling, are misplaced at this stage of the Second Amendment Sanctuary
saga. Judicial supremacy can only have a settlement and coordination
function if a clear judicial pronouncement has in fact settled the issue. Heller
settled the issue of whether individuals have a Second Amendment right to
keep and bear arms for personal use unconnected to a militia,
315
and
McDonald settled the issue of whether that right applies against the states.
316
These decisions also presumptively settled other broad Second Amendment
311
See Fallon, supra note 35, at 493 (advancing a mixed form of judicial supremacy and “popular
constitutionalism” that provides greater flexibility for nonjudicial officials); Matthew Steilen,
Collaborative Departmentalism, 61 BUFF. L. REV. 345, 350–52 (2013) (arguing for “moderate
departmentalism”); Walsh, supra note 306, at 1715. More recently, Judge Frank Easterbrook of the
Seventh Circuit Court of Appeals appeared to implicitly endorse departmentalism in Baez-Sanchez v.
Barr: “A judicial decision does not require the Executive Branch to abandon its views about what the law
provides . . . . The Attorney General . . . [is] free to maintain, in some other case, that our decision is
mistaken . . . .” 947 F.3d 1033, 1036 (7th Cir. 2020); see also Howard Wasserman, Judge Easterbrook
Does Judicial Departmentalism, PRAWFS BLAWG (Jan. 25, 2020, 10:31 AM), https://prawfsblawg.
blogs.com/prawfsblawg/2020/01/judge-easterbrook-does-judicial-departmentalism.html [https://
perma.cc/6TW4-3KWU] (discussing Judge Easterbrook’s commentary on judicial departmentalism in
the recent Seventh Circuit decision, Baez-Sanchez v. Barr).
312
Fallon, supra note 35, at 490.
313
Walsh, supra note 306, at 1721 (quoting Alexander & Solum, supra note 309, at 1614).
314
Alexander & Solum, supra note 309, at 1614; see also Yoshino, supra note 302, at 557
(cautioning against the “unrestrained ambition” model where the political branches try to stake out “as
much interpretive power as possible,” when the judicial branch follows the “restrained ambition” model
with doctrines such as standing, ripeness, mootness, and the case-or-controversy requirement).
315
District of Columbia v. Heller, 554 U.S. 570, 631–32 (2008) (recognizing a historical argument
for the Second Amendment right “to keep and bear arms for defense of the home”).
316
McDonald v. City of Chicago, 561 U.S. 742, 791 (2010).
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
496
questions, including the unconstitutionality of absolute bans on handgun
possession
317
and the constitutionality of bans on firearm possession for
felons.
318
But these principles set only the broadest outlines of the scope of
Second Amendment doctrine, leaving significant constitutional issues
unresolved by the judiciary.
This lack of clarity is unsurprising. Few Second Amendment cases
came to the Court prior to 2008, and only two have come to the Court since
that time.
319
Thus, any instability created by interbranch disagreement over
the scope of Second Amendment rights comes not from rogue
departmentalist executives ignoring the supreme commands of courts, but
rather from coordinate branches interpreting the Constitution in a vacuum
created by judicial silence. To be fair, nearly 1,000 lower court decisions
since Heller are slowly developing the contours of Second Amendment
doctrine.
320
But virtually no judicial guidance on extreme risk laws exist to
guide legislators or executives rightfully concerned with their constitutional
duties.
321
The result is what I call “first impression departmentalism,” of which
sanctuary resolutions are an example. Various state legislatures passing or
proposing extreme risk laws presumably believe in their resolutions’
constitutional soundness. However, other constitutional officers, including
local sheriffs, view the constitutional issue differently. Neither constitutional
interpretation can trump the other as a matter of constitutional law, at least
until the issue is clearly resolved by the judiciary. Until then, the coequal
political branches share the power and duty to define the contours of
constitutional doctrine. The question then returns to whether one branch or
level of government can trump the other as a matter of legislative or
enforcement power, returning the issue to one of intrastate federalism.
Local constitutional officers retain another advantage in their quest to
interpret the contours of Second Amendment doctrine: discretion.
Prosecutors and sheriffs wield enormous discretion in carrying out their
317
Heller, 554 U.S. at 628 (invalidating the District of Columbia’s handgun ban as an impermissible
“prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society for [the]
lawful purpose” of self-defense).
318
Id. at 626.
319
McDonald, 561 U.S. 742 (2010); N.Y. State Rifle & Pistol Ass’n v. City of New York, 140 S. Ct.
1525, 1526 (2020) (per curiam) (asking whether ban on transportation of handguns outside New York
City limits violates the Second Amendment and finding the question mooted by the city’s amended
licensing scheme).
320
See generally Ruben & Blocher, supra note 289 (reporting results and content of more than 1,000
post-Heller Second Amendment challenges).
321
See supra sources cited note 74.
115:437 (2020) Second Amendment Sanctuaries
497
duties, and some may use that discretion to decline to arrest or prosecute in
the name of the Constitution.
322
In defending his jurisdiction’s Second
Amendment Sanctuary resolution, Powhatan County, Virginia, Sheriff Brad
Nunnally acknowledged that he does not “decide on the law. But . . . .
discretion is the hallmark of law enforcement[,] . . . [including the] discretion
I have to resist any Second Amendment changes that are apparently
unconstitutional on their face.”
323
Whether such local discretion can be
preempted by the state depends on the contours of subfederal
anticommandeering doctrine, which local officials may wish to weaponize
should they bring an impact-litigation claim.
C. Impact-Litigation Localism
As an alternative to engaging in passive constitutional resistance
through local enforcement discretion, “local authority can be exercised in the
form of constitutional litigation itself.”
324
Local jurisdictions can “represent
their constituents’ constitutional interests directly” through litigation “or
assert the [locality’s] own constitutional authority to protect.”
325
This type of
impact-litigation localism allows localities to seek judicial guidance on
either the substantive constitutional contours of undesirable superior
government regulation or the structural ability of localities to resist.
The first type of litigation seeks to protect the federal constitutional
rights of local citizens against statewide action. Most prominently, the City
Attorney of San Francisco brought several legal challenges on federal equal
protection grounds challenging Proposition 8, a statewide referendum
redefining marriage under the California constitution as between one man
and one woman.
326
One could envision a similar action brought by a locality
322
See Bennett L. Gershman, The New Prosecutors, 53 U. PITT. L. REV. 393, 407–08 (1992) (“The
prosecutor carries out his charging function independent from the judiciary. A prosecutor cannot be
compelled to bring charges, or to terminate them.” (footnotes omitted)).
323
Laura McFarland, Constitutional Officers Address Logistics of Second Amendment Sanctuary
Designation, RICH. TIMES-DISPATCH (Jan. 6, 2020), https://www.richmond.com/news/local/central-
virginia/powhatan/powhatan-todaytoday/constitutional-officers-address-logistics-of-second-
amendment-sanctuary-designation/article_bfedeb2a-30a7-11ea-bfde-3b66878ad625.html
[https://perma.cc/ZBC2-K6Y6] (“If the attorney (general’s) office or the governor’s office thinks they
are going to remove discretion from my job, it is a mistake. This is how the system works.”).
324
Schragger, supra note 19, at 1222.
325
Id.
326
For a background of the impact litigation around Proposition 8, see generally Scott L. Cummings
& Douglas NeJaime, Lawyering for Marriage Equality, 57 UCLA L. REV. 1235 (2010). See also Kathleen
S. Morris, The Case for Local Constitutional Enforcement, 47 HARV. C.R.-C.L. L. REV. 1 (2012) (San
Francisco Deputy City and County Attorney arguing for greater local involvement in constitutional
impact litigation); cf. Perry v. Brown, 265 P.3d 1002 (Cal. 2011) (authorizing official proponents of
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
498
on behalf of its citizens to protect their Second Amendment rights against a
purportedly unconstitutional statewide law.
But these types of representative actions suffer from standing issues in
most states. The San Francisco City Attorney’s efforts in support of same-
sex marriage were easier to maintain because California grants cities
“standing to bring a wide range of actions on behalf of their residents.”
327
Most states and the federal government deny cities “associational standing,”
standing granted to states and associations to assert claims in federal court
on behalf of their constituents, to assert representative claims.
328
This denial
ignores that many metropolitan areas exert far greater protective control,
influence, and innovative capacity than many states, who have unquestioned
standing to sue on behalf of their residents.
329
Denial of standing in this
context also becomes more difficult to justify doctrinally, as courts grant
“area-focused nonprofit corporations” associational standing when cities
arguably could protect the representative interests of their citizens more
effectively.
330
Nevertheless, such proactive litigation faces an uphill battle
due to standing issues.
Alternatively, localities can bring structural litigation. These claims
assert that the “withdrawal of local authority is itself a structural component
Proposition 8 to defend the voter initiative against postelection challenge when state and local government
officials declined to do so).
327
Morris, supra note 326; see also id. at 33 & n.196 (2012).
328
See Kaitin Ainsworth Caruso, Associational Standing for Cities, 47 CONN. L. REV. 59, 62 (2014)
(“Without standing to litigate on residents’ behalf, many cities strain to identify harm to their own
interests in order to bring a suit, only to find their efforts blocked by claims that the offensive conduct is
too remote from the city’s injury and the connection between the two is too tenuous.”); see also Kathleen
C. Engel, Do Cities Have Standing? Redressing the Externalities of Predatory Lending, 38 CONN. L.
REV. 355, 389–90 (2006) (describing the “quagmire” of trying to determine city standing in state and
federal courts).
329
See Caruso, supra note 328, at 63 (explaining that city residents “have many of the ‘indicia of
membership’” justifying standing for states and private associations, and that “cities as natural
information aggregators may be uniquely suited to effectively press” constitutional claims); see also
Sarah L. Swan, Plaintiff Cities, 71 VAND. L. REV. 1227, 1253 (2018) (observing that cities, unlike states,
do not have recognized “parens patriae” standing to bring “mass-tort style, public interest litigation,”
although “[t]o many observers and scholars, it seems like cities should of course have” such powers);
Barron, supra note 222, at 2243 (“Cities . . . plainly have a ‘quasi-sovereign’ interest in protecting the
well-being of their residents.”); Richard C. Schragger, Federalism, Metropolitanism, and the Problem of
States, 105 VA. L. REV. 1537, 1537 (2019) (noting that the largest twenty metropolitan regions “account
for almost fifty-two percent of total U.S. GDP”).
330
See Caruso, supra note 328, at 63, 78, 79, 89 (noting several benefits to local government standing
over nonprofit corporation standing, including great constituent “sway” over an elected city attorney, the
ability of city suits to “make a greater local ‘media splash,’” and local governments’ “unique expertise
and . . . broader perspective than more narrowly focused private associations”).
115:437 (2020) Second Amendment Sanctuaries
499
of the constitutional injury.”
331
The most prominent examples of this
litigation include equal protection challenges to statewide preemption of
local antidiscrimination ordinances
332
and challenges to local minimum-
wage raises in majority-Black cities by a majority-white legislature in a
majority-white state.
333
Localities in those cases did not argue that the state
had no authority to preempt local law, but rather that it did so for
unconstitutional, animus-driven reasons.
334
It appears unlikely that such an
argument would work in defense of Second Amendment Sanctuaries. While
gun-rights activists regularly claim discrimination from “anti-gun”
politicians and decry the Second Amendment’s “second-class treatment,”
335
“firearm owners” is not a constitutionally protected class triggering
heightened scrutiny of gun regulations.
336
Nor do any of the disfavored gun
331
Schragger, supra note 19, at 1223.
332
See, e.g., Romer v. Evans, 517 U.S. 620, 623–24, 635–36 (1996) (invalidating an amendment to
Colorado’s state constitution prohibiting localities from passing antidiscrimination ordinances to protect
gay, lesbian, and bisexual members because it singled out a disfavored group for no rational reason); cf.
Carcaño v. McCrory, 203 F. Supp. 3d 615, 625–27, 644–45, 654 (M.D.N.C. 2016) (denying injunctive
relief on equal protection grounds against North Carolina’s “bathroom bill,” which preempted Charlotte’s
antidiscrimination ordinance protecting transgendered persons, in part because the statute did not
specifically target pro-LGBTQ+ ordinances for repeal, but granting injunctive relief for the individual
plaintiffs on Title IX grounds).
333
See Federal Court Reinstates Suit over Alabama’s Racially Discriminatory Wage Law, EQUAL
JUST. INITIATIVE (Aug. 6, 2018), https://eji.org/news/federal-court-reinstates-alabama-suit-racially-
discriminatory-wage-law/ [https://perma.cc/Y63V-6KRF] (summarizing litigation resulting from an
Alabama state law establishing uniform minimum wage, which was proposed in direct response to the
majority-Black city of Birmingham’s minimum-wage hike and passed along racial lines).
334
See, e.g., Romer, 517 U.S. at 632 (noting that “the amendment seems inexplicable by anything
but animus toward the class it affects” because of its “peculiar property of imposing a broad and
undifferentiated disability on a single named group”).
335
Activists often borrow the memorable phrasing of Justice Clarence Thomas from Silvester v.
Becerra that the Second Amendment is not a “second-class right.” See Ilya Shapiro & Matthew Larosiere,
Opinion, The Supreme Court Is Too Gun-Shy on the Second Amendment, WALL ST. J. (Jan. 2, 2019, 6:54
PM), https://www.wsj.com/articles/the-supreme-court-is-too-gun-shy-on-the-second-amendment-
11546473290 [https://perma.cc/2EGH-LAA4] (claiming the Court’s reluctance to take up firearms cases
relegates the Second Amendment to second-class status); see also Divided Court Demotes Second
Amendment to Second Class Status, Upholds Postal Property Ban, NAT’L RIFLE ASS’N (July 1, 2015),
https://www.nraila.org/articles/20150701/divided-court-demotes-second-amendment-to-second-class-
status-upholds-postal-property-ban#:~:text=Divided%20Court%20Demotes%20Second%
20Amendment%20to%20Second%20Class,the%20Tenth%20Circuit%20reversed%20a%20lower%20c
ourt%20 [https://perma.cc/2WUA-L8F2]; David B. Kopel, Heller’s Precarious Situation, NAT’L REV.
(Sept. 12, 2019, 12:25 PM), https://www.nationalreview.com/magazine/2019/09/30/hellers-precarious-
situation%E2%80%88/ [https://perma.cc/53KN-NWTY]; cf. Timothy Zick, The Second Amendment as a
Fundamental Right, 46 HASTINGS CONST. L.Q. 621, 624 (2019) (“[N]othing about the Supreme Court’s
post-Heller treatment of the Second Amendment suggested its ‘second-class’ status.”).
336
Compare Green v. City of Tucson, 340 F.3d 891, 896 (9th Cir. 2003) (explaining that strict
scrutiny applies to equal protection claims when a government action “employs distinctions based on
certain suspect classifications, such as race or national origin”), with Scocca v. Smith, No. C-11-1318
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regulations stem from the kind of explicit bare animus against gun owners
necessary to invalidate them under rational basis review.
337
Instead, the “structural” challenges most likely to prevail are the ones
outlined regarding the structural power balance between states and localities:
constitutional home rule and subfederal anticommandeering. For example, a
local government could bring suit claiming that a particular statewide
enactment infringes on an area of local autonomy pursuant to the state
constitution’s home-rule provisions. Alternatively, the locality could
challenge the state’s authority to directly command action in furtherance of
an objective the locality both finds unconstitutional and seeks passively to
resist. A locality undoubtedly would have standing to bring these types of
structural claims, as the illegal usurping of local government power is a harm
uniquely felt by the locality. Whether the locality sought proactively to
engage in such impact-litigation localism or passively to resist on
constitutional grounds, this Article sets forth the normative and legal bases
for either course of action.
CONCLUSION
The Second Amendment Sanctuary movement erupted without
warning. It represents a new twist on an old and intractable national debate
about guns, gun rights, and gun safety. But it also offers new opportunities
to explore ongoing and evolving doctrinal debates over the proper balance
of power between state and local government and the proper role of
constitutional interpretation between coordinate branches of government.
These vertical and horizontal separation of powers questions resonate in the
sanctuary context, but finding principled answers will have an impact far
beyond the sanctuary or firearms contexts.
Indeed, while the proposals offered herein articulate a limited path
forward for Second Amendment Sanctuary viability, they apply with equal
resonance to local gun-control efforts. A limited constitutional home rule
supported by the history of local gun regulation and normative wisdom of
EMC, 2012 WL 2375203, at *6 (N.D. Cal. June 22, 2012) (explaining defendant’s argument is essentially
that “gun owners are not a protected class”). See also Washington v. Davis, 426 U.S. 229, 246–48 (1976)
(stating that a discriminatory purpose must be a motivating factor in the state action).
337
See City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 448 (1985) (recognizing that
classifications predicated on discriminatory animus can never be legitimate because the government has
no legitimate interest in exploiting “mere negative attitudes, or fear” toward a disfavored group). Indeed,
some commentators suggest that the political power of gun owners prevents politicians from even mildly
rebuking this would-be protected class. See, e.g., Jeff Stein, The NRA Is a Powerful Political Force—But
Not Because of Its Money, VOX (Oct. 5, 2017, 1:40 PM), https://www.vox.com/policy-and-
politics/2017/10/5/16430684/nra-congress-money-no [https://perma.cc/S8CS-C2JX] (claiming that the
ability of the NRA to “mobilize and excite huge numbers of voters” threatens politicians who speak out
in favor of gun control).
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501
local tailoring counsels in favor of tighter firearms restrictions where the
locality so desires. A subfederal anticommandeering claim against invasive
statewide gun deregulation may be harder to make out when the absence of
regulation neither commands action nor implicates constitutional
protections. But passive resistance in the form of local refusals to issue state
concealed carry licenses may find currency in both the passive immigration
and gun-sanctuary movements. Ultimately, constitutional officers in all
branches, at all levels of government, and on both sides of the gun debate
have important roles to play in helping define the many contours of still-
emerging Second Amendment doctrine.
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