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1
Second Amendment Sanctuaries:
Defiance, Discretion, and Race
Nicholas J. Johnson
*
Abstract
Second Amendment Sanctuaries deploy nonenforcement policies
and strategies in defiance of firearms laws of superior jurisdictions.
The scholarship so far has focused on whether Second Amendment
Sanctuary policies are legally enforceable. This Article advances
the scholarship beyond questions of de jure validity by examining
the potential for practical, de facto efficacy of Second Amendment
Sanctuary policies. This Article concludes that even where Second
Amendment Sanctuaries have weak claims to formal validity, defiant
public officials still have broad opportunities to implement Second
Amendment Sanctuary policies through the exercise of enforcement
discretion. The conclusion that enforcement discretion can effectu-
ate sanctuary policies is tempered by the caution that using enforce-
ment discretion in this way also invites the sort of racially biased
implementation that has been common in the administration of fire-
arms laws.
* Professor of Law, Fordham University School of Law. This article benefited from the com-
ments of Jane Johnson, Nelson Lund, Marc Arkin, Debby Denno, Ellen Johnson, Jack Krill, Jae Lee,
Bennet Capers, Claire Huntington, Jennifer Gordon, Frank Miniter, Dave Kopel, and Don Kilmer.
Mina Juhn and William DeWolff provided excellent research and editing assistance. Thanks to Ford-
ham Law School for summer research grants and Dr. Roger Sachs for contributions in aid of my on-
going work.
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TABLE OF CONTENTS
I. INTRODUCTION ........................................................................................ 4
II. SECOND AMENDMENT SANCTUARIES AND DEFIANCE: THE
PRIVATE TREND GOES PUBLIC ....................................................................... 8
III. SANCTUARY TYPES AND ATTENDANT LEGAL AND PRACTICAL
ISSUES ........................................................................................................... 11
IV. DISCRETIONARY NONENFORCEMENT AS A TOOL FOR
IMPLEMENTING SECOND AMENDMENT SANCTUARY POLICIES .................... 16
V. THE COMPLEXITIES OF DISCRETIONARY NONENFORCEMENT IN
PRACTICE ...................................................................................................... 24
A. Esoteric Technology Bans Invite Discretionary
Nonenforcement: An Example from California ......................... 28
1. Esoteric Technology Bans: Background ............................. 30
2. California’s Bullet-Button Ban Exemplifies the ETB
Type and Adds Texture ....................................................... 31
B. The Supreme Court’s Gun Control Act Jurisprudence
Facilitates Discretionary Nonenforcement ............................... 37
C. The Political and Structural Demands of ETBs Create
Repeating Discernment Issues that Invite Discretionary
Nonenforcement and Encourage Private Defiance ................... 42
1. The First Federal Assault Weapons Ban Creates Timing
and Sourcing Puzzles that Invite Nonenforcement ............. 43
2. Some Common Discernment Issues Presented by
ETBs: Magazine Bans, Statutory Guns that Don’t
Shoot, Innocuous Evil Accoutrements, and an Example
from Pending Federal Executive Action ............................. 46
a. Magazine Bans and Discernment ................................. 47
b. Contraband Guns That Don’t Shoot . . . And Don’t
Even Look Like Guns .................................................... 53
c. Innocuous But Evil Accoutrements: The Carolyn
McCarthy Problem ....................................................... 55
d. The McCarthy-Style Discernment Problem and An
Example From Recently Proposed Federal
Executive Action. .......................................................... 58
D. Discretionary Nonenforcement Policies Signal Illegitimacy
and Encourage Private Defiance .............................................. 61
1. The Practice and Rhetoric of Official Defiance Present
Substantive Challenges to ETB Legitimacy ........................ 62
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2. Procedural Illegitimacy, Official Defiance, and Private
Defiance .............................................................................. 66
E. Official Defiance by Whom: Decision-Making by Three
Types of Non-enforcers ............................................................. 70
1. Nonenforcement by Policymakers: Lessons from
Immigration Sanctuaries ..................................................... 71
2. Discretionary Nonenforcement by Prosecutors: Lessons
from Progressive Declination to Charge Marijuana and
Other Low-Level Infractions ............................................... 76
3. Nonenforcement by Police: Discretionary Policing and
the Challenge of Combination Cases. ................................. 78
a. The Fear Versus the Reality (So Far) of ETB
Enforcement .................................................................. 79
b. The Reality of ETB Enforcement and the Concern
About Bias .................................................................... 81
VI. SANCTUARIES, DISCRETION, AND RACE ............................................... 86
VII. CONCLUSION ......................................................................................... 91
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I. INTRODUCTION
The Second Amendment Sanctuary (SAS) movement is a form of
pushback by gun owners and their public representatives against federal and
state firearms restrictions.
1
Grounded explicitly on the model of the immigra-
tion sanctuaries, Second Amendment Sanctuaries create an array of official
commitments to resist firearms laws of superior jurisdictions.
2
Second
Amendment Sanctuaries appear at both the state and local level.
3
State SAS
policies are designed to defy federal gun laws.
4
Local SAS policies often
purport to defy either federal gun laws, state gun laws, or both.
5
The commentary so far has focused on the formal validity of Second
Amendment Sanctuaries.
6
State and local SAS policies designed to defy fed-
eral gun laws exhibit strong de jure validity.
7
They rest solidly on the consti-
tutional principle that state and local governments cannot be forced to imple-
ment federal law.
8
Enforcement by federal officials is still possible in these
circumstances.
9
But the federal government cannot compel state and local
1
. See Shawn E. Fields, Second Amendment Sanctuaries, 115 NW. L. REV. 437, 440 (2020) (“Sec-
ond Amendment Sanctuaries, or ‘gun sanctuaries,’ claim immunity from superior government enact-
ments. . . .”).
2
. See id. at 440–41 (describing a range of local policy responses to state and federal gun control
laws).
3
. See Shelia Simon, On Target? Assessing Gun Sanctuary Ordinances that Conflict with State
Law, 122 W. VA. L. REV. 817, 832 (2020) (describing the current debate over whether federal, state,
or local governments ought to regulate firearms).
4
. See Press Release, Governor Abbott Signs Second Amendment Legislation into Law, Off. of
the Texas Governor Greg Abbott (June 17, 2021), https://gov.texas.gov/news/post/governor-abbott-
signs-second-amendment-legislation-into-law-2021#:~:text=House%20Bill%201927%20
(Schaefer%2FSchwertner,new%20federal%20gun%20control%20regulations. (“House Bill 2622 . . .
makes Texas a Second Amendment Sanctuary State by protecting Texans from new federal gun con-
trol regulations.”).
5
. See Fields, supra note 1, at 441 (emphasizing how local SAS policies “seek to resist outside
lawmaking passively by simply refusing to enforce [such] laws”).
6
. See generally Lawrence Rosenthal, The Limits of Second Amendment Originalism and the
Constitutional Case for Gun Control, 92 WASH. U. L. REV. 1187 (2015) (describing the validity of
gun control in the wake of Heller).
7
. See Steven P. Halbrook, Virginia’s Second Amendment Sanctuaries: Do They Have Legal Ef-
fect?, 33 REGENT U. L. REV. 277, 291 (2020) (arguing that absent judicial resolution, local constitu-
tional officers have an obligation not to enforce firearm laws of questionable constitutionality).
8
. Fields, supra note 1, at 481 (“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 a federal law.”).
9
. See Simon, supra note 3, at 832 (“At the national level [there is] . . . but one set of rules, and
one federal government to make, interpret, and enforce the laws.”).
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officials to enforce federal rules.
10
This Article will refer to policies that rest
on these federal constitutional principles as Constitutional Sanctuary poli-
cies.
11
Local SAS policies that purport to defy state law present a different situ-
ation.
12
The broad subordination of local governments to state power means
that local policies purporting to defy state law have weak claims to de jure
validity.
13
This article will refer to those local commitments to defy state law
as Discretion Sanctuary policies.
14
Most commentators have said that Discretion Sanctuary policies will not
hold up in court. Some observers have moved quickly from that view to the
conclusion that Discretion Sanctuaries are merely symbolic and inconsequen-
tial.
15
This Article challenges that conclusion.
This Article demonstrates that even though Discretion Sanctuary policies
may lack formal validity, they might still achieve broad practical effect.
16
The
10
. Fields, supra note 1, at 481 (emphasizing how the federal government cannot force state and
local officials to enforce federal laws).
11
. See infra Part III.
12
. See Ric Su, The Rise of Second Amendment Sanctuaries, AM. CONST. SOC’Y: ISSUE BRIEFS,
Mar. 2021, at 1, 18 (explaining how local government defiance of state law presents a unique challenge
because the constitution does not “prohibit state commandeering of local governments”).
13
. Id. (“[L]ocal governments have thus far failed in challenging state anti-sanctuary laws, even
while they have repeatedly succeeded in enjoining federal anti-sanctuary efforts.”).
14
. See infra Part III.
15
. See Su, supra note 12, at 1 (asserting that Second Amendment Sanctuaries lack the power to
nullify state laws and face various other legal and practical obstacles); Fields, supra note 1, at 437
(challenging the view of de jure invalidity with a three-part theoretical construct grounded on Home
Rule provisions, sub-federal anti-commandeering, and substantive constitutional resistance on matters
unsettled by the judiciary); Simon, supra note 3, at 817 (presenting a normative case rooted in agency
for the validity of local sanctuary policies); Halbrook, supra note 7, at 291 (arguing that absent judicial
resolution, local constitutional officers have an obligation not to enforce firearms laws of questionable
constitutionality). Another rendition of the sort of argument presented by Halbrook appears in the
Tazewell County Board of Supervisors’ claim that authority “to order the militia to the localities” per
the Virginia Constitution was a justification to defy state gun control measures. Jim Talbert, Tazewell
County Becomes Second Amendment Sanctuary, Adds Militia Ordinance During Widely Attended
Meeting, BRISTOL HERALD COURIER (Dec. 11, 2019), https://heraldcourier.com/ news/tazewell-
county-becomes-second-amendment-sanctuary-adds-militia-ordinance-during-widely-attended-
meeting/article_6a3d4e37-64f2-5365-9b71-7e4a694602e3.html. Similarly, the Sheriff of Culpepper
County pledged to evade state gun bans by deputizing “thousands of our law-abiding citizens.” Vir-
ginia Sheriff: He’ll Deputize Residents if Gun Laws Pass, ABC NEWS (December 9, 2019, 10:53 AM),
https://abcnews.go.com/US/wireStory/virginia-sheriff-hell-deputize-residents-gun-laws-pass-
67604604. Rick Su presents a broad account of “Intrastate Federalism” that is potentially relevant to
Second Amendment Sanctuary legitimacy. See Rick Su, Intrastate Federalism, 19 U. PA. J. CONST.
L. 191 (2016).
16
. See infra Part IV.
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tool for achieving that practical efficacy is the same sort of discretionary non-
enforcement that state and local officials have deployed in opposition to ma-
rijuana restrictions, immigration laws, and quality-of-life regulations that fuel
mass incarceration.
17
But that is not the end of things. Although, discretionary nonenforcement
has great potential to effectuate SAS policies, the decision-making promises
to be complicated. This Article engages that complexity. It shows how dis-
cretionary nonenforcement is contingent on an array of variables. Some of
those variables defy systematic analysis.
18
For example, different officials
will have different interpretations of, and commitments to, various SAS poli-
cies.
19
Those idiosyncratic differences will affect discretionary nonenforce-
ment decisions in unpredictable ways.
20
However, other inputs are more structural and allow more systematic ob-
servations about the operation of discretionary nonenforcement as a tool for
effectuating SAS policies.
21
This Article focuses on three structural inputs.
Two of them tend to invite discretionary non-enforcement and one tends to
discourage it. The first set of inputs surrounds the sorts of gun legislation that
SAS policies tend to resist.
22
This Article will show how those laws present
recurring invitations to implement SAS policies through discretionary nonen-
forcement.
23
The second set of inputs derives from resistance to laws regulat-
ing immigration, drug use, and petty crime.
24
Tactics and practices already
deployed in those areas present transferable models for effectuating SAS pol-
icies through discretionary nonenforcement.
25
A final set of inputs surrounds
the fact that many gun violations occur in combination with other criminal
violations.
26
Those combination cases present a spectrum of recurring com-
plications that tend to discourage discretionary nonenforcement and cut
against de facto implementation of SAS policies.
27
17
. See infra Section V.E.
18
. See infra Section V.E.
19
. See Fields, supra note 1, at 439–40.
20
. See infra Part V.
21
. See infra Part V.
22
. See infra Section V.A.
23
. See infra Section V.A.
24
. See infra Section V.E.
25
. See Rick Su, Two Sides of Sanctuary, DUKE UNIV. SCH. OF L.: SECOND THOUGHTS (May 12,
2020), https://sites.law.duke.edu/secondthoughts/2020/05/12/the-two-sides-of-sanctuary/.
26
. See infra note 136 and accompanying text.
27
. See infra Section V.E.3.
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This Article proceeds in five parts. Part II positions the Second Amend-
ment Sanctuary movement as a form of “official defiance” that supplements
the “private defiance” phenomenon that I have elaborated in prior work.
28
Part
III describes the differences between Constitutional Sanctuaries and Discre-
tion Sanctuaries. It shows why Constitutional Sanctuaries enjoy solid de jure
validity and why Discretion Sanctuaries do not.
29
Part IV argues that, regardless of their de jure validity, SAS policies can
operate effectively in practice through discretionary nonenforcement. Part IV
makes that case by showing how state and local nonenforcement decisions
already have undercut a core provision of federal gun regulation.
30
That fed-
eral example introduces an important additional insight; it demonstrates how
discretionary nonenforcement—which presents initially as a tool for imple-
menting SAS policies in Discretion Sanctuaries—can also serve as an option
for effectuating SAS policies in Constitutional Sanctuaries.
31
Part IV further
posits that in some cases, officials who have the option of creating legally
enforceable Constitutional Sanctuary policies will nonetheless opt for discre-
tionary nonenforcement because it is less confrontational. Part IV projects
that, because of its comparatively covert nature, discretionary nonenforce-
ment might ultimately supplant formal SAS policies as the principal form of
official resistance to gun laws.
Part V discusses three sets of inputs that will influence the use of discre-
tionary nonenforcement to effectuate SAS policies. The first set of inputs
surrounds the peculiar nature of the gun laws that Second Amendment Sanc-
tuaries tend to resist.
32
Part V shows how these sorts of laws present a spec-
trum of more or less compelling invitations for discretionary nonenforce-
ment.
33
The second set of inputs derives from experience with defiance of
laws governing immigration, drug use, and petty crime.
34
Part V discusses
how tactics and practices already deployed in those areas present transferable
28
. See Nicholas J. Johnson, Imagining Gun Control in America: Understanding the Remainder
Problem, 43 WAKE FOREST L. REV. 837, 848–60 (2008) (arguing that the remainder problem and the
defiance impulse are structural constraints on U.S. firearms policy).
29
. See cases cited infra note 63 and accompanying text.
30
. See Tom Lininger, An Ethical Duty to Charge Batterers Appropriately, 22 DUKE J. GENDER
L. & POL’Y 173, 189–93 (2015) (detailing the effects of undercharging by local prosecutors).
31
. See id.
32
. See infra Section V.A.
33
. See infra Section V.C.
34
. See infra Section V.E.2.
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models for effectuating SAS policies through discretionary nonenforcement.
35
The third set of inputs stems from the fact that many gun violations occur in
combination with other criminal violations.
36
Part V shows how the complex-
ities of these combination cases tend to discourage nonenforcement and un-
dercut SAS policies. The discussion of combination cases in Part V ends by
acknowledging the concern that hinging SAS policies on enforcement discre-
tion also invites bias.
37
Part VI examines the bias concern in detail and discusses the danger that
discretionary nonenforcement will generate the sort of discrimination that has
plagued the exercise of discretion surrounding firearms laws generally.
II. SECOND AMENDMENT SANCTUARIES AND DEFIANCE: THE PRIVATE
TREND GOES PUBLIC
Second Amendment Sanctuaries track the private defiance phenomenon
that occurred in response to the first generation of assault weapons legislation
advanced in the 1990s.
38
The tie between private defiance and the SAS move-
ment was illustrated vividly in 2019 when more than 20,000 protesters, many
of them armed, rallied at the Virginia statehouse in opposition to a threatened
ban on the AR-15 rifle and other semi-automatic firearms.
39
Those protests
reflected sentiments that fueled a groundswell of official opposition to the
proposed gun ban.
40
By January 2020, ninety-one of Virginia’s ninety-five
counties and many municipalities had declared themselves Second Amend-
ment Sanctuaries.
41
35
. See Fields, supra note 1, at 480–89.
36
. See infra Section V.E.
37
. See infra Section V.E.3.
38
. See James B. Jacobs & Kimberly A. Potter, Comprehensive Handgun Licensing & Registra-
tion: An Analysis & Critique of Brady II, Gun Control's Next (and Last?) Step, 89 J. CRIM. L. &
CRIMINOLOGY 81, 106 (1999) (illustrating the ineffectiveness of firearm registration requirements en-
acted in the 1990s).
39
. Lois Beckett, Virginia: Thousands of Armed Protestors Rally Against Gun Control Bills, THE
GUARDIAN (Jan. 20, 2020, 5:57 PM), https://www.theguardian.com/us-news/2020/jan/20/virginia-
gun-rally-activists-richmond; see also Devin Dwyer, In Virginia, '2nd Amendment Sanctuaries' and
New Gun Laws Spur Talk of GOP Wave, ABC NEWS (Mar. 3, 2020, 2:22 AM),
https://abcnews.go.com/Politics/virginia-2nd-amendment-sanctuaries-gun-laws-spur-
talk/story?id=69337337.
40
. See Virginia Democrats Join Republicans to Reject Assault Weapons Ban Bill, THE GUARDIAN
(Feb. 17, 2020, 10:52 AM), https://www.theguardian.com/us-news/2020/feb/17/virginia-assault-
weapons-ban-bill-ralph-northam.
41
. Justine Coleman, Virginia Gun Control Fight Sparks Rush to Join 2nd Amendment Sanctuaries
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The SAS movement began in 2018, in Illinois, as a reaction by rural coun-
ties to gun legislation that urban state legislators were introducing following
the shooting in Parkland, Florida.
42
Prompted by a resolution in Iroquois
County that opposed proposed state legislation, the Effingham County Board
went a step further, declaring that, “Effingham County shall become a ‘sanc-
tuary county’ for all firearms unconstitutionally prohibited by the government
of the State of Illinois, in that, Effingham County will prohibit its employees
from enforcing the unconstitutional actions of the state government.”
43
Soon,
well over half of Illinois’s 102 counties had passed SAS resolutions.
44
Effingham County’s invocation of the Constitution tracked the early sanc-
tuary declarations of churches that stood on higher authority in defiance of
federal immigration law.
45
Effingham County organizers acknowledged that
they copied the immigration sanctuary strategy.
46
The SAS movement has now expanded nationwide.
47
Across the country,
by legislation, resolution, and public commitment, state and local govern-
ments, governors, sheriffs, prosecutors, and other officials have embraced
SAS policies.
48
There are only twelve states that do not have at least one SAS
jurisdiction, and, in some places, sanctuary jurisdictions cover most of the
state.
49
This official defiance of firearms laws in Second Amendment Sanctuaries
Movement, THE HILL (Jan. 26, 2020, 7:37 PM), https://thehill.com/homenews/state-watch/479864-
virginia-gun-control-fight-sparks-rush-to-join-2nd-amendment-sanctuaries. More than 130 cities and
counties have passed some kind of ordinance or resolution opposing new gun laws. See Jeff William-
son, List of Second Amendment Sanctuaries in Virginia and Where It’s Being Discussed, WSLS NEWS
(Aug. 11, 2019, 12:03 AM), https://www.wsls.com/news/ local/2019/11/27/list-of-second-amend-
ment-sanctuaries-in-virginia-and-where-its-being-discussed/.
42
. Simon, supra note 3, at 821.
43
. Id.
44
. See Fields, supra note 1, at 455.
45
. See HILARY CUNNINGHAM, GOD AND CAESAR AT THE RIO GRANDE xi (1995); see also United
States v. Aguilar, 883 F.2d 662, 668–71 (9th Cir. 1989) (describing activities of Minister John Fife
who openly declared to federal authorities that his church would not cease to extend sanctuary to
undocumented people from Central America).
46
. Simon, supra note 3, at 821; see also Daniel Trotta, Defiant U.S. Sheriffs Push Gun Sanctuar-
ies, Imitating Liberals on Immigration, REUTERS (Mar. 4, 2019, 3:10 AM), https://www.reu-
ters.com/article/us-usa-guns-sanctuary/defiant-us-sheriffs-push-gun-sanctuaries-imitating-liberals-
on-immigration-idUSKCN1QL0ZC.
47
. See infra note 67 and accompanying text.
48
. See NICHOLAS J. JOHNSON ET AL., FIREARMS LAW AND THE SECOND AMENDMENT:
REGULATION, RIGHTS AND POLICY 664–66 (1st ed. 2012).
49
. See id. at 666.
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presents a new layer of a longstanding phenomenon of private defiance that I
examined in earlier work.
50
My 2009 article, Imagining Gun Control in Amer-
ica, examined the effect of private defiance on supply-side gun control theo-
ries and policies.
51
That analysis identified a powerful impulse of gun owners
to defy gun bans and registration and examined how that defiance imposes
practical boundaries on supply-side gun control legislation.
52
International
experiments with gun prohibition and registration have confronted massive
private defiance.
53
The International Small Arms Survey reports rates of de-
fiance resulting in an average of “2.6 illegal guns for every legal one” in coun-
tries that have enacted registration or confiscation laws.
54
In many countries,
the ratio is far higher.
55
Fledgling experiments with supply controls in the United States have pro-
duced extraordinary rates of defiance.
56
Compliance with marginal gun and
magazine bans in a handful of U.S. states and municipalities has been consist-
ently in the single digits.
57
This defiance not only thwarts policies that depend
50
. See generally Johnson, supra note 28, at 838 (noting that “people have real world incentives
to defy gun bans”); Williamson, supra note 42 (reporting that more than 130 cities and counties in
Virginia have passed some kind of ordinance or resolution opposing new gun laws).
51
. See Johnson, supra note 28, at 839–40, 851.
52
. See id. at 842, 848–51.
53
. See id. at 853.
54
. See id. This rate is pulled down by rare cases like Japan. Id. In nearly every other country,
surveyed estimates of illegal guns were “a multiple of legal ones.” Id. at 855 (emphasis in original).
55
. See id. at 851–53.
56
. See id.
57
. See Nicholas J. Johnson, Defiance, Concealed Carry, and Race, 83 LAW & CONTEMP. PROBS.
159, 161–63 (2020) (discussing compliance in New Jersey, New York, Connecticut, and California).
In 2013, Connecticut banned “semiautomatic rifles with at least one ‘military’ characteristic—like a
pistol grip.” Id. at 162. About 50,000 guns were registered. Id. “Estimates, drawn from national
sales and manufacturing data, put the number of unregistered guns” at around 350,000. Id. “The law
also required high capacity magazines to be ‘declared.’” Id. About 37,000 magazines were declared.
Id. “Connecticut’s non-partisan office of legislative research concluded that there were about two
million high capacity magazines in the state. . . .” Id. See also Alex Newman, Connecticut Gun
Owners Fail to Register; Officials Push “Amnesty,” NEW AMERICAN (Jan. 27, 2014),
https://www.thenewamerican.com/usnews/constitution/item/17491-connecticut-gun-owners-fail-to-
register-officials-push-amnesty.
The current trend is consistent with the findings in James Jacobs’s study of early state and
municipal assault weapons bans. See Jacobs & Potter, supra note 38, at 106. Jacobs found that
[t]hese laws failed miserably, primarily due to owner resistance. In Boston and Cleveland,
the rate of compliance with the ban on assault rifles is estimated at 1%. In California,
nearly 90% of . . . assault weapons owners did not register their weapons. Out of the
100,000–300,000 assault rifles estimated to be in private hands in New Jersey, 947 were
registered, an additional 888 were rendered inoperable, and four were turned over to the
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on restricting the gun supply, but it also confounds an array of gun control
policies in more subtle ways.
58
Official defiance through Second Amendment Sanctuary policies is an
extension of this private defiance.
59
Reflecting the interests of their constitu-
ents, local governments and officials have committed to defy offending gun
laws enacted by superior jurisdictions.
60
As discussed in Part IV, Second
Amendment Sanctuaries generate broad synergies between official and pri-
vate defiance.
III. SANCTUARY TYPES AND ATTENDANT LEGAL AND PRACTICAL ISSUES
This Article separates Second Amendment Sanctuaries into two types:
Constitutional Sanctuaries and Discretion Sanctuaries. Constitutional Sanc-
tuaries can be state or local and aim to defy federal law.
61
Discretion Sanctu-
aries are local and aim to defy state law.
62
The Constitutional Sanctuary label reflects a grounding in the U.S. Su-
preme Court’s Tenth Amendment, anti-commandeering jurisprudence and the
history of states legitimately declining to enforce objectionable federal laws.
63
State legislation is not essential to create a Constitutional Sanctuary.
64
authorities.
Id.
58
. See generally Johnson, supra note 28, at 884–85 (discussing, for example, how defiance im-
pacts smart gun mandates).
59
. See generally infra note 67 and accompanying text (discussing states that have passed legisla-
tion to become Second Amendment Sanctuaries).
60
. See generally infra note 67 and accompanying text (discussing states that have passed legisla-
tion prohibiting state law enforcement officials from enforcing federal firearms law).
61
. See infra note 67 and accompanying text (outlining different state statutes that defy federal
firearms law).
62
. See infra Part IV. This includes state legislation that effectively adopts provisions of federal
law. Id.
63
. See, e.g., Printz v. United States, 521 U.S. 898, 928, 935 (1997) (finding that the federal gov-
ernment cannot use the states as instruments of federal governance by compelling state or local gov-
ernment officials to enforce federal laws); New York v. United States, 505 U.S. 144, 188 (1992) (hold-
ing that the federal government may not force states to establish regulations in furtherance of federal
policy). State refusal to enforce federal law has a long pedigree. See, e.g., Prigg v. Pennsylvania, 41
U.S. 539, 671, 673 (1842) (affirming that Pennsylvania had no obligation to assist in enforcement of
the Fugitive Slave Act); see also Horace K. Houston, Another Nullification Crisis: Vermont’s 1850
Habeas Corpus Law, 77 NEW ENG. Q. 252, 265 (2004) (describing Vermont’s decision to adopt a
stricter law against aiding in the arrest or detention of fugitive slaves following the Supreme Court’s
decision in Prigg).
64
. See Printz, 521 U.S. at 904 (illustrating an instance in which a local law enforcement official
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Constitutional Sanctuaries can be established by either state or local offi-
cials.
65
Indeed, one of the Supreme Court’s seminal anti-commandeering
cases stems from litigation brought by a county sheriff who resisted enforcing
the interim background check provisions of the federal Gun Control Act of
1968.
66
Statewide Constitutional Sanctuaries already have been established by
legislation and executive proclamation.
67
These sanctuary policies generally
refused to enforce federal law).
65
. See infra note 67 and accompanying text.
66
. See Printz, 521 U.S. at 904. State legislation forbidding state agents from assisting federal
officials in the enforcement of federal immigration laws was upheld in United States v. California,
921 F.3d 865, 876, 894 (9th Cir. 2019), cert. denied, 141 S. Ct. 124 (2020). Forty-seven states have
fully or partially relegalized marijuana. See State Medical Cannabis Laws, NAT’L CONF. OF STATE
LEGISLATURES (July 18, 2022), https://www.ncsl.org/research/health/state-medical-marijuana-
laws.aspx. As of 2021, the exceptions are Idaho, Kansas, and Nebraska. Id. These states forbid state
and local officials from enforcing federal law against cannabis users who comply with state law. See
generally TODD GARVEY, CONG. RSCH. SERV., R42398, MEDICAL MARIJUANA: THE SUPREMACY
CLAUSE, FEDERALISM, AND THE INTERPLAY BETWEEN STATE AND FEDERAL LAWS 6–7 (2012) (dis-
cussing the Tenth Amendment and state immunity from compelled enforcement of federal laws).
67
. See generally John Hill, North to the Future of the Right to Bear Arms: Analyzing the Alaska
Firearms Freedom Act and Applying Firearm Localism to Alaska, 33 ALASKA L. REV. 125, 126 (2016)
(discussing the Alaska Firearm Freedom Act passed by the Alaskan legislature in 2010). The counting
here is complicated by the fact that some states have passed Firearms Freedom Act (FFA) legislation.
See id. FFA legislation declares that any firearms made and retained in-state are beyond Congress’s
authority to regulate interstate commerce. Id. at 127. State FFA laws claim to nullify certain federal
laws as applied to guns manufactured solely within the state. See id. at 126. The Montana Firearms
Freedom Act was struck down in Montana Shooting Sports Ass’n v. Holder on federal preemption
grounds. 727 F.3d 975, 982–83 (9th Cir. 2013), cert. denied, 134 S. Ct. 1335 (2014). However, some
state FFA legislation also included separate nonenforcement commitments of the type validated in
Printz. See Hill, supra, at 134, 136; Printz, 521 U.S. at 935. For example, Montana House Bill 258,
enacted in 2021, prohibits state enforcement of federal bans on firearms, magazines, or ammunition.
MONT. CODE ANN. § 45–8–368 (West 2021) (enacting Montana House Bill 258 into law). Also, some
of the states that passed FFA legislation have now enacted SAS provisions. See generally Hill, supra,
at 126 (examining Alaska’s movement toward nullification of federal firearms law); Simon, supra
note 3, at 819, 822–23 (mentioning states that have passed sanctuary ordinances). The counting of
state sanctuary provisions here excludes state legislation that appears to rely solely on nullification
principles. See generally infra Section V.E.2 (discussing prosecutorial nullification practices). How-
ever, it does include provisions that rest on state nonenforcement prerogatives, even where they appear
before the formal birth of the SAS movement. See generally infra Part IV (analyzing various methods
through which states sidestep or avoid enforcement of federal law).
Alaska provides a good example of the complication involved in counting state Constitutional
Sanctuaries. See generally Hill, supra, at 126 (discussing Alaska’s FFA). The amended Alaska statute
was enacted in 2013, before the SAS term was coined. ALASKA STAT. § 44.99.500 (2013). The
Alaska statute prohibits both the use of state resources for enforcement of any federal gun confiscation
law and also declares that guns manufactured and possessed entirely within the state are not subject to
federal restrictions. Id. The second provision is a form of nullification of the type struck down in
Montana Shooting Sports Ass’n. See id.; Mont. Shooting Sports Ass’n, 727 F.3d at 982–83.
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The Arizona Firearm Freedom Act (House Bill 2111) prohibits the state and all of its political
subdivisions from assisting in the enforcement of federal firearm laws and regulations when they are
inconsistent with state law. ARIZ. REV. STAT. ANN. § 1–272 (2021) (enacting House Bill 2111 into
law). The Arizona law uses the label Firearms Freedom Act, but deploys the tool of nonenforcement
rather than nullification, declaring the following:
[T]his state and all political subdivisions of this state are prohibited from using any personnel or
financial resources to enforce, administer or cooperate with any act, law, treaty, order, rule or
regulation of the United States government that is inconsistent with any law of this state regard-
ing the regulations of firearms.
See id.
The Idaho Firearm Accessories and Components Act provides the following:
All Idaho government entities are prohibited from using any personnel, funds, or other
resources to enforce, administer, or support the enforcement of any executive order, agency
order, treaty, law, rule, or regulation of the United States government enacted or promul-
gated on or after the effective date of this act upon a firearm, firearm component, firearm
accessory, or ammunition if contrary to the provisions of section 11, article I of the consti-
tution of the state of Idaho.
IDAHO CODE § 18–3315B (2021).
Missouri’s Second Amendment Preservation Act (House Bill 85) rejects the federal govern-
ment’s ability to regulate the manufacturing and ownership of firearms within Missouri’s borders. See
MO. ANN. STAT. § 1.410 (West 2021) (enacting House Bill 85 into law).
North Dakota House Bill 1383 prohibits state enforcement or assistance in the enforcement of
federal firearms laws enacted after January 1, 2021, that are more restrictive than state law. N.D.
CENT. CODE § 62.1–01–03.1 (2021) (enacting House Bill 1383 into law); see also Burgum Designates
North Dakota as a ‘Second Amendment Sanctuary State,’ Signs Bills Protecting Gun Rights, N.D.
OFF. OF THE GOVERNOR (Apr. 26, 2021, 12:50 PM), https://www.governor.nd.gov/news/burgum-des-
ignates-north-dakota-second-amendment-sanctuary-state-signs-bills-protecting-gun (detailing North
Dakota’s newly enacted SAS policies).
Oklahoma’s Second Amendment Sanctuary State Act provides that “[a]ny federal, state,
county or municipal act, law, executive order, administrative order, court order, rule, policy or regu-
lation ordering the buy-back, confiscation or surrender of firearms, firearm accessories or ammunition
from law-abiding citizens of this state” will be unlawful as “an infringement on the rights of citizens
to keep and bear arms.” OKLA. STAT. tit. 21, § 1289.24e (2021); see also Governor Makes Oklahoma
a Second Amendment Sanctuary State by Signing Senate Bill 631 into Law, OKLA. SENATE (Apr. 27,
2021, 11:34 AM), https://oksenate.gov/press-releases/governor-makes-oklahoma-second-amend-
ment-sanctuary-state-signing-senate-bill-631-law (reporting on Oklahoma being declared a SAS).
South Carolina House Resolution 3094, also known as the Open Carry with Training Act, pro-
vides that “[t]he state of South Carolina, and its political subdivisions, cannot be compelled” to enforce
federal laws that regulate an individual’s right to carry concealable weapons, whether carried openly
or concealed. S.C. CODE ANN. § 23–31–250 (2021) (enacting House Resolution 3094 into law). The
Attorney General must first evaluate any such law and issue a written opinion on its enforceability.
Id.
The Tennessee Second Amendment Sanctuary Act (Senate Bill 1335) prohibits Tennessee or
any of its subdivisions from enforcing any “law, treaty, executive order, rule, or regulation of the
United States government” that violates the Second Amendment. TENN. CODE ANN. § 38-3-119
(2021) (enacting Senate Bill 1335 into law).
The Texas Second Amendment Sanctuary State Act (House Bill 2622) prohibits state assis-
tance in enforcement of federal gun laws stricter than the laws of Texas. TEX. PENAL CODE ANN. §
1.10 (West 2021) (enacting House Bill 2622 into law).
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declare that states will not assist in the enforcement of federal gun controls
that conflict with the state’s conception of the constitutionally protected right
to arms.
68
As with similar commitments defying federal marijuana and immi-
gration restrictions, these state sanctuary policies do not prevent enforcement
by federal officials.
69
The second type of sanctuary is the Discretion Sanctuary.
70
It involves
local laws or declarations of sanctuary policies in defiance of state law or state
The West Virginia Second Amendment Preservation and Anti-Federal Commandeering Act
(House Bill 2694) prohibits federal commandeering of employees and agencies of the state for the
purpose of enforcing federal firearms laws. W. VA. CODE ANN. § 61-7B-4 (enacting House Bill 2694
into law). It also prohibits police departments and officers from executing red flag laws and federal
search warrants on firearms, accessories, or ammunition of law-abiding persons. W. VA. CODE ANN.
§ 61-7B-5 (LexisNexis 2021).
In May 2021, Nebraska declared sanctuary status by gubernatorial proclamation. See Brent
BonFleur, Ricketts Declares Nebraska a “Second Amendment Sanctuary State,” KLKN (Apr. 14,
2021, 11:07 AM), https://www.klkntv.com/ricketts-declares-nebraska-a-second-amendment-sanctu-
ary-state/.
68
. See supra note 67 and accompanying text.
69
. See generally Benjamin B. Wagner & Jared C. Dolan, Medical Marijuana and Federal Nar-
cotics Enforcement in the Eastern District of California, 43 MCGEORGE L. REV. 109, 125–26 (detail-
ing warnings issued by federal prosecutors that persons growing industrial quantities of marijuana,
even if compliant under local ordinances, were subject to arrest). One of the longstanding controver-
sies afflicting firearms policy is the basic disagreement about the thrust of the constitutional right to
arms, and a view that garnered widespread early support was the claim that the Second Amendment
guaranteed a state right, not an individual right. See Caroline L. Moran, Under the Gun: Will States’
One-Gun-Per-Month Laws Pass Constitutional Muster After Heller and McDonald?, 38 SETON HALL
LEGIS. J. 163, 166–70 (2014) (discussing the history of the collective right and individual right theories
regarding Second Amendment jurisprudence). None of the justices in Heller advanced that view, but
it has been glibly presented in a variety of lower federal court cases. See id. at 167 (“Prior to the
decision handed down by the Supreme Court in Heller, the dominant view of the Second Amendment,
and the one most widely accepted by lower courts, was the ‘collective right’ model, and it was not
until recently that this view came under attack by advocates of the individual right theory.”).
The states’ right view has generally been offered to rebuff individual rights claims and there
has been minimal effort to develop its positive content. See Nicholas J. Johnson, Rights Versus Duties,
History Department Lawyering, and the Incoherence of Justice Stevens’s Heller Dissent, 39 FORDHAM
URB. L.J. 1503 (2012). In the context of this article, the states’ right view of the Second Amendment
would seem to be a firm foundation for states enacting sanctuary policies. See id. A state law pro-
tecting state citizens (militia as body of citizens) from a federal ban of the quintessential militia weapon
(the civilian version of the standard military rifle) seems squarely within the exercise of a state right
to arms to preserve its militia against federal abrogation through gun prohibition or disuse. See id.
Advocates of the states’ rights view should appreciate that it seems to present a strong founda-
tion for Second Amendment Sanctuary claims, which underscores that the efforts to resist the individ-
ual right still must contend with the fact that the Second Amendment establishes a right to arms that
must rest somewhere. See id. The worry about political violence actually seems higher in the states’
right context. See id.
70
. See Fields, supra note 1, at 496.
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adoption of federal law.
71
Discretion Sanctuaries have weak claims to de jure
validity because local governments generally are subordinate to plenary state
authority,
72
and there is no intrastate equivalent of federal anti-commandeer-
ing doctrine.
73
Much of the commentary surrounding Discretion Sanctuaries dismisses
them as merely symbolic and de jure invalid.
74
In Virginia, the Attorney Gen-
eral quickly opined that burgeoning local sanctuary policies there, “have no
legal force.”
75
Georgetown Law Professor, Mary McCord seconded this view,
71
. See id. at 456 (noting that state resistance can take various forms, including symbolic protests).
72
. For a good summary of the issues and doctrine surrounding state powers over local govern-
ments, see Toni M. Massaro & Shefali Milczarek-Desai, Constitutional Cities: Sanctuary Jurisdic-
tions, Local Voice, and Individual Liberty, 50 COLUM. HUM. RTS. L. REV. 1, 83–87 (2018). John
Dillon’s seminal municipal law treatise presents local governments as having no powers other than
those expressly delegated by their state. See JOHN F. DILLON, COMMENTARIES ON THE LAW OF
MUNICIPAL CORPORATIONS 52–80 (5th ed. 1911); see also Hunter v. City of Pittsburgh, 207 U.S. 161,
178 (1907) (noting that localities are “political subdivisions of the state, created as convenient agencies
for exercising such of the governmental powers of the state as may be intrusted [sic] to them”); Mount
Pleasant v. Beckwith, 100 U.S. 514, 524–25 (1879) (finding that cities, towns, and counties “are the
auxiliaries of the State in the important business of municipal rule”); GERALD E. FRUG & DAVID J.
BARRON, CITY BOUND: HOW STATES STIFLE URBAN INNOVATION 16–18 (2013) (discussing the lim-
iting effect of state laws on municipal power and noting how municipal income is largely dependent
on things municipalities do not control like the willingness of taxpayers to locate and do business
within municipal boundaries); Su, Intrastate Federalism, supra note 16, at 215–16 (“[M]odern feder-
alism cases are filled with instances in which localities assert federalism claims on behalf of the state.
Seminal cases like National League of Cities v. Usery, Garcia v. San Antonio Metropolitan Transit
Authority, and Printz v. United States were all instigated by localities. . . .”).
73
. See JOHN F. DILLON, COMMENTARIES ON THE LAW OF MUNICIPAL CORPORATIONS (Chicago,
James Cockroft & Co. 1872) (describing the “Dillon Rule,” which states that local governments pos-
sess only those powers specifically delegated to them by state law, or fairly implied from expressly
granted powers); 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.”). Counties or municipalities and local officials generally are subordinated to plenary state
authority, so local sanctuary policies in opposition to state law (or state-endorsed federal rules) will
present very weak claims to de jure legitimacy. See DILLON, supra, at 112 n.1. Since the Nineteenth
Century, the American theory has been that local governments are mere creatures of the state legisla-
ture and subject to plenary control by the legislature unless the constitution says otherwise. See id. at
113. Localities that are granted Home Rule by statute ostensibly have more autonomy; however, the
“practical effect of Home Rule never lived up to its promise.” See Su, Intrastate Federalism, supra
note 16, at 235 (discussing the variety of ways that states circumvented and narrowed Home Rule,
with the acquiescence of courts).
74
. See generally Fields, supra note 1, at 437.
75
. Gregory S. Schneider, Virginia AG Herring: ‘Second Amendment Sanctuary’ Proclamations
Have No Force, WASH. POST (Dec. 20, 2019, 2:51 PM), https://www.washingtonpost.com/local/vir-
ginia-politics/virginia-ag-herring-second-amendment-sanctuary-proclamations-have-no-
force/2019/12/20/5f7adcb2-234b-11ea-a153-dce4b94e4249_story.html.
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writing that Second Amendment Sanctuaries “will never hold up in court.”
76
The Everytown gun control organization calls Second Amendment Sanctuar-
ies “legally meaningless.”
77
Noting the broad authority that states exercise
over localities, the absence of an anti-commandeering shield against state gov-
ernments, and the primacy of courts in deciding state constitutional questions,
Shawn Fields prefaces his critique of Second Amendment Sanctuaries by cau-
tioning that “a betting person might conclude that Second Amendment Sanc-
tuaries are doomed to fail.”
78
These sorts of assessments prompt the question whether, conceding their
tenuous de jure validity, Discretion Sanctuaries still might have practical, de
facto effect. Part IV examines that question.
IV. DISCRETIONARY NONENFORCEMENT AS A TOOL FOR IMPLEMENTING
SECOND AMENDMENT SANCTUARY POLICIES
As the gun issue boiled over in Virginia following the 2019 election, Pow-
hatan County Sheriff, Brad Nunnally, shined a spotlight on the potential for
discretionary nonenforcement to effectuate SAS policies.
79
“Discretion,” he
explained, “is the hallmark of law enforcement.”
80
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. The public has input in their community into
how they want to see their laws enforced. And we have the ability to
react to that. I don’t plan on changing that, whether it is a Second
76
. Mary B. McCord, Second Amendment ‘Sanctuaries’ Will Never Hold Up in Court, WASH.
POST (Jan. 8, 2020, 11:24 AM), https://www.washingtonpost.com/outlook/2020/01/08/second-
amendment-sanctuaries-will-never-hold-up-court/.
77
. Documents Reveal Many Virginia Lawless Counties Admit Their ‘Second Amendment Sanctu-
aries’ Are Legally Meaningless; They Are Also Rooted in Discredited Legal Theories, EVERYTOWN
FOR GUN SAFETY: EVERYTOWN L. (Jan. 27, 2020), https://everytownlaw.org/documents-reveal-many-
virginia-lawless-counties-admit-their-second-amendment-sanctuaries-are-legally-meaningless-they-
are-also-rooted-in-discredited-legal-theories/.
78
. Fields, supra note 1, at 444.
79
. See Fields, supra note 1, at 496–97 (“Prosecutors and sheriffs wield enormous discretion in
carrying out their duties, and some may use that discretion to decline to arrest or prosecute in the name
of the Constitution.”); see also Bennett L. Gershman, The New Prosecutors, 53 U. PITT. L. REV. 393,
407–08 (“The prosecutor carries out his charging function independent from the judiciary. A prose-
cutor cannot be compelled to bring charges, or to terminate them.”).
80
. See Fields, supra note 1, at 497.
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Amendment issue or whether it is anything else. . . . I will use every
bit of discretion I have to resist any Second Amendment changes that
are apparently unconstitutional on their face and I will certainly resist
as much of it as I possibly can. I have no intention of going out and
depriving people of a right. That is not going to change, whether it
is this or anything else.
81
Broadly speaking, Sheriff Nunnally is right. Discretion can be a powerful
tool for effectuating SAS policies.
82
Indeed, the capacity of discretionary non-
enforcement to thwart contested gun laws is well-demonstrated in practice.
83
State and local nonenforcement already has undercut one of the core provi-
sions of federal gun regulation—the Lautenberg Amendment to the 1968 Gun
Control Act.
84
The Lautenberg Amendment added domestic violence misdemeanants to
the list of persons (e.g., felons and illegal drug users) prohibited from pos-
sessing firearms.
85
It addressed the problem of domestic abusers evading
felon-in-possession prohibitions because of prosecutors’ treating domestic vi-
olence as a misdemeanor even though it would be considered a felony if com-
mitted between strangers.
86
81
. Laura McFarland, Constitutional Officers Address Logistics of Second Amendment Sanctuary
Designation, POWHATAN TODAY, (Jan. 6, 2020), https://richmond.com/news/local/central-vir-
ginia/powhatan/powhatan-today/constitutional-officers-address-logistics-of-second-amendment-
sanctuary-designation/article_bfedeb2a-30a7-11ea-bfde-3b66878ad625.html. Culpeper County Sher-
iff Scott Jenkins said that if the state Assault Weapon ban passed, he would “swear in hundreds or
even thousands of our citizens as deputy sheriffs, if need be, to allow them to possess weapons and
push back on that overreach by our government.” Joel Gunter, Sanctuary Counties: Inside Virginia’s
Gun Rights Resistance, BBC NEWS (Feb. 13, 2020), https://www.bbc.com/news/world-us-canada-
51483541. Jenkins also articulated his recipe for general nonenforcement, explaining, “We have laws
against spitting on a public surface or sidewalk . . . . I cannot recall an officer enforcing that in the
time I've been working. . . . I guess if there are no other more important issues to focus on, maybe
officers will focus on them.” Id.
82
. See Fields, supra note 1, at 497.
83
. See supra note 81 and accompanying text.
84
. See Kellie Desrochers, Municipalities Are Not Kingdoms: Regulating Gun Ownership in Cases
Involving Domestic Violence in Light of the Pauler Decision, 28 B.U. PUB. INT. L.J. 277, 281 (2022)
(“In 1968, Congress enacted the ‘Lautenberg Amendment’ to the 1968 Gun Control Act. The amend-
ment prohibited gun possession for those convicted of a misdemeanor crime of domestic violence, an
outstanding loophole that legislators sought to close whereby dangerous offenders would escape the
penalty of surrendering their weapons by pleading to a lesser charge not covered by the specific word-
ing of the Violence Against Women Act.”).
85
. 18 U.S.C. § 922(g). The list of prohibited persons includes felons, illegal drug users, and
others deemed untrustworthy. See id.
86
. See Desrochers, supra note 84, at 281.
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According to one commentator, “the view that the Federal Lautenberg
Amendment ‘fails spectacularly’ is starting to become widespread.”
87
Prose-
cutions for violation of the provision are a fraction of what proponents ex-
pected.
88
Tom Lininger argues that the Lautenberg Amendment has been
“egregiously ineffective” because the “charging practices of local prosecutors
have minimized the opportunities to apply the federal firearms disability for
convicted abusers.”
89
Lininger explains that “local prosecutors undercharge
domestic violence—by sidestepping charges that would clearly signal the de-
fendant’s disability, or by consenting to charges that would likely result in
expunction—[and thus] thwart the intent of Congress to disarm convicted bat-
terers.”
90
Prosecutors have candidly acknowledged crafting charges to evade
the federal prohibition.
91
Carolyn Ramsey has probed the reasons why police, prosecutors, and
judges have exercised discretion to thwart the Lautenberg Amendment.
92
Ramsey posits that “[l]aw enforcers may . . . be motivated by resentment, or
at least skepticism, toward such laws. . . . [And,] officers dislike the Lauten-
berg Amendment for a variety of reasons,” including strong beliefs about the
Second Amendment and sympathy for defendants who claim to need guns for
work or hunting.
93
87
. Carolyn B. Ramsey, Firearms in the Family, 78 OHIO ST. L.J. 1257, 1329 (2017) (emphasis
added); see also Lininger, supra note 30, at 177–82; Natalie Nanasi, Disarming Domestic Abusers, 14
HARV. L. & POL’Y REV. 559, 575 (2020).
88
. Lininger, supra note 30, at 174 (“[T]he federal government has rarely enforced [the Lautenberg
Amendment], prosecuting approximately thirty to seventy each year among hundreds of thousands of
potentially eligible defendants.”).
89
. Id. at 173.
90
. Id.
91
. Robert A. Mikos, Enforcing State Law in Congress's Shadow, 90 CORNELL L. REV. 1411, 1461
(2005) (discussing the openly preferential treatment given by Florida state prosecutors to corrections
officers accused of domestic violence because of the firearms ban). State and local gatekeepers have
thwarted operation of the prohibition for a variety of reasons, including the perception that the prohi-
bition constitutes federal overreach into state affairs and trenches on individual rights. See also Ram-
sey, supra note 87, at 1331 (“Prosecutors often charge defendants under generic assault or battery
laws, instead of specialized statutes—that is, if they pursue the case at all.”).
92
. See Ramsey, supra note 87, at 1330–31 (discussing why law enforcers and judges might im-
pede federal and state bans).
93
. See id. at 1330–31. Survey data show both victims and abusers on a police force disagreeing
with the provision due to fear that spouses would use the law to take advantage of their partners. See
SUZANNE WALTON & MARK ZELIG, “Whatever He Does, Don’t Fight Back or You’ll Lose Your Gun”:
Strategies Police Officer Victims Use to Cope with Spousal Abuse, in DOMESTIC VIOLENCE BY POLICE
OFFICERS 365, 366–67 (Donald C. Sheehan ed., 2000) (illustrating a firsthand account of an officer
reluctant to defend herself against domestic abuse for fear she would lose her firearm.); see also Laura
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The problem is particularly acute where defendants are police.
94
Not only
do police defendants enjoy an insider’s privilege, where prosecutors and
judges exercise discretion in their favor, police are also far more likely to
commit domestic violence.
95
“At least forty percent of police officer families
experience domestic violence, in contrast to ten percent of families in the gen-
eral population.”
96
The thwarting of the Lautenberg Amendment through discretionary non-
enforcement supports an important subsidiary point.
97
Recall that the Su-
preme Court has affirmed the validity of state and local nonenforcement of
federal law.
98
So yes, Constitutional Sanctuaries probably will hold up in
court.
99
But, officials who have the option of creating Constitutional Sanctu-
aries might wisely choose a less confrontational form of resistance to federal
gun laws.
100
Picking a fight with the federal government entails risks.
101
State
Lee Gildengorin, Smoke and Mirrors: How Current Firearm Relinquishment Laws Fail to Protect
Domestic Violence Victims, 67 HASTINGS L.J. 807, 828–29 (2016) (discussing the role of judges in
evading federal firearm laws).
94
. See Ramsey, supra note 87, at 1332–35 (criticizing the Lautenberg Amendment’s prohibition
against on-duty possession of firearms by police officers convicted of domestic violence misdemean-
ors because of the strong correlation between unemployment and domestic abuse, and because prose-
cutors and courts balk at ending the careers of law enforcement officers).
95
. See id. at 1335 (describing the “professional courtesies” extended to police officers convicted
of domestic violence); Conor Friedersdorf, Police Have a Much Bigger Domestic-Abuse Problem
Than the NFL Does, ATLANTIC (Sept. 19, 2014), https://www.theatlantic.com/national/ar-
chive/2014/09/police-officers-who-hit-their-wives-or-girlfriends/380329/ (“Several studies have
found that the romantic partners of police officers suffer domestic abuse at rates significantly higher
than the general population.”); Arlene Levinson, When Law, Love Collide in Violence: Evidence Sug-
gests that Spousal Abuse Among Police Officers is Not Uncommon and that Departments Often are
Reluctant to Punish Offenders, L.A. TIMES (July 6, 1997, 12:00 AM), https://www.latimes.com/ar-
chives/la-xpm-1997-jul-06-mn-10150-story.html (“Although numbers are hard to come by, two aca-
demic studies suggest that police officers are more likely to engage in domestic violence than members
of the general public.”).
96
. Friedersdorf, supra note 95.
97
. See Ramsey, supra note 87, at 1331 (observing that the firearms ban has elevated prosecutorial
cost, leading prosecutors to negotiate deals that evade the ban).
98
. See, e.g., Printz v. United States, 521 U.S. 898 (1997) (finding that the federal government
cannot use the states as instruments of federal governance by compelling state or local government
officials to enforce federal laws).
99
. See id.
100
. See, e.g., Massaro & Milczarek-Desai, supra note 72, at 88–89 (discussing state imperatives
that impose harsh penalties for cities that declare sanctuary status against a federal immigration order).
101
. Id. at 89–92 (describing Texas and Arizona statutes that penalize local jurisdictions that pro-
hibit enforcement of federal immigration laws by denying state grants for offending jurisdictions and
making local officials subject to misdemeanor convictions if they fail to cooperate with federal au-
thorities).
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and local governments might instead choose to minimize those risks by opting
for informal, undeclared practices of nonenforcement to achieve SAS goals.
102
States have used this strategy in a variety of other contexts.
103
Heather Gerken describes this sort of “low level intransigence,” as “cov-
ert dissent.”
104
Gerken’s critique prompts the observation that strident public
declarations of SAS policies might sometimes be a strategic mistake; open
conflict with superior jurisdictions through bold declarations of sanctuary sta-
tus might be risker than simply adopting a de facto policy of nonenforce-
ment.
105
Conflicts surrounding immigration sanctuaries illuminate the types of
pressures that might raise a preference for the use of discretionary nonenforce-
ment in lieu of formal, Constitutional Sanctuary policies.
106
In Arizona, for
102
. Id. at 90 (describing Tucson’s decision to term itself and “immigrant-friendly city” rather than
a “sanctuary city” to avoid “[inflaming] passions”).
103
. See Jessica Bulman-Pozen & Heather K. Gerken, Uncooperative Federalism, 118 YALE L.J.
1256, 1258–59 (2009) (describing various contexts in which states engage in “uncooperative federal-
ism,” refusing to act as cooperative servants in enforcing federal mandates).
104
. See id. at 1271–72. An impulse to avoid direct conflict with superior jurisdictions is consistent
with the theme of private defiance that I elaborated on in Imagining Gun Control. See Johnson, supra
note 28. An undeclared practice of defiance avoids frontal conflicts with a more powerful adversary
and yet still might achieve the results of a formal SAS policy. Id.
105
. See Bulman-Pozen & Gerken, supra note 103, at 1271–72 (describing different forms of un-
cooperative federalism appropriate to different circumstances reflecting strategic choice on the part of
states). There are also indications of federal gun prohibitions on users of controlled substances (in-
cluding marijuana) being thwarted. See, e.g., Benjamin Levin, Guns and Drugs, 84 FORDHAM L. REV.
2173, 2176 (2016) (arguing for the separation of drug offenses and gun possession in the field of
criminal law concurrent with growing criticism of the drug war). Users of federally defined controlled
substances are prohibited from purchasing or possessing firearms. 18 U.S.C. § 922 (g)(1). This pro-
hibition applies to “unlawful [drug] users” and does not require a criminal conviction. Id. Various
individuals fall within the standards that ATF and courts have used to define “drug user.” See FBI
CRIM. JUST. INFO. SERVS. DIV., INFORMATION AND EXAMPLES OF THE APPLICATION OF TITLE 18,
UNITED STATES CODE, SECTION 922, SUBSECTION (G)(3): PERSONS WHO ARE UNLAWFUL USERS OF
OR ADDICTED TO ANY CONTROLLED SUBSTANCE (2019) (outlining scenarios under which a person
could be considered an unlawful drug user). One commentator concludes that there is “widespread
underreporting” of these prohibited drug users to the National Instant Check System database. See
Dru Stevenson, The Complex Interplay Between the Controlled Substances Act and the Gun Control
Act, 18 OHIO ST. J. CRIM. L. 211, 211, 214 (2020) (“[T]he NICS system has only a tiny fraction of the
drug users in their system, as most of the drug courts, drug diversion programs, drug counselors, detox
centers, methadone clinics, college and high school administrators (who suspend students for having
drugs), and drug task forces do not bother reporting the individuals they are processing.”). See also
BECKEI GOGGINS & SHAUNA STRICKLAND, BUREAU OF JUST. STAT., 250782, STATE PROGRESS IN
RECORD REPORTING FOR FIREARM-RELATED BACKGROUND CHECKS: UNLAWFUL DRUG USERS
(2017) (noting that noncriminal records of unlawful drug use are often absent and thus unavailable for
firearms-related background checks).
106
. See Massaro & Milczarek-Desai, supra note 72, at 84–88 (presenting a summary of the issues
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example, political pressures prompted the city of Tucson to recast policies that
defied federal immigration law.
107
Tucson Mayor Regina Romero explained
that the city will remain, “immigrant-friendly,” but will not adopt the moniker
“sanctuary city” because it “is being used to inflame passions on both
sides.”
108
Tucson’s tactical recasting of municipal policy sought to evade federal
punishment of “sanctuary jurisdictions” by President Trump’s 2017 Executive
Order.
109
Toni Massaro and Shefali Desai report that, in the days after issu-
ance of the Executive Order, “worries that the DHS Secretary conceivably
could construe ‘sanctuary jurisdiction’ so capaciously that it would sweep up
Tucson in its mandate caused officials to avoid using the term ‘sanctuary.’”
110
Threat of reprisals by the Trump Administration also pushed the city of Den-
ver to craft its de facto sanctuary policy by “studiously avoiding” the sanctu-
ary label.
111
and doctrine surrounding state powers over local governments). John Dillon’s seminal municipal law
treatise presents local governments as having no powers other than those expressly delegated by their
state. See DILLON, supra note 72, at 52–80; see also, Hunter v. City of Pittsburgh, 207 U.S. 161, 178
(1907) (finding that localities are “political subdivisions of the State, created as convenient agencies
for exercising such of the governmental powers of the State as may be intrusted [sic] to them.”); Mount
Pleasant v. Beckwith, 100 U.S. 514, 524–25 (1879) (finding that cities, towns, and counties “are the
auxiliaries of the State in the important business of municipal rule . . . .”); FRUG & BARRON, supra
note 72, at 16–18 (discussing the limiting effect of state laws on municipal power and noting how
municipal income is largely dependent on things municipalities do not control like the willingness of
taxpayers to locate and do business within municipal boundaries).
107
. See Massaro & Milczarek-Desai, supra note 72, at 91 (discussing the threat of losing state
funds and other sanctions).
108
. Id. at 90. In a predictable turn of the same political dynamic, in June 2021, the city of Tucson
passed a resolution to ignore the Arizona Second Amendment Sanctuary law that the governor had
signed in April. See Tucson to Ignore Arizona’s ‘Second Amendment Sanctuary’ Law, AP NEWS (July
6, 2021), https://apnews.com/article/joe-biden-az-state-wire-arizona-tucson-gun-politics-f1521fa4
e6c05a10f140abcdd8cf394a.
109
. See Massaro & Milczarek-Desai, supra note 72, at 91; see also Exec. Order No. 13,768, 82
Fed. Reg. 8799 (Jan. 25, 2017).
110
. See Massaro & Milczarek-Desai, supra note 72, at 91.
111
. Public Safety Enforcement Priorities Act, Bill No. 17–0940, DENVER CITY COUNCIL (2017),
https://denver.legistar.com/LegislationDetail.aspx?ID=3128614&GUID=3A568876-8302-4856-
AFA4-F505A637FFD9 (prohibiting city contracts related to enforcement of federal immigration
laws). This did not dissuade the Trump Administration, which included Denver when it launched
“Operation Safe City,” targeting “sanctuary cities.” See Chris Walker, ICE Raids Target “Sanctuary
Jurisdictions,” Including Denver, WESTWORD (Sept. 29, 2017, 10:07 AM), http://www.west-
word.com/news/ices-operation-safe-city-raids-in-denver-and-other-sanctuary-jurisdictions-9540309
(“Denver Mayor Michael Hancock was studiously avoiding [the term “sanctuary”]—choosing, in-
stead, to call Denver a “welcoming city”). Texas provides another example. See S.B. 4 § 12.21, 85th
Leg., Reg. Sess. (Tex. 2017). A 2017 law authorized extraordinary sanctions against local
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The possibility of similar sorts of pressures deployed against Second
Amendment Sanctuaries is an incentive for defiant jurisdictions to avoid for-
mal SAS declarations and implement sanctuary polices through discretionary
nonenforcement.
112
Compared to the direct public challenge presented by for-
mal SAS legislation, discretionary nonenforcement can be relatively undetect-
able.
113
However, formal SAS declarations will not always be strategically infe-
rior.
114
Formal SAS policies do exhibit signaling advantages early on, where
offending rules are just being proposed and debated.
115
In that context, SAS
declarations communicate the threat of resistance to come, and may actually
thwart the passage of contested legislation.
116
This was an apparent effect in
Virginia.
117
While several gun control measures were passed by the new
governments and officials that adopted immigration sanctuary policies. Id. Among other things, the
legislation prohibits local governments from adopting laws or policies that prohibit enforcement of
federal or state immigration laws and denies state grants to defiant jurisdictions. Id. The law makes
noncooperation by local officials and endorsement of noncooperation measures a misdemeanor. Id.
Defiant local officials can be fined and removed from office. Id. See generally Zachary Price, Reli-
ance on Non-Enforcement, 58 WM. & MARY L. REV. 937 (2017) (discussing whether constitutional
due process principles protect reliance on federal officials’ nonenforcement assurances).
112
. See, e.g., Massaro & Milczarek-Desai, supra note 72, at 89–91 (emphasizing the pressures
deployed by the Texas and Arizona state legislatures against localities that enact policies in conflict
with state law).
113
. See, e.g., Bulman-Pozen & Gerken, supra note 103, at 1271–72 (describing more “restrained”
interstitial state contestation of federal policy as an alternative to explicit noncompliance or obstruc-
tion). Consider for contrast the difficulty of proving any policy affirmative conduct by frontline en-
forcement officers—conduct that commonly involves physical evidence and injured claimants. See
Andrea Castillo & Paloma Esquivel, California Police Got Hundreds of Calls About Abuse in Private
ICE Detention Centers. Cases Were Rarely Prosecuted, L.A. TIMES (Oct. 18, 2020, 8:00 AM),
https://www.latimes.com/california/story/2020-10-18/california-police-immigration-detention-abuse
(depicting a “system in which violence can be perpetuated against [ICE] detainees with impunity, both
by other detainees and facility staff.”). Now consider what it means to prove instances of improper
nonenforcement of an ETB. See discussion infra Section V.D.
114
. Cf. Bulman-Pozen & Gerken, supra note 103, at 1278–81 (explaining how states declared their
refusal to participate in enforcing the Patriot Act, which helped to shape a national conversation, de-
spite the Act’s reauthorization).
115
. See, e.g., Gunter, supra note 81 (reporting how nearly two hundred Virginia municipalities
passed Second Amendment Sanctuary resolutions after the state legislature proposed expanded gun
control legislation).
116
. See id.; see also Timothy Williams, Virginia Legislature Turns Down Ban on Military-Style
Weapons, N.Y. TIMES (Feb. 19, 2020), https://www.nytimes.com/2020/02/17/us/Virginia-assault-
weapons-legislature.html (noting how the defeat in the state senate of a ban on military-style rifles at
least partially resulted from pressures presented by gun rights protests).
117
. See Williams, supra note 116 (reporting on the defeat in the Virginia State Senate of a bill that
would have banned military-style rifles in Virginia).
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Democratic majority, the most controversial provision, a ban on semi-auto-
matics currently owned by Virginians, stalled.
118
The Virginia experience also illustrates how conflicts might progress after
contested legislation actually passes and SAS officials must decide whether
to actually implement their SAS policies.
119
Careful local strategists might
well decide to abandon formal SAS policies in favor of less confrontational,
de facto nonenforcement, cloaked as the good faith exercise of discretion.
120
It is an open question whether discretionary nonenforcement will supplant
formal SAS polices as the primary form of official resistance to contested gun
laws.
121
SAS policies have garnered the attention so far.
122
But it may turn
out that formal SAS declarations are a glittery distraction, and that the primary
work of official defiance will occur, as in the case of the Lautenberg
118
. See id. In what appeared to be a political setback for the legislation, in February 2020, the
Virginia Senate Judiciary Committee deferred action on the House version of the AWB. See HB 961
Assault Firearms, Certain Firearm Magazines, etc.; Prohibiting Sale, Transport, etc.; Penalties., VA.
LEGIS. INFO. SYS., https://lis.virginia.gov/cgi-bin/legp604.exe?201+sum+HB961 (last visited Dec. 20,
2021); see generally Gunter, supra note 81 (discussing the controversy surrounding the proposed Vir-
ginia gun control laws). The Brady gun control organization expressed disappointment over the vote.
See Press Release, Brady Ctr. to Prevent Gun Violence, “We are Undeterred”: Brady Expresses Dis-
appointment in Virginia Senate Judiciary Committee Decision to Delay Action on Assault Weapons
Ban Until 2021, (Feb. 17, 2020), https://www.bradyunited.org/press-releases/we-are-undeterred-
brady-expresses-disappointment-in-virginia-senate-judiciary-committee-decision-to-delay-action-on-
assault-weapons-ban-until-2021. Similar signaling advantages have occurred in the immigration con-
text. See Liz Robbins, ‘Sanctuary City’ Mayors Vow to Defy Trump’s Immigration Order, N.Y. TIMES
(Jan. 25, 2017), https://www.nytimes.com/2017/01/25/nyregion/outraged-mayors-vow-to-defy-
trumps-immigration-order.html (describing American mayors’ adverse reactions to President Trump’s
executive order threatening municipalities that did not cooperate with federal immigration officials);
Vivian Yee & Rebecca R. Ruiz, Sessions Narrows Trump’s Order Against Sanctuary Cities, N.Y.
TIMES (May 22. 2017), https://www.nytimes.com/2017/05/22/us/politics/sanctuary-cities-jeff-ses-
sions.html (reporting on the narrowed scope of President Trump’s executive order after a federal judge
temporarily blocked the Administration from cutting off funding to sanctuary cities).
119
. See Gunter, supra note 81 (examining responses by local officials, including Culpepper County
Sheriff Scott Jenkins, considering nonenforcement policies).
120
. See id. (“We have laws against spitting on a public surface or sidewalk . . . . I cannot recall an
officer enforcing that in the time I’ve been working . . . . I guess if there are no other more important
issues to focus on, maybe officers will focus on [proposed new technology bans].”). Some of the same
Virginia officials who threatened overt defiance also articulated residual strategies of discretionary
nonenforcement. See id.
121
. See infra Section V.D.1 (highlighting the challenges in measuring the comparative utility and
tactical appeal of discretionary nonenforcement compared to formal SAS policies).
122
. See What Are So-Called “Second Amendment Sanctuaries?,” BRADY CAMPAIGN TO PREVENT
GUN VIOLENCE (2019), https://www.bradyunited.org/act/second-amendment-sanctuaries (noting the
increased prevalence of SAS policies and debates about their efficacy).
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Amendment, through discretionary nonenforcement.
123
V. THE COMPLEXITIES OF DISCRETIONARY NONENFORCEMENT IN
PRACTICE
The thwarting of the Lautenberg Amendment, discussed in Part III,
demonstrates the utility of discretionary nonenforcement as a tool for effectu-
ating SAS policies. But the details of how that tool might operate more
broadly are complicated.
124
A primary complication is that discretionary non-
enforcement decisions will be made by various officials (police, prosecutors,
policymakers) who will have different interpretations of and different com-
mitments to various SAS policies.
125
Those idiosyncratic differences will af-
fect enforcement decisions in unpredictable ways.
126
However, some inputs for thinking about discretionary nonenforcement
as a tool for effectuating SAS policies are more structural and do provide a
basis for making predictions and thinking systematically about policy.
127
This
Part organizes those structural inputs into three sets. The first set of structural
inputs surrounds the nature of the gun ban legislation that Second Amendment
Sanctuaries tend to oppose.
128
Powhatan County Sheriff Brad Nunnally’s fel-
low constitutional officer, prosecutor Dickie Cox,
129
summarized those laws
123
. See supra Part III (discussing the official defiance by police, prosecutors, and judges exercising
their discretion to thwart the Lautenberg Amendment). The ultimate practical impact of SAS policies
is similarly contingent. See RAND CORPORATION, THE SCIENCE OF GUN POLICY: A CRITICAL
SYNTHESIS OF RESEARCH EVIDENCE ON THE EFFECTS OF GUN POLICIES IN THE UNITED STATES (2d
ed. 2020) (addressing the question of whether and how state and local efforts to thwart gun control
will impact crime); JOHNSON ET AL., supra note 48, at 33–85 (discussing an array of studies examining
the efficacy of various gun control policies); NAT’L RSCH. COUNCIL, FIREARMS AND VIOLENCE: A
CRITICAL REVIEW (Charles F. Wellford et al. eds., The Nat’l Acads. Press 2005) (assessing the effi-
cacy of existing gun control measures).
124
. See infra Section V.D.1 (questioning the dynamic between discretionary nonenforcement and
formal, officially defiant SAS policies).
125
. See Gunter, supra note 81 (examining various responses to proposed SAS and gun control
policies in Virginia).
126
. See infra Section V.E (underscoring the varying interpretations and commitments of officials
with respect to SAS policies).
127
. See McFarland, supra note 81, at 1A, 9A (demonstrating the predictability of nonenforcement
responses to particular gun control policies).
128
. See infra Section V.A (outlining various types of nonenforcement responses around the United
States).
129
. See Commonwealth’s Attorney, POWHATAN CNTY., http://www.powhatanva.gov/218/Com-
monwealths-Attorney (last visited Aug. 21, 2022). Cox holds the office of Commonwealth’s Attor-
ney. See id. These local prosecutors are elected to four-year terms by Virginia’s counties and cities.
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and how they have fueled the SAS movement:
[T]o restrict what law-abiding citizens already have, to say you can’t
have a magazine that holds a certain number of cartridges, to say you
can no longer possess this type of firearm, to allow the government
to come in and take your property, is scary. And I don’t think any-
body wants that. . . . Are you going to come to my house? That is
what people are scared of—the government coming to their house
and taking that they have bought or accumulated as a law-abiding
citizen in this country. We don’t want to go down that road.
130
This Part will show how the sorts of gun ban legislation that Cox de-
scribes present recurring characteristics that provide relatively predictable in-
vitations and opportunities for defiance through discretionary nonenforce-
ment.
131
A second set of structural inputs derives from state and local resistance to
laws governing immigration, drug use, and “quality of life” crimes.
132
Re-
sistance tactics already deployed in those areas present predictable, transfera-
ble models for implementing SAS policies through discretionary nonenforce-
ment.
133
A third set of structural inputs surrounds the fact that that SAS policies
are not really commitments of zero enforcement of gun laws.
134
Both explic-
itly and implicitly, SAS policies anticipate some degree of enforcement
against people who commit other crimes in combination with contested gun
See VA. CODE ANN. § 15.2–1626 (1997). Cox won election in 2019 with ninety-nine percent of the
vote. See 2019 November General: Official Results, VA. DEP’T OF ELECTIONS (Nov. 18, 2019, 5:36
PM), https://results.elections.virginia.gov/vaelections/2019%20November%20General/Site/Local-
ity/POWHATAN%20COUNTY/Commonwealth's%20Attorney%20(POWHATAN%20COUNTY).
html.
130
. McFarland, supra note 81, at 9A. Cox and Nunnally are the frontline officers charged with
law enforcement in Powhatan City and County. See id. The SAS policy they were discussing resulted
from a decision by the Powhatan Board of Supervisors. See id.
131
. See infra Section V.A (outlining various legislative gun restrictions and their respective re-
sponses from local officials).
132
. See infra Section V.E (detailing official defiance in the nonenforcement decisions made by
policymakers, prosecutors, and police with respect to drug and quality of life crimes).
133
. See infra note 319 and accompanying text (analyzing SAS policy enforcement in the immigra-
tion context).
134
. See infra Section V.E.3.b (characterizing SAS policies as commitments to protect law-abiding
gun owners).
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laws.
135
In this respect, SAS policies track immigration and drug nonenforce-
ment policies that also enforce contested laws that are broken in combination
with other serious crimes.
136
Given that a great deal of gun law enforcement
occurs in combination with other crimes,
137
it is fair to expect that SAS non-
enforcement often will be contingent along a spectrum of combination
cases.
138
It is also fair to expect that many of the recurring complexities of
combination cases will cut in favor of enforcement and against discretionary
implementation of SAS policies.
139
This Part will consider how the three sets
of structural inputs affect discretionary nonenforcement in various contexts.
140
135
. See infra Section V.E.3 (defining combination cases as instances where gun violations occur
in concert with other infractions). Missouri and Oklahoma, for example, explicitly limit the protec-
tions of their SAS statutes to law-abiding citizens. See Second Amendment Preservation Act, H.R.
85, 101st Gen. Assemb., Reg. Sess. (Mo. 2021); Second Amendment Sanctuary State Act, OKLA.
STAT. tit. 21, § 1289.24e (2021). This presumably means persons who have not committed any crime
besides violation of contested gun laws. See MO. REV. STAT. § 1.480 (2021); Second Amendment
Sanctuary Act, tit. 21, § 1289.24e(E)(3). Commonwealth Attorney Dickie Cox demonstrated the im-
plicit limits on the Powhatan County SAS policy through his description of the variety of gun laws
that he and his constituents support—such as prohibitions on possession by felons and new tighter
restrictions on individuals convicted of domestic violence misdemeanors. See McFarland, supra note
81, at 9A.
136
. Shaila Dewan, A Growing Chorus of Big City Prosecutors Say No to Marijuana Convictions,
N.Y. TIMES (Jan. 29, 2019), https://www.nytimes.com/2019/01/29/us/baltimore-marijuana-posses-
sion.html. Baltimore police overwhelmingly oppose chief prosecutor Marilyn Mosby’s marijuana
nonenforcement policies. See id. Mosby’s policy creates an explicit exception for drug possession
cases that also involve gun possession. See id. Given broad police opposition to the policy as a general
matter, one can expect police/prosecutor conflict about enforcement in other troublesome combination
cases involving other weapons or violence. See id. SAS nonenforcement decisions will likely shift
on a similar fulcrum (with the notable difference of companion drug violations possibly tipping the
decision-making toward enforcement of otherwise insulated gun violations). See id.
137
. See infra Section V.E (illustrating the challenges inherent in combination cases).
138
. See infra Section V.E.3 (highlighting the contingent nature of decision-making in combination
cases). These combination cases evoke Heather Gerken’s observation that those who “dissent by de-
ciding . . . no longer enjoy the luxury of the critic: inaction. They must figure out how to put their
ideas into practice . . . and . . . live with the consequences.” Heather K. Gerken, Dissenting by Decid-
ing, 57 Stan. L. Rev. 1745, 1777–78 (2005).
139
. See infra Section V.E.3.b (discussing the range of inferences related to enforcement decisions
in light of SAS policies).
140
. See discussion infra Sections V.A–V.E (demonstrating the complications of discretionary non-
enforcement decisions by various officials). The analysis presented in this Part may also be relevant
at various levels of decision-making. See discussion infra Sections V.C–V.D (analyzing discretionary
nonenforcement in both private and official defiance). For example, it might inform the range of
plausible decisions where officials are split in their commitment to SAS policy or where individual
officials are personally torn in their commitment to the policy in a particular case. See discussion infra
Section V.D (illustrating the decision-making behind discretionary nonenforcement by policymakers,
prosecutors, and police). It might also well-inform the public debate as defiant officials tout their SAS
policies to the electorate, joust politically with locals who oppose SAS policies, and navigate tensions
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The discussion in this Part proceeds in five Sections. Section A intro-
duces the Esoteric Technology Ban as the primary type of legislation that has
sparked SAS policies and provides an example from California. Section A
presents the Esoteric Technology Ban as a core prompt for SAS policies and
shows its vulnerabilities to discretionary nonenforcement. Section B presents
the Supreme Court’s jurisprudence surrounding enforcement of the 1968 Gun
Control Act. Section B shows how the sorts of proof that the Court has de-
manded for Gun Control Act prosecutions might support discretionary non-
enforcement and influence decision-making in cases where relevant officials
are in conflict or are on the fence about enforcement. Section C critiques of
some recurring characteristics of Esoteric Technology Bans that invite discre-
tionary nonenforcement along a spectrum of more or less compelling cases.
Section D deploys themes from immigration scholarship to show how official
defiance and discretionary nonenforcement of gun laws can feed perceptions
of illegitimacy that fuel a cycle of private and public defiance of gun
with superior jurisdictions whose gun laws they contest. See discussion infra Section V.D (analyzing
the enactment of the New York SAFE Act as an illustration of the procedural effects in official and
private defiance).
This Article will not pursue every iteration of who will deploy what critique when, or the var-
ious “procedural” issues that will affect that deployment. For example, this article will draw lessons
from existing episodes of discretionary nonenforcement that raise questions like the relevance of fed-
eral precedent to different types of nonenforcement by state and local actors. See discussion infra
Section V.E (illustrating the engagement of policymakers, prosecutors, and police in discretionary
nonenforcement). Sections A and B, for instance, introduce the Esoteric Technology Ban (through a
state law example) and show how the Supreme Court’s interpretation of the federal Gun Control Act
creates opportunities for discretionary nonenforcement of such laws. See discussion infra Sections
V.A–B (highlighting the mechanisms that allow for discretionary nonenforcement). The innocence
doctrine discussed in Section B is technically limited to the Gun Control Act of 1968 and grounded
on the absence of an explicit mens rea standard in the statute. See discussion infra Section V.B (ana-
lyzing the existence of the mens rea element in Supreme Court jurisprudence). The questions sur-
rounding the impact of this federal precedent on local or state nonenforcement strategies turn on mul-
tiple contingent factors. See infra notes 214–215, 220 (addressing the standards established by the
Supreme Court under the GCA). States or localities might raise the federal precedent in addition to
or in lieu of a de jure policy of nonenforcement on Tenth Amendment grounds. See sources cited
supra note 63 (illustrating Supreme Court jurisprudence on Tenth Amendment grounds in creating
Constitutional Sanctuaries). Also, where a contested state law formally incorporates, or state policy
effectively adopts the GCA, the federal precedent becomes more relevant and perhaps controlling.
See infra text accompanying note 244 (highlighting the considerations made by police and prosecutors
toward local SAS policy in contemplating nonenforcement). And if the contested law is some future
cooperative federalism initiative, where the state consents to the role of enforcing a federal ETB that
supplements the GCA, the GCA innocence jurisprudence might be controlling in a conflict between
local and state governments. See infra notes 231–32 and accompanying text (illustrating the dynamic
between gun regulation and the GCA innocence jurisprudence in multiple contexts). Part VI discusses
the possibility that this sort of decision might involve favoritism and bias.
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restrictions. Section E considers the transferability of nonenforcement strate-
gies deployed against federal immigration and drug laws. Section E also of-
fers detailed treatment of how discretionary nonenforcement is complicated
and often discouraged in combination cases.
A. Esoteric Technology Bans Invite Discretionary Nonenforcement: An
Example from California
One of the primary opportunities for de facto implementation of sanctuary
policies through discretionary nonenforcement is rooted in the characteristics
of the laws that Second Amendment Sanctuaries tend to resist.
141
The primary
sort of legislation that has fueled the SAS movement is the Esoteric Technol-
ogy Ban (ETB).
142
ETBs have both prospective and residual functions. Prospectively, they
ban manufacture and retail sale of particular guns and accessories.
143
This
prospective function of ETBs is highly effective because new guns are manu-
factured and sold by a relatively small number of easily identified and closely
regulated entities.
144
The residual function of ETBs—restricting or banning guns or accesso-
ries already in the hands of private citizens—has been far less effective and
raises a host of problems.
145
One problem is political.
146
ETBs have fueled
141
. See Fields, supra note 1, at 454 (illustrating how during the Obama Administration, four states
resisted new accessories bans by declaring certain firearms and accessories “exempt from federal reg-
ulation under the Ninth and Tenth Amendments”).
142
. See id. at 440. Other restrictions have accompanied these proposals; for example, red flag laws
also have prompted opposition. See, e.g., Fields, supra note 1, at 440–41 (discussing Colorado sanc-
tuaries’ opposition to red flag and confiscation proposals).
143
. See generally Allen Rostron, Style, Substance, and the Right to Keep and Bear Assault Weap-
ons, 40 CAMPBELL L. REV. 301, 309 (2018) (explaining how recent legislation classifies “assault
weapons” in part “based on a weapon’s parts or features”).
144
. See Michael Siegel, Analysis: How Firearm Manufacturers Influence American Gun Culture,
in 6 Charts, PBS (May 31, 2022, 4:30 PM), https://www.pbs.org/newshour/nation/analysis-how-fire-
arm-manufacturers-influence-american-gun-culture-in-6-charts (showing how “only a small number
of gun-makers dominate the [U.S.] market,” with over seventy percent of pistols currently produced
by only five manufacturers).
145
. See Johnson, supra note 28, at 846 (describing how new guns that are privately manufactured
by individuals serve as a long-standing, practical impediment to the efficacy of ETBs). For a deeper
analysis of the “remainder problem,” see id. (examining how the identification of current holders of
newly designated firearms contraband constitutes an aspect of the “remainder problem”).
146
. See also Johnson, supra note 28, at 849 (arguing that “our political system is rooted in distrust
of the government, and [that] some people will view resistance to gun confiscation as a natural exten-
sion of this healthy distrust”).
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the fears and ire of gun owners and sparked the rise of Second Amendment
Sanctuaries as opponents anticipate seizures of long-held, previously legal
property.
147
Another problem impeding the residual function of ETBs is that
they exhibit a recurring set of characteristics that invite private defiance and
discretionary nonenforcement.
148
The model ETB starts with a nominal ban on particular versions of “bad
gun” technology.
149
The existing private inventory is either grandfathered or
required to be removed from the jurisdiction.
150
Often, these bans prompt
mechanical workarounds that produce compliant versions of essentially the
same guns.
151
In many cases regulators respond by banning the innovation
(while often grandfathering the existing ones), and that cycle might repeat
several times.
152
The result is a complex set of technical and timing distinc-
tions that separate legal guns from very similar or functionally identical con-
traband.
153
The top cohort of gun enthusiasts, whose ingenuity helps fuel this cycle,
might understand most of the distinctions between legal guns and ETB con-
traband.
154
However, for casual holders and downstream, “subsequent
147
. See Halbrook, supra note 7, at 283 (describing Virginians’ vigorous reaction to “draconian
bills” that criminalized items “major portions of the population [believed] to be innocuous and consti-
tutionally protected”).
148
. See generally Tal Kopan, Why Even the Gun Laws that Exist Don’t Always Get Enforced, CNN
(Jan. 9, 2016, 1:01 PM), https://www.cnn.com/2016/01/09/politics/obama-executive-orders-gun-con-
trol-enforcement-gap (explaining how complex standards in recent gun control legislation disincen-
tivize prosecutors and law enforcement officers from actually enforcing the legislation).
149
. See, e.g., Naperville City Council Passes Ban on Commercial Sales of Assault Rifles, CBS
CHICAGO (Aug. 17, 2022, 6:03 AM), https://www.nbcchicago.com/news/local/naperville-city-coun-
cil-passes-ban-on-commercial-sales-of-assault-rifles/2916896/ (illustrating a newly passed ordinance
in Naperville, Illinois, which effectively serves as a blanket ban on the local sale of “assault-style”
weapons).
150
. See infra text accompanying notes 246–69 for discussion of federal restrictions codified in 18
U.S.C. § 922(r).
151
. See, e.g., Featureless Grip, JUGGERNAUT TACTICAL, https://jtactical.com/products/feature-
less-grip (last visited Sep. 13, 2022) (displaying a rear grip accessory for an AR-15, described as “the
most aggressive CA compliant grip yet,” which is specifically designed to sidestep California vertical
grip restrictions).
152
. See generally Matt Drange, Despite Ban, Thousands of Assault Weapons Remain Legal in Cal-
ifornia, REVEAL (Mar. 13, 2015), https://revealnews.org/article/despite-ban-thousands-of-assault-
weapons-remain-legal-in-california/ (emphasizing the vast number of existing guns potentially ex-
empt from California’s Assault Weapons Control Act).
153
. See id.
154
. See Scott Gara, What Makes a Rifle California Compliant?, GUNS.COM (Oct. 15, 2020),
https://www.guns.com/news/what-makes-a-long-gun-california-compliant (explaining the myriad of
requirements owners must satisfy for an AR-15 to comply with technical restrictions in California).
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holders” of banned technologies (who have ordinary knowledge of firearms),
ETBs present a series of identification and compliance issues that fuel solid
claims of innocence by violators.
155
Those claims invite nonenforcement by
defiant government officials and influence associated controversies.
156
Sub-
sections One and Two below explain the lineage of the ETB legislative form
and present an example from California.
1. Esoteric Technology Bans: Background
Most current ETBs are versions of the “bad gun formula” that I described
and critiqued nearly three decades ago.
157
The first major iteration, the 1994
Federal Assault Weapon Ban, was almost nonsensical in its distinction be-
tween good guns and bad guns.
158
It elided the core functioning of the guns
and focused instead on things that only affected appearance—–e.g., bayonet
lugs, flash suppressors, pistol grips, and adjustable stocks.
159
I have described elsewhere how politicians craving votes of both the gun
control constituency and gun owners produce legislation that tries to signal a
commitment to gun control along with assurance to gun owners of an intent
to ban only a small category of unusually dangerous guns.
160
This political
strategy has met stiff resistance from gun owners because, in order to be ef-
fective, these gun bans also require (eventually) banning the much larger class
of effective substitutes.
161
Nonetheless, lawmakers continue to advance ETBs
that purport to distinguish “bad guns” from functionally identical or very sim-
ilar “good guns,” by focusing on stylistic factors (thus the focus on military-
155
. See id.
156
. See generally Fields, supra note 1, at 469–74 (discussing “partisan preemption” with respect
to SAS enforcement). For example, policymakers, prosecutors, and police in various combinations
might disagree about whether a particular gun infraction is within the scope of the local SAS policy
or about the comparative strength of the gun infraction in a vexing combination case. See id. The
argument that enforcement seems at odds with the Supreme Court’s GCA innocence jurisprudence
would be a relevant and perhaps dispositive element in resolving such disagreements. See id.
157
. See Nicholas J. Johnson, Shots Across No Man's Land: A Response to Handgun Control, Inc.'s,
Richard Aborn, 22 FORDHAM URB. L.J. 441, 441 (1995); see also JOHNSON ET AL., supra note 48, at
1149–52.
158
. See 18 U.S.C. § 921 (1994).
159
. See id.
160
. See Nicholas Johnson, The Progressive Gun-Control Charade, WALL ST. J. (Oct. 25, 2015),
https://www.wsj.com/articles/the-progressive-gun-control-charade-1445806103.
161
. See id.
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style guns) that have little to nothing to do with the guns’ core lethality.
162
The impulse for the bad gun theme can be traced to the gun control lobby
strategy summarized in a 1998 memorandum by Josh Sugarmann of the Vio-
lence Policy Center.
163
Sugarmann lamented that the public and media had
lost interest in the handgun ban crusade.
164
He urged gun control advocates
to introduce a “new topic in what has become to the press and public an ‘old’
debate.”
165
The new focus, he argued, should be assault weapons.
166
Assault weapons—just like armor piercing bullets, machine guns and
plastic firearms—are a new topic. The weapons’ menacing looks,
coupled with the public’s confusion over fully automatic machine
guns versus semiautomatic assault weapons—anything that looks
like a machine gun is assumed to be a machine gun—can only in-
crease the chance of public support for restrictions on these weap-
ons.
167
By pressing the bad gun formula aggressively and reacting to enthusiasts’
responses and workarounds, several jurisdictions have constructed intricate
ETBs that leave many holders, and especially subsequent holders of contra-
band technology, with solid claims of innocence and fuel a spectrum of dis-
cretionary nonenforcement decisions by defiant public officials.
168
The next
subsection provides an example of this from California.
2. California’s Bullet-Button Ban Exemplifies the ETB Type and
Adds Texture
This subsection has two aims. First, it provides a classic example of the
ETB type through a discussion of California’s attempts to identify and ban
“assault weapons.” Second, it reveals an important variation of discretionary
162
. See Nicholas Johnson, The Saturday Night Special, LAW AND LIBERTY (May 12, 2013),
https://lawliberty.org/the-saturday-night-special/; E. Gregory Wallace, “Assault Weapon” Myths, 43
S. ILL. U. L.J. 193, 200 (2018).
163
. See Josh Sugarmann, Assault Weapons and Accessories in America, VIOLENCE POL’Y CTR.
(1998), https://vpc.org/publications/assault-weapons-and-accessories-in-america/.
164
. See id.
165
. Id.
166
. See id.
167
. Id.
168
. See JOHNSON ET AL., supra note 48, at 1149–53.
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nonenforcement—that is, discretionary nonenforcement through refusal to
create special, ad hoc solutions to the enforcement knots that plague ETBs.
California legislators started by creating definitions of banned guns that
were mechanically easy to work around.
169
Those mechanical innovations
generated legislative reactions and those reactions elicited new waves of tech-
nical workarounds and new enforcement knots.
170
Each cycle of this dynamic
produced more complex definitions and demanded a higher level of expertise
to navigate.
171
The California bullet-button ban provides a good illustration.
172
The bul-
let-button is a mechanical innovation, developed in response to California’s
ban on particular semiautomatic rifles that have detachable magazines (i.e.,
the removable ammunition feeding device).
173
Presumably hoping to slow
reloading, California restricted guns that could accept “detachable box maga-
zines,” legislatively defined as magazines that could be removed from the gun
without the aid of a tool.
174
The typical detachable magazine can be removed
from the gun by a finger press on the gun’s magazine release button.
175
In response to the ban on guns with traditional magazine release buttons, and
guided by the statutory language, gun enthusiasts developed a mechanism that
only allowed removal of the magazine from the AR-15 rifle by using a tool—
i.e., the tip of a bullet.
176
And for a period of time, these bullet-button
169
. See David B. Kopel, We Should Be More Skeptical About Gun Control, in GUNS: CONCEAL
AND CARRY 136, 136–81 (Anne Cunningham ed., 2018). California’s first assault weapon restrictions
enacted in 1989 elided technical distinctions. See id. Rather, the restrictions were created by legisla-
tive staffers who thumbed through a picture book of guns and decided which guns looked bad. See id.
The result was an “incoherent” law which among other things outlawed certain firearms that do not
exist since the staffers just copied the typographical errors from the book or associated the model by
one manufacturer with another manufacturer whose name happened to appear on the same page. See
id.
170
. See id.
171
. See id.
172
. See CAL. PENAL CODE § 30900(b) (Deering 2017).
173
. See id.; see also Website Homepage, BULLET BUTTON, https://www.bulletbutton.com (last
visited Dec. 8, 2021) (website and online shop containing information on California compliant firearm
tools).
174
. See CAL. CODE REGS. tit. 11, § 5471 (West 2022).
175
. For a detailed illustration of the magazine release, see Rusty Guns, How to Remove Replace
Magazine Release Button on an AR15 Rifle, YOUTUBE (Feb. 7, 2018), https://www.youtube.com/
watch?v=UhLa5yNWJxE.
176
. Damon Arthur, Workarounds of New California Gun Laws Already in Play, REC.
SEARCHLIGHT (Dec. 24, 2017, 10:44 AM), https://www.redding.com/story/news/2017/12/22/worka-
rounds-new-california-gun-laws-already-play/971864001 (“They can pass all the laws they want, and
I can guarantee you we are going to find a way around them.”).
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modifications permitted California gun owners to continue possessing AR-15
rifles that could be loaded in more or less traditional fashion—the only differ-
ence being the need to use a bullet tip rather than one’s finger to operate the
magazine release button.
177
California then amended the law to ban the bullet-
button, but grandfathered existing bullet-button guns so long as they were reg-
istered by June 30, 2018.
178
But it turns out that the bullet-button was not actually banned.
179
The law
defined prohibited guns as a combination of features, including the bullet-
button.
180
This menu of features could be adjusted as well.
181
So, if a tradi-
tional AR-15 rifle was configured to remove the pistol grip and other prohib-
ited characteristics (through other mechanical innovations) guns with the bul-
let-button could be legally possessed in California without registration.
182
One California gun organization attempted to explain the difference between
legal and contraband guns with an intricate twenty-eight-cell flow chart.
183
Jennifer Carlson provides a rare insider’s perspective on the enforcement
difficulties presented by the California law.
184
Carlson interviewed a variety
of California police chiefs, who spoke on the condition of anonymity, about
the challenges of enforcing the state’s gun laws and revealed ad hoc police
adaptations necessary to implement the law.
185
One chief recounted how the complexity of the law has prompted some
177
. See BoonDoggle, California Bullet Button Secret, YOUTUBE (Jan. 1, 2012),
https://www.youtube.com/watch?v=SOLNvk1FVGo (discussing another innovation that supple-
mented the bullet-button).
178
. CAL. PENAL CODE § 30900(b) (Deering 2011) (“Any person who, from January 1, 2001, to
December 31, 2016, inclusive, lawfully possessed an assault weapon that does not have a fixed mag-
azine . . . including those weapons with an ammunition feeding device that can be readily removed
from the firearm with the use of a tool, shall register the firearm before July 1, 2018.”); CAL. PENAL
CODE § 30515 (Deering 2020) (defining “assault weapon” under California law).
179
. See Jim, 2019 Featureless AR-15 Rifles: All You Need to Know!, CALIGUNNER, https://ca-
ligunner.com/california-compliant-featureless-rifle (last visited Aug. 26, 2022) [hereinafter Feature-
less AR-15 Rifles] (discussing how to maintain a legal bullet-button assault weapon).
180
. Id.; PENAL § 30515 (defining “assault weapon” under California law).
181
. See Featureless AR-15 Rifles, supra note 179 (discussing how features can be modified or
omitted to create a legal assault weapon).
182
. Id. (describing the manner in which a pistol grip and shoulder stock of a rifle can allow an
owner to avoid registration through configurations that technically constitute legal, “featureless” ri-
fles).
183
. CalGuns Shooting Sports Association, California Centerfire, Semi-Auto Rifle Identification,
CALGUNS.NET, 1–2, https://www.calguns.net/caawid/flowchart.pdf (last visited Aug. 26, 2022).
184
. JENNIFER CARLSON, POLICING THE SECOND AMENDMENT: GUNS, LAW ENFORCEMENT, AND
THE POLITICS OF RACE (2020).
185
. Id. at 110–17.
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officers, especially at the entry level, to rely on “cheat sheets” to identify vio-
lations of the law.
186
Others “arrest people and then do the research—and then
release or charge on the arrest. . . . It’s like you need to be a specialist to
regurgitate the law.”
187
Another chief complained that it “practically [re-
quires] a law degree to understand the 115-plus pages on ARs [assault weap-
ons].”
188
Another admitted that some officers engage in ad hoc nonenforce-
ment when dealing with armed “good guys,” like the rancher who does not
realize his gun or magazine is now illegal, explaining, “[Y]ou have officers
who see [high capacity magazines], and they might not bother enforcing it.”
189
Carlson reports that these sorts of issues have fueled a growing divide
between police and anti-gun lawmakers, who are also increasingly hostile to
law enforcement.
190
This tension has produced a subclass of “gun populism”
that Carlson calls “anti-elitism”—where police align politically with armed
good guys against anti-gun legislators.
191
California police chiefs expressed
apprehension about lawmakers’ competence in the subject matter.
192
One
chief castigated progressive legislators as “counterfeit experts” who have cre-
ated a regime of complex, contradictory laws that saddle police with an “en-
forcement nightmare.”
193
The sorts of problems that the California police chiefs complained about
fueled a federal civil rights suit in Haynie v. Harris, where the plaintiffs al-
leged that the government’s failure to update its Assault Weapon Identifica-
tion Guide was contributing to wrongful arrests.
194
The state was under a stat-
utory duty to provide training and material to ensure compliance with
California’s gun laws.
195
When Haynie was filed, the guide was ten years out
of date, and the plaintiffs had experienced arrests based on misidentified
guns.
196
The case resulted in a concession by the Attorney General’s office
186
. Id. at 112.
187
. Id.
188
. Id.
189
. Id.
190
. See id. at 111.
191
. Id.
192
. Id.
193
. Id. at 111–12.
194
. Haynie v. Harris, No. C 10-01255 SI, 2014 U.S. Dist. LEXIS 28293, at *2 (N.D. Cal. Mar. 4,
2014).
195
. CAL. PENAL CODE § 31115 (Deering 2021).
196
. Haynie v. Harris, No. C 10-01255 SI, 2014 U.S. Dist. LEXIS 28293, at *1–2 (N.D. Cal. Mar.
4, 2014).
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that AR-15 rifles equipped with bullet-buttons actually were legal under Cal-
ifornia law.
197
The challenged arrests were likely caused by police officers
relying on visual inspection from the outdated guide.
198
California ultimately
banned the bullet-button but grandfathered existing bullet-button guns so long
as they were registered by June 30, 2018.
199
In subsequent litigation charging that the registration system failed to
function properly, a federal court required California to re-open registration
of bullet-button rifles, but only for rifles possessed within a particular window
of time.
200
The California Department of Justice website includes a thirty-
five-page “Frequently Asked Questions” section that attempts to illuminate
the multitude of issues surrounding possession and use of bullet-button and
other assault weapons.
201
One California gun organization demonstrates the
next turn in the cycle with a description of five “California compliant” prod-
ucts that satisfy the bullet-button prohibition but still allow reloading with vir-
tually the same speed.
202
California’s assault weapon legislation is an archetype of the sort of ETB
that generates complex categories of contraband and prompts a range of in-
tentional and innocent violations that create a spectrum of opportunities for
discretionary nonenforcement.
203
The California bullet-button saga also
197
. See Haynie v. Harris, 658 F. App’x. 834, 837 (9th Cir. 2016).
198
. Id. at 836–37. As of August 2022, the California Department of Justice, Bureau of Firearms,
still had neglected to update its Assault Weapons Identification Guide, though there is a notice that it
is currently under revision. See Assault Weapons Identification Guide, OFF. OF THE ATT’Y GEN., CAL.
DEP’T OF JUST. (2001), https://oag.ca.gov/sites/all/files/agweb/pdfs/firearms/forms/aws-guide.pdf.
199
. CAL. PENAL CODE § 30900(b) (Deering 2017) (declared unconstitutional by Sharp v. Becerra,
No. 2:18-CV-02317 (E.D. Cal. Mar. 29, 2021)).
200
. See Bullet-Button Assault-Weapon Registration System, CAL. DEP’T OF JUST., https://oag.ca.
gov/firearms/bullet-button-assault-weapon (last visited Aug. 26, 2022); Stipulated Injunction & Con-
sent Decree at 3–5, Sharp, No. 2:18-CV-02317.
201
. Frequently Asked Questions: Assault Weapons and .50 BMG, CAL. DEP’T OF JUST.,
https://oag.ca.gov/firearms/regagunfaqs#16b (last visited Aug. 26, 2022).
202
. See Bullet Button, CAL. CARRY, https://www.californiacarry.org/bullet-button.html (last vis-
ited Aug. 26, 2022). The legislation to ban the bullet-button has prompted at least five new technical
workarounds, which are described on the California Carry website. Id. These mechanisms exploit the
new definition of detachable magazines—namely, as magazines that can be removed without disas-
sembling the gun. Id. These new workarounds allow removal and replacement of the AR-15 magazine
through a quick separation of the upper receiver from the lower receiver—which evidently satisfies
the requirement of magazine removal only through disassembly. Id.; see CAL. CODE REGS. tit. 11, §§
5477(b)–(c) (2021); see also Arthur, supra note 176 (discussing California’s gun laws and worka-
rounds utilized by assault rifle owners).
203
. CAL. PENAL CODE § 30515 (Deering 2019) (defining “assault weapon” under California law).
See, e.g., CARLSON, supra note 184, at 110–17 (illustrating the many ways new assault rifle legislation
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illuminates the possibility of discretionary nonenforcement through refusal to
create ad hoc fixes of flawed legislation.
In the standard scenario, the prompt for discretionary nonenforcement
will be public SAS policy that endorses overt refusal to cooperate with tar-
geted gun control laws.
204
The California example demonstrates something
different.
205
It shows how discretionary nonenforcement might unfold more
subtly, through the lack of special effort necessary to implement ETB legisla-
tion.
206
Note the spectrum of discretionary ad hoc responses that officers de-
veloped in response to the difficulties embedded in the byzantine California
legislation—cheat sheets, arresting on gun charges, charging, then releasing
based on post-arrest research, and not attempting to enforce the law.
207
This suggests how discretionary nonenforcement decisions might shift as
a function of the practical difficulties of ETB enforcement.
208
As enforcement
knots demand more special effort, the option of nonenforcement becomes
more appealing.
209
As discussed below, these observations are not limited to California.
ETBs in general present recurring enforcement puzzles that invite discretion-
ary nonenforcement.
210
The next Section shows how those nonenforcement
decisions might be impacted by the Supreme Court’s Gun Control Act
has prompted different types of nonenforcement).
204
. See Brianna Provenzano, What Happens if Sheriffs Refuse to Enforce State Gun-Control
Laws?, PAC. STANDARD (Mar. 13, 2019), https://psmag.com/social-justice/what-happens-if-sheriffs-
refuse-to-enforce-state-gun-control-laws (summarizing SAS policies in New Mexico and other states
that demonstrate a refusal to cooperate with new gun control legislation); Su, supra note 13 (“In just
the past year, more than 400 local governments—mostly counties—have adopted resolutions declaring
themselves ‘Second Amendment sanctuaries.’ Through these resolutions, these Second Amendment
sanctuaries are expressing support for gun rights. They are attacking proposed gun control legisla-
tion.”).
205
. See CARLSON, supra note 184 (discussing nonenforcement through failure to implement con-
sistently new gun control legislation).
206
. See id.
207
. See id. at 110–17. The examples discussed by Jennifer Carlson all occurred before any Cali-
fornia jurisdictions declared themselves as Second Amendment Sanctuaries. See also Erika I. Ritchie,
California City Declares Itself a 2nd Amendment Freedom City, E. BAY TIMES (Jun. 3, 2021, 5:27
A.M.), https://www.eastbaytimes.com/2021/06/03/san-clemente-councilman-gets-support-to-declare
-city-as-2nd-amendment-freedom-city/ (reporting passage of an ordinance by the City of San
Clemente making it the first Orange County and the Second California SAS).
208
. See CARLSON, supra note 184, at 112 (describing California gun laws as “an enforcement
nightmare”).
209
. See id. at 112.
210
. See id., at 108–09 (discussing gun populism as a concept and how that has blurred the line
between police and armed citizens).
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enforcement jurisprudence.
B. The Supreme Court’s Gun Control Act Jurisprudence Facilitates
Discretionary Nonenforcement
This Section will show how the Supreme Court’s jurisprudence surround-
ing federal firearms regulation supports discretionary nonenforcement of
ETBs and innocence claims by individual refuseniks.
211
This jurisprudence
becomes especially relevant as first-generation refuseniks die off and leave a
legacy of contraband in the hands of a new class of holders.
212
Many of these
211
. See infra Section V.B. The innocence jurisprudence is relevant in the context of enforcement
of federal firearms legislation (by either state or federal officials). Staples v. United States., 511 U.S.
602, 615 (1994) (interpreting the law’s intention as not to punish well-intentioned citizens). In the
case of independent state gun legislation, lawmakers might respond to the issues raised in this Part by
writing anti-factual presumptions of knowledge and culpability into the law. See, e.g., N.Y. PENAL
LAW § 265.03(3) (McKinney 2006) (providing an example of gun legislation making intent a require-
ment for criminalization). New York, for example, criminalizes unlicensed possession of a loaded
firearm outside of the home or possession of a loaded firearm anywhere with the intent to use it un-
lawfully. PENAL §§ 265.03(3), 265.03(1)(b). Possession of a loaded gun is a “violent felony” and is
punished more severely than possession of an unloaded gun, which is New York considers a “non-
violent” felony. Compare PENAL § 265.03 (classifying criminal possession of a loaded firearm as a
class C felony), with PENAL § 265.01–b(1) (classifying criminal possession of a firearm as a class E
felony). By legislative fiat, New York considers a firearm “loaded” if a person possesses it “at the
same time” they possess ammunition, regardless of whether the firearm is, in fact, loaded. PENAL §
265.00(15); People v. Gordian, 952 N.Y.S.2d 46, 47 (N.Y. App. Div. 2012) (holding that it is “legally
irrelevant” whether cartridges are in a firearm at the time of the arrest).
The state political dynamic in the different states should produce a broad variation in the ability
of the legislature to deploy such anti-factual presumptions, or otherwise resolve by fiat, the sorts of
enforcement issues raised in Part III. In Virginia, for example, there is a strong local sanctuary move-
ment and passing restrictive legislation is a challenge. See Jeff Williamson, List of Second Amendment
Sanctuaries in Virginia and Where It’s Being Discussed, WSLS NEWS (Aug. 11, 2020, 12:03 AM),
https://www.wsls.com/news/local/2019/11/27/list-of-second-amendment-sanctuaries-in-virginia-
and-where-its-being-discussed/ (listing local second amendment sanctuaries in Virginia). Passing ag-
gressively anti-factual presumptions should be harder there than in New York. Compare id., with
RICHARD A. GREENBERG ET AL., 6A N.Y. PRAC., CRIM. L. (4th ed. 2021) (New York criminal practice
series, stating in section 33:1 that the most voluminous Penal Law article is Article 265, which regu-
lates the sale, possession, and use of firearms and other dangerous weapons).
212
. See Illinois Ass’n of Firearms Retailers v. City of Chicago, 961 F. Supp. 2d 930, 945 (S.D. Ill.
2014). The subsequent holder scenario is multifaceted. See generally Philip J. Cook & Jens Ludwig,
Guns in America: National Survey on Private Ownership and Use of Firearms 1, 6 exhibit 5, NAT'L
INST. JUST. (1997), https://www.ojp.gov/pdffiles/165476.pdf (finding that nineteen percent of the 251
guns in the nationwide survey sample were acquired as gifts). Nothing in the regulatory sphere allows
precise tracking of the volume and timing of subsequent transfers. Meghan Keneally, 13 Questions
About Guns in the United States and the Surprising Answers, ABC NEWS (Mar. 2, 2018, 4:12 AM),
https://abcnews.go.com/US/guns-/story?id=53388007 (discussing how there are no federal require-
ments for private sellers to collect data from customers). However, in litigation over an attempt by
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38
subsequent holders will be truly ignorant about whether their newly acquired
guns and accessories are legal, and most of them will be able to construct
strong claims of ignorance.
213
Decisions to arrest or prosecute these subse-
quent holders will be discouraged by the standards that the Supreme Court has
established for prosecutions of knowing violations under the primary federal
gun control law, the 1968 Gun Control Act (GCA).
214
Most subsequent holders of ETB contraband will have stronger claims of
innocence than the Supreme Court credited in Staples v. United States.
215
There, the Court overturned the defendant’s conviction for possession of an
AR-15 semiautomatic rifle that, unbeknownst to him, had worn down or been
modified to fire more than one round per trigger pull and therefore became a
machine gun in violation of the 1934 National Firearms Act.
216
Rejecting the
government’s argument that the GCA had dispensed with a traditional mens
rea element, the Court articulated the subsequent holder issue that drives the
analysis here:
217
[I]n the Government’s view, any person who has purchased what he
believes to be a semiautomatic rifle or handgun, or who simply has
inherited a gun from a relative and left it untouched in an attic or
the city of Chicago to ban gifts of firearms, the court did consider evidence showing that one subse-
quent holder scenario—the gifting of firearms—is a non-trivial source of lawfully acquired guns. See
Illinois Ass’n of Firearms Retailers, 961 F. Supp. 2d at 945; see also David C. Grossman et al., Gun
Storage Practices and Risk of Youth Suicide and Unintentional Firearm Injuries, 293 J. AM. MED.
ASS’N 707, 708–09, 711 tbl. 2 (2005) (showing that fifteen percent of 480 randomly selected control
firearms from Washington, Oregon, and Missouri were acquired as gifts).
213
. See generally Illinois Ass’n of Firearms Retailers, 961 F. Supp. 2d at 945 (discussing instances
where people receive guns as gifts).
214
. 18 U.S.C. § 922; see also Bryan v. United States, 524 U.S. 186, 192, 200 (1998) (holding that
the term “willfully” in the Gun Control Act requires a defendant to have actual knowledge that their
conduct was illegal). These standards would directly govern future federal ETBs—e.g., renewal of
the 1994 AWB—enacted as amendments to the GCA. 18 U.S.C. § 921 (1994). They also might serve
as practical guidance and persuasive authority for nonenforcement decisions of a variety of officials
committed to sanctuary policies. See William J. Vizzard, The Gun Control Act of 1968, 18 ST. LOUIS
U. PUB. L. REV. 79, 79 (1999) (“For three decades, the Gun Control Act of 1968 (GCA) has formed
the legal core of national gun policy in the United States”).
215
. See Staples, 511 U.S. at 600, 611–12 (1994).
216
. Id. at 605 (“[W]e must construe the statute in light of the background rules of common law.”)
(citing United States v. Balint, 258 U.S. 250 (1922)). Traditionally, scienter was a necessary element
in every crime. See also United States v. U.S. Gypsum Co., 438 U.S. 422, 436 (1978) (recognizing
that the existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-
American jurisprudence).
217
. Staples, 511 U.S. at 608–14 (comparing guns to several other objects for which the government
determined the necessity of mens rea).
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basement, can be subject to imprisonment, despite absolute ignorance
of the gun’s firing capabilities, if the gun turns out to be an automatic.
We concur with the Fifth Circuit’s conclusion on this point: ‘It is un-
thinkable to us that Congress intended to subject such law abiding,
well-intentioned citizens to a possible ten-year term of imprisonment
if . . . what they genuinely and reasonably believed was a conven-
tional semi-automatic [weapon] turns out to have worn down into or
been secretly modified to be a fully automatic weapon.”
218
The Court also explained how a different result might occur for certain
crimes deemed public welfare offenses.
219
In an earlier case, United States v.
Freed,
220
the Court upheld the conviction of a defendant who was prosecuted
for possession of hand grenades.
221
The Freed decision concluded that, as
long as a defendant knows he is dealing with a dangerous device of a character
that places him in responsible relation to a public danger, he should be alerted
to the probability of strict regulation and must determine at his peril whether
his conduct is illegal.
222
The Court rejected the Freed approach on the facts of Staples.
223
The
majority rejected the government’s contention that “one would hardly be sur-
prised to learn that [owning a gun] is not an innocent act.”
224
“That proposi-
tion,” the Court found, “is simply not supported by common experience.”
225
The Court highlighted that Staples believed he was in possession of a
lawful, commonly owned rifle—possession of which put him in the company
218
. Id. at 615; see also Rehaif v. United States, 139 S. Ct. 2191, 2195 (2019). In Rehaif, the
Supreme Court reversed the conviction of a foreign student with an expired visa who went to a gun
range, thereby violating the GCA prohibition on gun possession by illegal aliens. Id. at 2200. Rehaif
requested an instruction that the government prove he knew his immigration status was “without au-
thorization.” Id. at 2194. The Court reversed the trial judge’s determination that the government was
not required to prove that Rehaif knew his immigration status was illegal. Id. at 2191, 2200.
219
. Staples, 511 U.S. at 606.
220
. 401 U.S. 601 (1971).
221
. Id. at 605, 609. The NFA allows possession of “destructive devices.” 26 U.S.C. § 5845(f).
See also Firearms - Guides - Importation & Verification of Firearms - National Firearms Act Defini-
tions - Destructive Device, BUREAU OF ALCOHOL, TOBACCO, FIREARMS & EXPLOSIVES (Apr. 26,
2018), https://www.atf.gov/firearms/firearms-guides-importation-verification-firearms-national-fire-
arms-act-definitions-1.
222
. Freed, 401 U.S. at 605, 609.
223
. Compare Freed, 401 U.S. at 605, 609, with Staples, 511 U.S. at 615.
224
. Freed, 401 U.S. at 609,
225
. Staples, 511 U.S. at 610.
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of the “[r]oughly 50 percent of American homes [that] contain at least one
firearm.”
226
The Court emphasized that “in the vast majority of States, buying
a shotgun or rifle is a simple transaction that would not alert a person to
[heightened] regulation any more than would buying a car.”
227
Contrast the
grenade in Freed.
228
Purchasing one anywhere is virtually impossible.
229
Both Staples and Freed involved potential violations of the 1934 National
Firearms Act (NFA), which imposes stringent rules on the possession of a
narrow class of guns, including machine guns and other exotic items that were
targeted as “gangster weapons” when the legislation was enacted in 1934.
230
The difference is that Staples involved what appeared to be a common semi-
automatic firearm regulated under the less stringent 1968 GCA (which regu-
lates the ordinary firearms that make up more than ninety-nine percent of the
private gun inventory).
231
Freed, on the other hand, involved a grenade, which
has no GCA counterpart and thus prompted a different set of expectations
about regulations than those attached to ordinary firearms.
232
226
. Id. at 613–14.
227
. Id.
228
. See id. at 601 (“In contrast to . . . the possession of hand grenades considered in Freed, private
ownership of guns in this country has enjoyed a long tradition of being entirely lawful conduct”).
229
. Freed, 401 U.S. at 609.
230
. See id. at 605, 609; Staples, 511 U.S. at 615; 26 U.S.C. § 5861 (outlining prohibited acts under
the National Firearms Act). For a more detailed discussion of the NFA including its grounding on the
taxing power versus the commerce power, see Nicholas J. Johnson, The Power Side of the Second
Amendment Question: Limited, Enumerated Powers and the Continuing Battle over the Legitimacy of
the Individual Right to Arms, 70 HASTINGS L.J 717, 752 (2019).
231
. See Staples, 511 U.S. at 600. The number of common firearms governed by the GCA likely
exceeds 400 million. See JOHNSON ET AL., supra note 48, at 8–14. In 2021, the ATF reported 741,146
NFA registered machine guns. See Annual Statistical Update 2021: Alcohol, Tobacco, Firearms and
Explosives: Firearms Commerce in the United States, Exhibit 8, BUREAU OF ALCOHOL, TOBACCO,
FIREARMS & EXPLOSIVES (showing the number of NFA weapons), https://www.atf.gov/fire-
arms/docs/report/2021-firearms-commerce-report/download (last visited Aug. 27, 2022).
232
. Staples, 511 U.S. at 611–12 (“[T]hat an item is ‘dangerous’ in some general sense does not
necessarily suggest, as the Government seems to assume, that it is not also entirely innocent. Even
dangerous items can, in some cases, be so commonplace and generally available that we would not
consider them to alert individuals to the likelihood of strict regulation. As suggested above, despite
their potential for harm, guns generally can be owned in perfect innocence. Of course, we might surely
classify certain categories of guns—no doubt including the machineguns, sawed-off shotguns, and
artillery pieces that Congress has subjected to regulation—as items the ownership of which would
have the same quasi-suspect character we attributed to owning hand grenades in Freed. But precisely
because guns falling outside those categories traditionally have been widely accepted as lawful pos-
sessions, their destructive potential, while perhaps even greater than that of some items we would
classify along with narcotics and hand grenades, cannot be said to put gun owners sufficiently on
notice of the likelihood of regulation to justify [dispensing with] . . . knowledge of a weapon’s char-
acteristics.”).
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In a variety of ways, the ETBs that spark SAS policies create contraband
from items that are far more common than the gun at issue in Staples.
233
The
gun in Staples was ultimately determined to straddle the line between a com-
mon semiautomatic firearm regulated under the 1968 GCA and a machine gun
regulated under the 1934 NFA.
234
In contrast, the assault weapons restrictions at the core of most ETBs at-
tempt to create a new class of contraband by banning common semiautomatic
guns that are governed exclusively by the 1968 GCA.
235
The volume of this
new class of potential contraband is vast.
236
The AR-15 at the center of the
assault weapon controversy has been the most popular rifle type in America
for several years running.
237
In 2020, there were approximately twenty mil-
lion AR-15 type rifles in private hands.
238
Also, for decades, the United States
government has sold other semiautomatic rifles like the M1 Garand (a true
military rifle that is ballistically more lethal than the AR-15) to private citizens
by the United States government through the Civilian Marksmanship Pro-
gram.
239
So, while heavy regulation of machine guns is longstanding, “assault
weapon” bans at the heart of ETBs are not. Rather, they create a new class of
contraband from common semiautomatic firearms that many buyers will lit-
erally have purchased through ordinary transactions at Walmart.
240
Other types of ETB contraband send even weaker signals of illegality than
233
. See id. at 603.
234
. See id. at 602–03. See also Gun Control Act, BUREAU OF ALCOHOL, TOBACCO, FIREARMS
AND EXPLOSIVES (Jan. 23, 2020), https://www.atf.gov/rules-and-regulations/gun-control-act; Na-
tional Firearms Act, BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES (Apr. 7, 2020),
https://www.atf.gov/rules-and-regulations/national-firearms-act.
235
. See Gun Control Act of 1968, 18 U.S.C.A. § 921(a) (West 2022) (specifying expanded firearm
restrictions); see also Vizzard, supra note 214 (discussing the Gun Control Act of 1968 in detail).
236
. See sources cited supra note 235.
237
. JOHNSON ET AL., supra note 48, at 1152.
238
. See Matthew Loh, America Has 20 Million AR-15 Style Rifles in Circulation, and More Guns
Than People in the Country, BUS. INSIDER (May 29, 2022, 11:40 PM), https://www.busi-
nessinsider.com/us-20-million-ar-15-style-rifles-in-circulation-2022-5 (discussing the prevalence of
AR-15 type rifles in the United States).
239
. M1 Garand, CIVILIAN MARKSMANSHIP PROGRAM, https://thecmp.org/sales-and-service/m1-
garand/ (last visited Aug. 28, 2022). The AR-15 is commonly used in a popular category of this
government-sponsored rifle competition. See Homepage, CIVILIAN MARKSMANSHIP PROGRAM,
https://thecmp.org/ (last visited Aug. 28, 2022).
240
. George Zornick, How Walmart Helped Make the Newtown Shooter’s AR-15 the Most Popular
Assault Weapon in America, THE NATION (Dec. 19, 2012), https://www.thenation.com/article/ar-
chive/how-walmart-helped-make-newtown-shooters-ar-15-most-popular-assault-weapon-america/;
Aaron Smith & Cristina Alesci, Walmart to Stop Selling AR-15s and Similar Guns, CNN (Aug. 26,
2015), https://money.cnn.com/2015/08/26/news/companies/walmart-ar-15-guns/index.html.
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common semiautomatic rifles.
241
Ammunition magazines, for example, are
not even firearms and, until recently, have never been regulated.
242
Signals of
illegality are weaker still for obscure types of contraband like bullet-button
mechanisms because they are very difficult for most people to even identify
and are generally unregulated.
The Court’s GCA jurisprudence will facilitate innocence claims by sub-
sequent holders of many types of ETB contraband and thus broadly support
discretionary nonenforcement.
243
It would almost certainly govern any new
federal ETBs and could easily inform enforcement decisions surrounding state
ETBs, where enforcement officials might use Staples as a benchmark for ad-
dressing difficult cases.
244
C. The Political and Structural Demands of ETBs Create Repeating
Discernment Issues that Invite Discretionary Nonenforcement and
Encourage Private Defiance
This Section will show how ETBs generate a series of recurring problems
that invite discretionary nonenforcement. These problems are rooted in sev-
eral common aspects of ETB legislation. Some of these are timing or sourcing
filters—where the same item is either legal or illegal depending on when or
where it was made, sold, or possessed. Other problematic filters hinge on
characteristics that require testing to discern or distinctions that conflict with
241
. See discussion supra Section C.2 (detailing California’s flawed method of attempting to iden-
tify and ban assault weapons by highlighting the bullet button ban).
242
. See discussion supra Section C.2.a (expanding on magazine bans); see also D.C. CODE ANN.
§ 7-2506.01(b) (West 2013) (setting forth Washington D.C.’s legal magazine capacity limit of ten
rounds); CONN. GEN. STAT. ANN. § 53-202w(1) (West 2013) (setting forth Connecticut’s legal maga-
zine capacity limit of ten rounds); COLO. REV. STAT. ANN. § 18-12-301 (West 2013) (setting forth
Colorado’s legal magazine capacity limit of fifteen rounds); David B. Kopel, The History of Firearms
Magazines and Magazine Prohibitions, 78 ALB. L. REV. 849 (2015) (illustrating the recent uptick in
magazine restrictions).
243
. See generally discussion of the complexities of discretionary nonenforcement supra Part V.
One question that SAS police and prosecutors might face is whether a gun offense is so core to the
local SAS policy that nonenforcement is proper, even in a combination case that involves a serious
non-gun infraction. See generally supra Part V. Decision-makers might consider it quite relevant that
enforcement of the gun infraction would raise issues similar to those that the Supreme Court addressed
in Staples (even though the gun infraction involved some state regulation and not the federal GCA).
See generally 511 U.S. 600 (1994).
244
. See generally id. Staples was grounded on congressional silence about a mens rea element.
Id. Congress certainly has the power to enact a new federal ETB that dispenses with the mens rea
element. Id.
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the broad themes of federal gun regulation. This Section will discuss how
these things create discernment puzzles that invite discretionary nonenforce-
ment.
Subsection One discusses a current federal ETB that is filled with dis-
cernment puzzles that invite nonenforcement. Subsection Two presents a se-
ries of generic discernment problems that consistently invite nonenforcement
of ETBs and demonstrates a range of similar vulnerabilities surrounding an
ETB imbedded in a proposed federal rule.
1. The First Federal Assault Weapons Ban Creates Timing and
Sourcing Puzzles that Invite Nonenforcement
Section 922(r) of the GCA is the first and most enduring federal assault
weapon restriction.
245
It dates to 1989, when, a demented racist used an im-
ported semiautomatic rifle styled like an AK-47 machine gun to murder chil-
dren playing at the Cleveland Elementary schoolyard in Stockton, Califor-
nia.
246
In response to public outcry, President George H. W. Bush took
executive action to ban the importation of “assault rifles”—a category of “bad
guns” carved out of the general class of semiautomatic rifles.
247
This execu-
tive action was later codified as 18 U.S.C. § 922(r).
248
This legislative attempt
to distinguish between good and bad semiautomatic rifles pressed the bound-
aries of logic and defied functional distinctions.
249
Pre-ban guns remained legal under Section 922(r).
250
Also, banned guns
could still be imported and sold, so long as the “military-style” characteristics
were removed.
251
This required removal of bayonet lugs, removal of flash
suppressors, and replacement of separate pistol grips and shoulder stocks with
a one-piece shoulder stock bored with a thumbhole.
252
245
. 18 U.S.C. § 922(r).
246
. See Gustavo Arellano, Column: A Deranged White Man Aiming His Bullets at Asians: The
Urgent Lesson of 1989 Stockton Massacre, L.A. TIMES (Mar. 20, 2021, 1:17 PM),
https://www.latimes.com/california/story/2021-03-20/stockton-school-shooting-atlanta.
247
. See generally Johnson, Shots Across No Man's Land, supra note 157, at 441–43 (detailing the
bad gun formula).
248
. See 18 U.S.C. § 922(r).
249
. See Johnson, Shots Across No Man's Land, supra note 157, at 441–43 (detailing the dysfunc-
tions within the bad gun formula).
250
. See 18 U.S.C. § 922(r).
251
. Id.; see supra note 162 and accompanying text (commenting on how lawmakers advance ETBs
by focusing on “military-style” characteristics).
252
. JOHNSON ET AL., supra note 48, at 1199.
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Importantly, the executive order and subsequent legislation did not apply
to domestic firearms or domestic firearm parts.
253
It remained lawful to
change imported guns back to their original appearance, but only so long as
one utilized the right number and combination of domestic parts.
254
There
was no requirement in the law and no market practice of marking or recording
the origin of various domestic pieces of metal and wood necessary to change
a gun back to its original style.
255
So today, identifying contraband under
Section 922(r) requires (1) knowing when and in what configuration a partic-
ular gun was imported, (2) determining whether it was modified back to its
original (banned) appearance, and (3) determining the origin of the compo-
nents used in the modification.
256
Except for people who knowingly converted guns from compliant form
back to the original (banned) configuration using foreign parts, it is virtually
impossible for anyone to determine whether their gun is Section 922(r) con-
traband.
257
Virtually every current holder will have strong claims of inno-
cence in any arrest or prosecution for possession or use of Section 922(r) con-
traband.
258
And official non-enforcers of this or similar legislation will have
sound justifications for their decisions.
259
Section 922(r) is further complicated by, and interrelated with, the expired
1994 Assault Weapon Ban (AWB).
260
The 1994 AWB also used military-
style features to define prohibited “bad guns.”
261
- But unlike Section 922(r),
the 1994 AWB applies to domestic manufactured guns.
262
For ten years, sales
253
. See 18 U.S.C. § 922(r).
254
. See id.
255
. See id.
256
. Id.
257
. See David Higginbotham, Understanding Import Laws: 922[R], GUNS.COM (Nov. 3, 2012,
6:00 PM), https://www.guns.com/news/2012/11/03/understanding-import-laws-922r (detailing the
practical challenges in interpreting Section 922(r)).
258
. See id.
259
. See supra notes 184–193 and accompanying text (commenting on difficulties officers face
while attempting to identify contraband under cryptic gun laws).
260
. Public Safety and Recreational Firearms Use Protection Act, 18 U.S.C. §§ 921(a)(30)–(31),
922(v)–(w), 923(i), 924(c)(l) (2000) (repealed 2004) (referred to as the 1994 Assault Weapon Ban
(AWB)).
261
. E.g., JEFFREY A. ROTH & CHRISTOPHER S. KOPER, IMPACTS OF THE 1994 ASSAULT WEAPONS
BAN: 1994-96 1 (U.S. Dept. of Just., Off. of Just. Programs, Nat’l Inst. of Just. 1999),
https://www.ojp.gov/pdffiles1/173405.pdf (characterizing the 1994 AWB as a prohibition of “the
manufacture, sale, and possession of specific makes and models of military-style semiautomatic fire-
arms and other semiautomatics with multiple military-style features”).
262
. See id. at 1–2 (noting the novel domestic nature of the 1994 AWB).
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of new guns in prohibited configurations were banned.
263
When the 1994 ban
expired in 2004, guns in previously banned configurations flooded the market
in response to pent-up demand.
264
Many new manufacturers entered the mar-
ket, and the AR-15 became the best-selling rifle type in the United States for
several years running.
265
This new infusion of guns greatly increased the difficulty of identifying
Section 922(r) contraband and mooted any policy utility that Section 922(r)
might have had.
266
Manufacturers now could make and sell “assault rifles” in
the standard configuration with all of the “military-style” features (e.g., bay-
onet lugs, flash suppressors, and pistol grips) that were banned in 1994.
267
Guns made legal by expiration of the 1994 ban and those still illegal under
Section 922(r) are literally indistinguishable.
268
The enforcement problems that afflict Section 922(r) make it an easy case
for discretionary nonenforcement. Similarly structured statutes will be
263
. CHRISTOPHER S. KOPER, AN UPDATED ASSESSMENT OF THE FEDERAL ASSAULT WEAPONS
BAN: IMPACT ON GUN MARKETS AND GUN VIOLENCE, 1994-2003 1 (U.S. Dept. of Just., Off. of Just.
Programs, Nat’l Inst. of Just. 2004), https://www.ncjrs.gov/pdffiles1/nij/grants/204431.pdf.
264
. See, e.g., Arindrajit Dube et al., Cross-Border Spillover: US. Gun Laws and Violence in Mex-
ico, 107 AM. POL. SCI. REV. 397, 401 (2013) (explaining that there “was approximately a 15% increase
in combined gun sales in AZ, TX, and NM” following the expiration of the AWB in 2004, compared
to a mere 5% rise in sales in California, where state law still banned assault weapons after the AWB
expired).
265
. See JOHNSON ET AL., supra note 48, at 1152; see generally Nicholas J. Johnson, A Second
Amendment Moment: The Constitutional Politics of Gun Control, 71 BROOK. L. REV. 715, 782 (2005).
266
. See Sara Swann, Politifact: The History of the AR-15, and How it Became a Symbol of Amer-
ican Gun Culture, AUSTIN AM. STATESMAN (July 1, 2022, 8:00 AM), https://www.states-
man.com/story/news/politics/politifact/2022/07/01/politifact-history-ar-15-symbol-american-gun-
culture/7776827001/ (illustrating the massive surge in sales of the AR-15 in 2004 following the sunset
of the AWB).
267
. See generally CALIGUNNER, supra note 179 (describing a multitude of compliant options for
gun configurations).
268
. See id. (discussing the impossibility of distinguishing certain compliant firearms from contra-
band with respect to modifications). There are theoretical resolutions to this sort of timing puzzle.
See JAMES B. JACOBS & ZOE FUHR, THE TOUGHEST GUN CONTROL LAW IN THE NATION: THE
UNFULFILLED PROMISE OF NEW YORK’S SAFE ACT 60–61 (2019). Some state ETBs have addressed
the problem by requiring registration of grandfathered guns and prohibiting their transfer within the
state. Id. This is the approach of the New York SAFE Act, whose design anticipates that, at some
point, grandfathered guns (no longer transferable to New York residents) would be removed from the
state. Id. As discussed in Section D.1 below, there appears to have been massive defiance of the
SAFE Act registration requirement encouraged by official commitments of nonenforcement. See dis-
cussion infra Section V.D.1. Another response was the creation of a new “New York compliant”
version of banned semiautomatic rifles that permitted new buyers who did not benefit from grandfa-
thering to own guns that are “functionally equivalent” to banned assault weapons. See JACOBS &
FUHR, supra, at 61.
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similarly vulnerable. The broad lesson is that the framing and structure of
ETBs often demand extra enforcement effort. Nonenforcement might result
from endless combinations of official defiance plus the lack of special effort
necessary to deal with problems inherent in the legislation. Different law en-
forcers will undertake different amounts of ad hoc problem solving. Officials
with wavering commitments to SAS policies might be more inclined to do
extra work. For officials who embrace SAS policies, the difficulties of dis-
cerning ETB violations are an engraved invitation for nonenforcement.
2. Some Common Discernment Issues Presented by ETBs: Magazine
Bans, Statutory Guns that Don’t Shoot, Innocuous Evil
Accoutrements, and an Example from Pending Federal Executive
Action
The invitations for discretionary nonenforcement that surround Section
922(r) and the California legislation discussed above are not unique.
269
In-
deed, the invitations for discretionary nonenforcement seem endemic to
ETBs.
270
At least three factors fuel the problem.
271
First, gun regulation is
highly politicized.
272
Passing gun laws requires compromises that undercut
efficacy.
273
Second, gun legislation attempts to regulate items with concrete, physical
characteristics that often are not compatible with the narratives that fuel ETB
legislation.
274
For example, the attempt to carve out a subcategory of bad
269
. See generally Amanda Milkovits, A ‘2A Sanctuary Town’ in Rhode Island Declares it Won’t
Comply With New Gun Law, BOSTON GLOBE (July 20, 2022, 9:59 AM), https://www.bos-
tonglobe.com/2022/07/20/metro/2a-sanctuary-town-rhode-island-declares-it-wont-comply-with-
new-gun-law/ (demonstrating local reluctance to enforce a “high-capacity” magazine ban in Burrill-
ville, Rhode Island).
270
. See id.
271
. See, e.g., JACOBS & FUHR, supra note 268, at 61.
272
. See, e.g., JOHNSON ET AL., supra note 48, at 783 (describing the political fallout from the 1994
AWB); JACOBS & FUHR, supra note 268, at 61 (portraying the “intense opposition” sparked by New
York gun laws).
273
. JACOBS & FUHR, supra note 268, at 61. See, e.g., ROTH & KOPER, supra note 261, at 1–2
(explaining how the 1994 AWB had to “balance . . . competing policy goals” after being “[d]ebated
in a politically charged environment”); Meenakshi Balakrishna & Kenneth C. Wilbur, Do Firearm
Markets Comply with Firearm Restrictions? How the Massachusetts Assault Weapons Ban Enforce-
ment Notice Changed Registered Firearm Sales, 19 J. EMPIRICAL LEGAL STUD. 60, 66 (2022) (dis-
cussing the “political compromise” made in the definition of “semiautomatic assault weapons” chosen
for the 1994 AWB).
274
. See Kelly, infra note 284, at 347, 348 (detailing the characteristics of banned configurations).
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47
semiautomatic guns (based on their military-style appearance) from the gen-
eral class of semiautomatics rests on distinctions that defy the physical char-
acteristics and function of semiautomatic firearms as a class.
275
However,
anti-technical distinctions that contradict the actual functioning of semiauto-
matics are a core component to the ETB form.
276
Finally, new gun laws are not drafted on a blank slate.
277
They supple-
ment a body of existing legislative and regulatory determinations.
278
This
backdrop means that new ETB legislation may be incompatible with rules that
are already in place and that will invite different grades of discretionary non-
enforcement.
279
Subparts a, b, c, and d below provide more detailed examples and analysis
of these problems and suggest their potential impact on the spectrum of dis-
cretionary nonenforcement decisions.
a. Magazine Bans and Discernment
Ammunition magazine bans are a common component of ETB legisla-
tion.
280
This Subsection will show how magazine bans present a variety of
discernment problems that invite discretionary nonenforcement and private
defiance.
Ammunition magazines for semiautomatic firearms are spring-loaded
boxes that hold and feed successive rounds of ammunition into the chamber
of the gun.
281
Magazine capacity of semiautomatic firearms has been the fo-
cus of both federal and state assault weapon laws and a variety of proposed
275
. See, e.g., Wallace, supra note 162, at 197–98 (clarifying the physical characteristics and func-
tion of semiautomatic firearms versus those of machine guns).
276
. See id. (describing the conflation of semiautomatics and machine guns by referring to them as
“bullet-hoses” while disregarding their actual physical functionality and relative capabilities).
277
. See generally JOHNSON ET AL., supra note 48, at 667–738. The primary federal firearms law,
the Gun Control Act of 1968, has been amended numerous times by legislation that builds on its basic
framework. See id.
278
. See supra note 169 and accompanying text.
279
. See, e.g., JACOBS & FUHR, supra note 268, at 60 (exemplifying the enforcement inconsisten-
cies caused by the changing policy backdrop of gun regulation, since in New York under the SAFE
Act, new owners of guns with certain military-style features may be subject to a prison term, whereas
existing registered owners are legal gun possessors).
280
. E.g., CAL. PENAL CODE § 32310 (West 2016) (banning high-capacity magazines in California).
281
. See NICHOLAS J. JOHNSON ET AL., Chapter 15: In-Depth Explanation of Firearms and Ammu-
nition, in FIREARMS LAW AND THE SECOND AMENDMENT: REGULATION, RIGHTS, AND POLICY 401,
411 (2012), http://firearmsregulation.com/www/FRRP_2012_Ch15.pdf (providing images of detach-
able box magazines).
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restrictions.
282
The now expired 1994 AWB prospectively banned magazines
with a capacity of more than ten rounds.
283
Existing magazines were grand-
fathered and remained legal to possess and sell.
284
Several states also have banned ammunition magazines with a capacity
of more than ten rounds, along with varying provisions for grandfathering or
reducing the capacity of existing magazines.
285
Reported compliance with
these bans has been very low.
286
For example, reporting suggests that zero
magazines have been surrendered in response to New Jersey’s 2018 ban.
287
As the contraband created by private defiance transitions to subsequent
holders, a spectrum of enforcement issues will challenge the viability of mag-
azine bans.
288
Identification of contraband magazines poses an array of prob-
lems that give subsequent holders stronger claims of innocence than were sus-
tained in Staples and thus invite nonenforcement by defiant public officials.
289
282
. See e.g., JACOBS & FUHR, supra note 268, at 69 (describing the history of magazine bans).
283
. See ROTH & KOPER, supra note 261, at 1 (explaining that the AWB outlawed most “large
capacity” ammunition magazines “capable of holding more than ten rounds of ammunition”).
284
. See generally Meagan Kelly, How Can You Ban What Doesn’t Exist? Redefining the “Assault
Weapon,” 12 DREXEL L. REV. 331 (2020) (discussing the 1994 Assault Weapon Ban).
285
. JOHNSON ET AL., supra note 48, at 78. By 2021, nine states plus the District of Columbia had
placed restrictions on ammunition magazines. See Magazine Capacity Laws by State 2022, WORLD
POPULATION REV., https://worldpopulationreview.com/state-rankings/magazine-capacity-laws-by-
state (last visited Sep. 14, 2022).
286
. See, e.g., Jacob Sullum, Gun Owners Don't Seem Eager to Comply With New Jersey's New
Magazine Ban, REASON (Dec. 20, 2018, 3:05 PM), https://reason.com/blog/2018/12/20/new-jerseys-
gun-owners-do-not-seem-eager.
287
. Id. In December of 2018, New Jersey banned all ammunition magazines with a capacity of
more than ten rounds. Id. Current owners were required to either “surrender them to police, render
them inoperable, modify them so they cannot hold more than ten rounds, or sell them to authorized
owners.” Id. Estimates extrapolated from sales records of common firearms that come with higher
capacity magazines put the number owned prior to the ban at around two million. Id. Reporting
suggests that zero magazines have been surrendered. Id.
288
. Id.; see also Christopher S. Koper & Jeffrey A. Roth, The Impact of the 1994 Federal Assault
Weapons Ban on Gun Violence Outcomes: An Assessment of Multiple Outcome Measures and Some
Lessons for Policy Evaluation, 17 J. QUANTITATIVE CRIMINOLOGY 33, 67 (2001). After the expiration
of the 1994 AWB, a study mandated by the expired legislation concluded that the 1994 ban was fo-
cused in large part on irrelevant variables that made the banned guns look like military guns (e.g.,
bayonet lugs and flash suppressors). Id. The study pointed out that it was in fact plausible to distin-
guish between different types of semiautomatics by focusing on the ability to accept a detachable box
magazine. Id. at 35; see also Daniel Webster et al., Evidence Concerning the Regulation of Firearms
Design, Sale and Carrying on Fatal Mass Shootings in the United States, 19 CRIMINOLOGY & PUB.
POL’Y 171, 188 (2020) (finding that bans on large capacity magazines are associated with reductions
in fatal mass shootings).
289
. See generally Staples v. United States, 511 U.S. 600 (1994) (holding that knowledge of fully
automatic capacity is required to obtain a conviction for possession of a machine gun).
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Recall that the defendant in Staples knew that he was in possession of a
gun and actually had fired it.
290
By comparison, subsequent holders of con-
traband magazines will have plausible claims that they did not even know the
object was even gun related.
291
Many students in my Firearms Law seminars
over the years have failed to identify images of ammunition feeding devices.
Many readers of this article will be unable to independently identify the am-
munition clip for the M1 Garand battle rifle as gun related.
292
And that is only
the first obstacle.
Like the gun in Staples, whether a magazine is contraband will be a func-
tion of its internal configuration.
293
Magazine capacity can be reduced by in-
ternal modifications.
294
Magazine bans typically allow noncompliant maga-
zines to be converted to reduced capacity.
295
Some magazines are marked with the number of rounds they hold.
296
Many are not.
297
Even for those that are marked, one cannot tell whether they
have been internally modified to accept fewer rounds without actually loading
them. Many people do not know how to do this—-either how to determine
the proper ammunition or physically how to load the magazine. Many such
claims of ignorance will be difficult to disprove and easily credited by offi-
cials inclined toward nonenforcement.
298
290
. Id. at 603.
291
. See id. at 609.
292
. See 10 Pack M1 Garand Stripper Clips 8 Shot Parkerized Steel Phosphate AEC GI Contractor
$2.90 per Clip M-1 3006 .30-06 or 308 .308, GUNS AMERICA, https://www.gunsamerica.com/
934839184/10-Pack-M1-Garand-Stripper-Clips-8-Shot-Parkerized-Steel-Phosphate-AEC-GI-
Contractor-2-90-per-Clip-M-1-3006-30-06-or-308-30.htm (last visited Aug. 28, 2022) (depicting the
feeding device for the Garand as a “clip” loaded through the top of the receiver as distinguished from
a box “magazine” that loads into the bottom of the receiver).
293
. See, e.g., Staples, 511 U.S. at 603 (describing internal configurations of M-16s versus AR-
15s).
294
. See Open Letter from NYPD to Gun License and Permit Holders (May 2013),
https://www.nyc.gov/html/nypd/downloads/pdf/permits/ny_safe_act_letter_re_lcafd_2013_05
_v9.pdf (describing internal modifications to a high-capacity magazine by a gunsmith).
295
. See id. For many guns, especially handguns, the body of the magazine must maintain the same
outside dimensions in order to fit in the gun. Id. However, there may be continuing disputes about
the process of conversion—e.g., focusing on whether it is sufficiently permanent. Id. New York City,
for example, accepts certification from a gunsmith that a high-capacity magazine has been perma-
nently modified to accept only ten rounds in compliance with the New York Safe Act. Id.
296
. See Mike V., How Many Rounds Can a Handgun Hold?, EVERYDAY CARRY CONCEALED,
https://everydaycarryconcealed.com/how-many-rounds-can-a-handgun-hold/ (last visited Sept. 9,
2022) (depicting a magazine labeled with the number of rounds it holds).
297
. See id. (depicting an unmarked magazine).
298
. See Sullum, supra note 286 (noting that after New Jersey’s magazine ban some people would
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In some cases, even matching magazines with the right gun will be diffi-
cult—for example, where the contraband magazine is found separate from the
gun.
299
For unmarked magazines, one must discern what gun they fit and what
ammunition they hold.
300
Many magazines will actually accept various types
of ammunition.
301
So, matching the gun, the magazine, and the ammunition
presents multiple opportunities for subsequent holders to claim innocence, in-
viting discretionary nonenforcement.
302
The New York State Sheriffs’ Association filed an amicus brief that pre-
sented a version of this problem in litigation challenging the New York SAFE
Act.
303
The brief explained that the capacity of tubular magazines “varies with
the length of the cartridges used.”
304
The Sheriffs argued, “If an officer en-
counters one of these firearms, is [he] to seize the firearm and arrest the indi-
vidual . . . ? What if the firearm is unloaded, or if the individual is unaware it
can hold eleven rounds of a different type of ammunition?”
305
Another issue endemic to magazine bans is that many magazine bodies
are easily repurposed to a different caliber.
306
The AR-15 rifle presents a good
be unaware they were breaking the law, and police officers only planned on filing charges against
people who were also guilty of other crimes).
299
. See Matthias Gafni, For One Week, High-Capacity Ammunition Magazines Were Legal in Cal-
ifornia. Hundreds of Thousands May Have Been Sold, S.F. CHRON. (Apr. 11, 2019, 12:56 PM),
https://www.sfchronicle.com/bayarea/article/For-one-week-high-capacity-gun-magazines-were-
13757973.php (“Magazines don’t carry serial numbers, so tracking them is nearly impossible.”).
Many firearms are sold with extra magazines. See Jay Grazio, How Many Magazines Should You
Have?, SHOOTING ILLUSTRATED (Apr. 4, 2020), https://www.shootingillustrated.com/content/how-
many-magazines-should-you-have/ (noting that firearms often come with two magazines). Also, it is
common for people to purchase extra magazines. See id. Since guns will only hold one magazine at
a time, there is a good chance that subsequent holders will encounter loose magazines separate from
the gun. See id.
300
. See Gafni, supra note 299.
301
. See DemolitionRanch, Firing the Wrong Caliber, YOUTUBE (Dec. 5, 2013), https://www.
youtube.com/watch?v=lkJuu7rwNEc. The gun generally will not, but sometimes might, function with
mismatched ammunition. Id.; see also What Happens When You Fire the Wrong Caliber,
AMMUNITION DEPOT, https://www.ammunitiondepot.com/blog/what-happens-when-you-fire-the-
wrong-caliber (last visited Sept. 10, 2022).
302
. See JACOBS & FUHR, supra note 268, at 77 (explaining the limitations of policies requiring
police to enforce magazine restrictions).
303
. Amici Curiae Brief of N.Y. State Sheriffs’ Ass’n et al., N.Y. State Rifle and Pistol Ass’n v.
Cuomo, No. 13-cv-00291, 2013 WL 10767751 (W.D.N.Y. May 29, 2013).
304
. Id.
305
. Id.; see also JACOBS & FUHR, supra note 268, at 74.
306
. Matthew Larosiere, Losing Count: The Empty Case For “High-Capacity” Magazine Re-
strictions, 3 CATO INST. CTR. FOR CONST. STUD. LEGAL POL’Y BULL. 1, 4 (2018),
https://www.cato.org/sites/cato.org/files/pubs/pdf/legal-policy-bulletin-3-updated.pdf.
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example.
307
It can be adapted to fire different calibers of ammunition by using
different upper receivers.
308
One version of this modification allows owners
to use larger caliber (i.e., larger diameter) ammunition than the standard .223
caliber round.
309
A good example is the .450 Bushmaster version of the AR-15.
310
The
.450 Bushmaster round is comparatively large, with a diameter of 450 hun-
dredths of an inch versus the 223 hundredths of an inch for the standard AR-
15 round.
311
Because the .450 Bushmaster cartridge is so large, standard AR-
15 magazines will only hold ten or fewer rounds of .450 Bushmaster ammu-
nition.
312
So, is the magazine that Uncle Bert’s heirs find in a box at the lake
house a legal, ten-round magazine for the .450 Bushmaster, or a piece of high-
capacity contraband?
313
307
. Id.
308
. See What Are the Different Types of AR15 Uppers?, E2 ARMORY (Nov. 12, 2019), https://e2ar-
mory.com/types-of-ar-15-uppers.
309
. See Larosiere, supra note 306. Caliber is a measure of the diameter of the bullet. Spider
Concealment, What Do the Different Gun Calibers Mean?, THERMOLD MAG. (June 11, 2019),
https://thermoldmagazines.com/blog/what-do-the-different-gun-calibers-mean/. Bullets of the same
caliber or diameter may still be different lengths, and therefore have different weights. Id. Also, the
same bullet may be joined with many different sizes of cases (the brass vessels that hold both the
powder and the bullet). James Willmus, Can Rifles Shoot Different Calibers of Bullets?, BACKFIRE
(July 8, 2021), https://backfire.tv/can-rifles-shoot-different-calibers-of-bullets/. The energy of the
fired bullet is a function of its diameter, shape, weight, and the amount of propellent in the case. What
is Muzzle Velocity? – A Simple Explanation, AIMING EXPERT, https://aimingexpert.com/what-is-muz-
zle-velocity-a-simple-explanation/ (last visited Sept. 10, 2022). Thus, caliber designations are highly
incomplete measurements. See id. Caliber is technically measured in inches. Spider Concealment,
supra. Metric designations like 9mm equate to particular calibers. Id. Proposals to ban 9mm firearms,
such as the proposal President Biden has made, raise a host of practical framing and enforcement
issues. See Biden Pushes 9mm Handgun Ban, Harris Wants to Ban Common Semi-Autos, NRA ILA
(June 2, 2022), https://www.nraila.org/articles/20220602/biden-pushes-9mm-handgun-ban-harris-
wants-to-ban-common-semi-autos. President Biden probably intends to ban pistols, but the 9mm car-
tridge is also a revolver round. See George Harris, 9mm Revolver Ammo: Avoiding Bullet Jump &
Other Issues, NRA SHOOTING ILLUSTRATED (Oct. 23, 2019), https://www.shootingillus-
trated.com/content/9mm-revolver-ammo-avoiding-bullet-jump-other-issues/. Moreover, 9mm is
roughly .30 caliber and is the most popular kind of hunting round. See Philip Massaro, Top 5 All-
Around North American Big-Game Cartridges, NRA AM. HUNTER (Nov. 8, 2021), https://www.amer-
icanhunter.org/content/top-5-all-around-north-american-big-game-cartridges/.
310
. See Patrick Sweeney, .450 Bushmaster: Why to Choose the Big, Big-Bore, GUN DIG. (May 7,
2020), https://gundigest.com/gear-ammo/ammunition/the-big-big-bore-450-bushmaster.
311
. Id.
312
. See id. For a discussion of Bushmaster Magazine conversions and aftermarket dedicated 450
Bushmaster Magazines, see James Miller, Stockpile Reviews: 5 Best 450 Bushmaster Magazines
[2022]The Best 450 Bushmaster Magazines for Those Big Bore Rounds, MINUTEMAN REV. (Aug. 3,
2022), https://www.minutemanreview.com/best-450-bushmaster-magazines/.
313
. See id. To function with the .450 Bushmaster, the standard AR magazine is often modified
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The complications that afflict practical enforcement of magazine bans
help underscore how discretionary nonenforcement might unfold across a
spectrum of scenarios.
314
The strength or weakness of a magazine infraction
will vary based on the circumstances.
315
Those circumstances, in combination
with other factors, will fuel a range of nonenforcement decisions.
316
For ex-
ample, simple possession of a contraband magazine that is detached and iso-
lated from the gun, where the holder claims ignorance to the magazine being
banned, seems like an easy case of nonenforcement—even for an official with
only marginal commitment to a local SAS policy.
317
That same official might
well make a different decision in a combination case involving a gun loaded
with a contraband magazine in the possession of someone arrested for a sep-
arate, even minor infraction.
318
Another enforcement official with a stronger
with a replacement follower (the piece that sits atop the magazine spring, cradles the bottom cartridge,
and pushes the ammunition continuously upward through the magazine into the gun’s chamber). Id.
The follower is not marked in any way. Frequently Asked Questions About Ghost Guns, CTR. FOR
AM. PROGRESS (Apr. 2, 2021), https://www.americanprogress.org/article/frequently-asked-questions-
ghost-guns/ (explaining only “fully finished firearms, frames, and receivers” have a serial number).
The only way to know is to attempt to fire it, but this actually complicates the answer. See generally
DemolitionRanch, supra note 305 (showing consequences of firing the wrong ammunition). The re-
placement follower should mean that the .450 Bushmaster magazine will not function reliably with
the .223 ammunition, and vice versa. See generally id. (showing guns with wrong caliber bullets
misfiring). But functionality is dynamic. Id. Many magazines will feed one round of the wrong
ammunition. Id. But that is not the design. Id. So, what is the test for whether the .450 magazine is
also a functional piece of .223 contraband? Does it matter whether the magazines are accompanied
by guns in both calibers? See United States v. Thompson/Ctr. Arms Co., 504 U.S. 505, 507 (1992)
(dealing with the similar issue of whether it is illegal to package together legal gun parts which have
potential to be constructed into an illegal firearm). In Thompson, the Court concluded that an array of
parts, all of which had legal uses, made possession lawful even though some combinations of those
parts might be illegal. Id.
314
. See JACOBS & FUHR, supra note 268, at 77; see also Fields, supra note 1, at 496–97 (discussing
how sheriffs and prosecutors might use “discretion to decline to arrest or prosecute in the name of the
Constitution”).
315
. See, e.g., Adam Winkler, Op-Ed: Why Gavin Newsom’s Gun Law Won’t Help, L.A. TIMES
(Apr. 8, 2016, 5:00 AM), https://www.latimes.com/opinion/op-ed/la-oe-0408-winkler-gavin-new-
som-gun-initiative-20160408-story.html (arguing magazine bans will only be enforced when an illegal
magazine is found on an arrestee).
316
. See id. (arguing without gunowner compliance gun laws will go unenforced).
317
. See, e.g., Martin Kaste, When Sheriffs Won’t Enforce the Law, NPR (Feb. 21, 2019, 4:16 PM),
https://www.npr.org/2019/02/21/696400737/when-sheriffs-wont-enforce-the-law (recounting a mod-
erate Washington sheriff refusing to enforce a minimum-age law against a twenty-year-old farmer
with a semi-automatic rifle on his tractor).
318
. See Winkler, supra note 315 (arguing officers will enforce magazine bans only when an illegal
magazine is found on a person arrested for another offense).
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commitment to the SAS policy might react differently.
319
And both decision
makers might behave differently when the magazine infraction occurs in com-
bination with more serious crimes.
320
b. Contraband Guns That Don’t Shoot . . . And Don’t Even Look Like
Guns
Some prompts for discretionary nonenforcement stem from the fact that
the existing federal regulatory definition of firearms captures things that can-
not be readily identified as guns.
321
This can make ETB contraband difficult
to identify, and that problem invites discretionary nonenforcement.
322
The
AR-15 rifle presents a prime example.
323
The AR-15 consists of two basic
parts—the upper receiver and the lower receiver.
324
Most people would rec-
ognize the upper receiver with the attached barrel as part of a gun.
325
But that
part is not the regulated gun.
326
It is freely transferrable, has no serial number,
319
. See, e.g., Kaste, supra note 317 (discussing sheriffs with differing levels of commitment to
nonenforcement). Immigration and drug law nonenforcement provide models for appreciating con-
flicts between police and prosecutors, between policy makers and frontline enforcement officers, along
with conflicts within each category. See, e.g., Christopher N. Lasch et al., Understanding “Sanctuary
Cities”, 59 B.C. L. REV. 1703, 1751–52 (2018) (describing conflict between the Santa Cruz City
Council and the Santa Cruz Police Department over providing assistance to federal immigration offi-
cials); W. Kerrel Murray, Populist Prosecutorial Nullification, 96 N.Y.U. L. REV. 173, 177 (2021)
(discussing police opposition to Suffolk County Massachusetts prosecutor Rachel Rollins’s platform
of nonenforcement of minor drug violations and other petty crimes); Dewan, supra note 136 (describ-
ing opposition by Baltimore police to chief prosecutor Marilyn Mosby’s marijuana nonenforcement
policies); Andrew Boryga, ‘Not Going to Do This Anymore’: Fed-Up Prosecutor is Done With BS
Traffic Stops, DAILY BEAST (Sept. 8, 2021, 6:22 PM), https://www.thedailybeast.com/fed-up-ramsay-
county-prosecutor-john-choi-is-done-with-minor-traffic-stops-after-philando-castile-
death?source=articles&via=rss (discussing Ramsay County’s decision not to prosecute felonies stem-
ming from traffic stops for minor violations).
320
. See Sullum, supra note 286.
321
. See 18 U.S.C. § 921(a)(3) (2020) (including mufflers, silencers, and “any destructive device”
in the definition of firearm).
322
. See Jake Bleiberg & Stefanie Dazio, Design of AR-15 Could Derail Charges Tied to Popular
Rifle, AP NEWS (Jan. 13, 2020), https://apnews.com/article/nv-state-wire-usnews-ap-top-news-ca-
state-wire-oh-state-wire-396bbedbf4963a28bda99e7793ee6366 (describing judges dismissing gun
charges if defendants only possessed a lower receiver, not a completed gun).
323
. Id.
324
. Id.
325
. See AR-15 Uppers, PALMETTO STATE ARMORY, https://palmettostatearmory.com/ar-15/bar-
reled-upper-assemblies.html (last visited Sept. 11, 2022) (displaying images of barreled upper receiv-
ers).
326
. Bleiberg & Dazio, supra note 322.
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and there is no system for controlling possession of it.
327
The part of the AR-15 that is considered the “gun” for regulatory purposes
is the lower receiver, which houses the trigger group and accepts the ammu-
nition magazine.
328
Absent the shoulder stock, the pistol grip, and the trigger
group (i.e., the externally visible trigger as well as the internal hammer, sears
and springs, and selector), many people will not recognize the AR-15 lower
receiver as a gun part.
329
Many people, especially subsequent holders, in pos-
session of contraband lower receivers might convincingly claim ignorance of
possessing a gun, and those claims will support an array of nonenforcement
decisions.
330
The regulated receiver—the only thing federal law considers “the gun”—
is even more obscure for other guns subject to ETBs.
331
The FN-FAL semi-
automatic rifle is a good example.
332
For this gun, which is also on most as-
sault weapons ban lists, the upper receiver is deemed “the gun.”
333
If one
studies the FN-FAL upper receiver, there is evidently a place for a barrel.
334
327
. Id.
328
. Id. For images of lower receivers in various stages of completion, see AR-15 Lower Receivers,
PALMETTO STATE ARMORY, https://palmettostatearmory.com/ar-15/lowers.html, (last visited Sept.
11, 2022).
329
. See generally Bleiberg & Dazio, supra note 322 (showing the component parts of an AR-15).
330
. See id. (discussing defense attorneys who argue defendants who solely possess the lower re-
ceiver do not possess a gun). With the stripped lower receiver, the AR-15 is not difficult to assemble
for someone who can follow directions and has decent dexterity. See How to Build an AR-15 Rifle,
MIDWAY USA, https://www.midwayusa.com/how-to-guides/how-to-build-ar-15-rifle (last visited
Sept. 11, 2022). Many enthusiasts have purchased stripped lowers and built guns from them. Id. This
is entirely legal under federal law and most state laws. See 18 U.S.C. § 922 (2020); 26 U.S.C. § 5822
(2020); 27 C.F.R. §§ 478.39, 479.62, 479.105 (2020); see, e.g., CAL. PENAL CODE §§ 31900–32100
(West 2012) (allowing one to build an AR-15 meeting certain requirements). One appeal of the
stripped lower is that someone can purchase the regulated “gun” at a significant discount compared to
the fully functioning gun. Compare AR-15 Lower Receivers, supra note 328, with Complete AR-15
Rifles, PALMETTO STATE ARMORY, https://palmettostatearmory.com/ar-15/ar15-guns/rifles.html (last
visited Sept. 11, 2022). A fully built AR-15 might cost around $650 in a normal market. Complete
AR-15 Rifles, supra. For many years, a standard quality stripped lower receiver, “the regulated gun,”
has sold for under $100. AR-15 Lower Receivers, supra note 328.
331
. Compare AR-15 Lower Receivers, supra note 328, with DSA FAL SA58 Type 3 Carry Handle
Cut Semi Auto Receiver–7.62x51mm, DS ARMS, https://www.dsarms.com/p-16472-dsa-fal-sa58-
type-3-carry-handle-cut-semi-auto-receiver-762x51mm.aspx (last visited Sept. 11, 2022).
332
. DSA FAL SA58 Type 3 Carry Handle Cut Semi Auto Receiver–7.62x51mm, supra note 331.
333
. BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES, ATF NATIONAL FIREARMS
ACT HANDBOOK 10 (2009), https://www.atf.gov/firearms/docs/guide/atf-national-firearms-act-hand-
book-atf-p-53208/download.
334
. See DSA FAL SA58 Type 3 Carry Handle Cut Semi Auto Receiver–7.62x51mm, supra note
331.
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However, the stripped FN-FAL upper receiver is many difficult assembly
steps away from being a discernable firearm.
335
Many gun owners purchase stripped receivers in preparation for building
a fully functional gun.
336
From a regulatory perspective, the stripped receiver
is the same as a fully functional gun.
337
But nothing on the face of things will
alert a subsequent holder of stripped AR-15, FN-FAL, or many other receivers
that she possesses a firearm, let alone a contraband firearm.
338
And that fact
might be dispositive in contested nonenforcement decisions.
339
c. Innocuous But Evil Accoutrements: The Carolyn McCarthy
Problem
There are many examples of ETBs that define “contraband” by reference
to innocuous but politically laden accoutrements.
340
This is an outgrowth of
the “bad gun” legislative form that focuses on “scary looking” or military-
style guns but allows continued possession of functionally identical ones that
are less “scary looking.”
341
The ultimate result is a set of rules that defy intu-
itions about dangerousness and breach the boundaries articulated in Staples.
342
335
. See Christopher Mace, FAL Build: The Next Step for AR Builders?, GUNSAMERICA DIG. (Sep.
20, 2020), https://www.gunsamerica.com/digest/fal-build-the-next-step-for-ar-builders/.
336
. See Suzanne Wiley, What You Need to Build an AR-15, THE SHOOTER’S LOG (Sep. 10, 2013),
https://blog.cheaperthandirt.com/build-ar-15-starting-stripped-receiver/ (describing the methods gun
owners use to build fully functional guns).
337
. See Bleiberg & Dazio, supra note 322.
338
. See id. These problems are an outgrowth of the fact that guns are relatively simple machines
and are assembled from many generic metal or plastic parts. See Ryan Cleckner, How to Build a Glock
at Home [2022] Step by Step Guide, GUN UNIV. (Mar. 24, 2022), https://gununiversity.com/build-
glock-home-no-serial-number-no-registration/. Regulation of springs, detents, metal tubes, etc. is
simply not practical. See Amy Swearer, Breaking Down Biden’s Proposed “Ghost Gun” Rules,
HERITAGE FOUND. (May 27, 2021), https://www.heritage.org/firearms/commentary/breaking-down-
bidens-proposed-ghostgun-rules (“Federal law doesn’t regulate the manufacture and sale of every fire-
arm part.”). So, ATF has made a series of decisions about what parts of the gun must be stamped with
serial numbers to facilitate regulation. See BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND
EXPLOSIVES, supra note 333, at 46 (requiring serial numbers for “frames or receivers that are not
components of complete firearms”).
339
. See Dewan, supra note 136 (exemplifying a combination case example causing disagreements
about nonenforcement within, and between, categories of non-enforcers (e.g., police and prosecutors)
regarding drug enforcement).
340
. See Johnson, Shots Across No Man's Land, supra note 157, at 441–43.
341
. Id.
342
. See Staples v. United States, 511 U.S. 600, 608–16 (1994) (holding guns do not fall under
the category of dangerous devices that dispense of the mens rea requirement).
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This creates broad opportunities for discretionary nonenforcement.
343
Even legislative sponsors of these ETBs have sometimes been unable to
navigate or explain the distinctions that define contraband.
344
A good example
is Carolyn McCarthy’s befuddlement over why legislation that she sponsored
proposed to ban guns with “barrel shrouds.”
345
In a national news interview,
McCarthy could neither describe the barrel shroud, nor explain why it should
be banned.
346
The barrel shroud is not intuitively dangerous.
347
Indeed, the
rationale for banning it remains elusive, except that some might say it adds an
aggressive look to the gun.
348
Other examples of the sort of discernment problem that befuddled Car-
olyn McCarthy plagued the 1994 AWB (now expired but still championed by
its sponsor President, then-Senator, Joseph R. Biden).
349
The 1994 ban was a
classic ETB.
350
It identified contraband by the number and configuration of
prohibited components, including flash suppressors and bayonet lugs.
351
The flash suppressor is a vented cylinder that fits onto the muzzle of the
gun.
352
It suppresses the brief flash of burning gunpowder at the muzzle when
343
. See Meghan Keneally, Understanding the 1994 Assault Weapons Ban and Why It Ended, ABC
NEWS (Sept. 13, 2019, 2:21 AM), https://abcnews.go.com/US/understanding-1994-assault-weapons-
banended/story?id=65546858 (articulating how technicalities in the 1994 Assault Weapons Ban cre-
ated loopholes for using guns that were technically legal, but identical to those banned by the act).
344
. Jeff Cook, Carolyn McCarthy, YOUTUBE (Apr. 19, 2007), https://www.youtube.com/watch
?v=ospNRk2uM3U (showing Carolyn McCarthy unable to explain what a barrel shroud is after she
introduced legislation to ban them).
345
. Id.
346
. Id.
347
. What’s the Deal With Barrel Shrouds?, FIREARMS HIST., TECH. & DEV. (Dec. 16, 2014),
https://firearmshistory.blogspot.com/2014/12/whats-deal-with-barrel-shrouds.html (explaining the
function and design of barrel shrouds).
348
. See id.
349
. See German Lopez, The Controversial 1994 Crime Law that Joe Biden Helped Write, Ex-
plained, VOX (Sept. 29, 2020, 10:25 AM), https://www.vox.com/policy-and-politics/2019/6/20/
18677998/joe-biden-1994-crime-bill-lawmass-incarceration; see also Kelly, supra note 284, at 349
(1994 AWB defined guns by cosmetic standard, so manufactures could just rebrand a gun to get around
regulations).
350
. See supra Section V.C.1. Compare Public Safety and Recreational Firearms Use Protection
Act, H.R. 4296, 103d Cong. § 2 (1994) (making it unlawful “to manufacture, transfer, or possess a
semiautomatic assault weapon”), with 18 U.S.C. § 922(r) (2018) (making it unlawful only to assemble
particular types of semiautomatic weapons).
351
. See H.R. 4296, 103d Cong. (1994) (detailing which guns and gun components would be
deemed illegal).
352
. How Does a Flash Hider Work?, SILENCER SHOP (May 4, 2021), https://www.silencer-
shop.com/blog/post/how-does-a-flash-hider-work (detailing the purpose and inner workings of a flash
hider).
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the gun is fired.
353
This muzzle flash can impede the shooter’s vision, and the
flash suppressor prevents that.
354
While the 1994 AWB banned guns with
flash suppressors, it allowed guns with other visually and functionally similar
muzzle devices.
355
For example, muzzle brakes remained legal.
356
Muzzle
brakes look like flash suppressors, except they are intended to reduce recoil
rather than muzzle flash.
357
The 1994 AWB also allowed continued use of
unvented—and thus nonfunctional—flash suppressors.
358
Most subsequent
holders would be unable to navigate these byzantine distinctions, and that un-
certainty is fuel for discretionary nonenforcement.
359
The 1994 AWB also prohibited guns with bayonet lugs.
360
Visually, bay-
onet lugs are non-descript pieces of metal attached to the gun’s barrel.
361
They
allow a specially configured blade to be secured onto the barrel.
362
The dif-
ference between a smooth gun barrel and one with a bayonet lug might be
noticeable to the uninitiated.
363
But the difference would likely prompt the
question, “What’s that?” This common reaction is a foundation for compel-
ling claims of innocence that would invite discretionary nonenforcement.
364
353
. Id.
354
. Id.
355
. See H.R. 4296, 103d Cong. (1994).
356
. Id.
357
. See Guy J. Sagi, Muzzle Brake VS Flash Hider, WIDENER’S GUNS, AMMO & SHOOTING BLOG
(Apr. 27, 2020), https://www.wideners.com/blog/muzzle-brake-vs-flash-hider/; Brandon Maddox,
Muzzle Brake vs. Flash Hider: Do You Know the Difference?, SILENCER CENT. (Aug. 28, 2019),
https://www.silencercentral.com/blog/muzzle-brake-vs-flash-hider-do-you-know-the-difference/.
358
. See H.R. 4296, 103d Cong. (1994).
359
. See Keneally, Understanding the 1994 Assault Weapons Ban and Why It Ended, supra note
343.
360
. See H.R. 4296, 103d Cong. (1994).
361
. Bayonet Lug, ACAD. DICTIONARIES & ENCYCLOPEDIAS, https://en-academic.com/dic.nsf/en-
wiki/1705520 (last visited Sept. 11, 2022).
362
. Id. There are many different types of bayonet lugs designed for different rifles. See, e.g.,
Israeli K98 Bayonet Lug, Long *Very Good*, APEX GUN PARTS, https://www.apexgunparts.com/is-
raeli-k98-bayonet-lug-long-vg.html (last visited Sept. 11, 2022). A general internet search will gen-
erate multiple images of items that are difficult to identify as being gun related. See id. For a video
showing the bayonet lug and its removal for compliance with the New York Safe Act, see Bush-
craft412, NY Safe Act Compliance—Removing the AR15 Bayonet Lug, YOUTUBE (Nov. 9, 2013),
https://www.youtube.com/watch?v=sotEXOsx5wo.
363
. See Bushcraft412, supra note 362; IntoWeapons, AK-47 Bayonet Lug Install: Zastava N-PAP
Rifle, YOUTUBE (Apr. 2, 2013), https://www.youtube.com/watch?v=v0WpXR89giw (displaying the
installation of a bayonet lug).
364
. See Staples v. United States, 511 U.S. 600, 608–16 (1994); Keneally, Understanding the 1994
Assault Weapons Ban and Why It Ended, supra note 343.
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A coherent policy surrounding ETBs would abandon anti-technical, po-
litical distinctions like “military-style guns.”
365
A coherent policy based on
substantive criteria would focus on functional differences between gun types;
for example, by treating all semiautomatics the same way.
366
Of course, banning all semiautomatics seems constitutionally and politi-
cally untenable because common semiautomatic handguns are at the core of
the constitutional right to arms, and Americans probably own more than one
hundred million semiautomatic firearms.
367
So, we will likely remain afflicted
by ETB legislation that pursues a thin slice of politically-defined “bad
guns.”
368
Defiant public officials will perceive the discernment problems em-
bedded in this sort of legislation as presenting strong invitations for discre-
tionary nonenforcement.
369
d. The McCarthy-Style Discernment Problem and An Example From
Recently Proposed Federal Executive Action.
The previous subsection discussed existing examples of how problems
with discerning ETB contraband invite discretionary nonenforcement. This
subsection presents a looming potential example. The problem appears in a
proposed agency rule governing “pistol-stabilizing braces.”
370
365
. See Kelly, supra note 284, at 354; ROTH & KOPER, supra note 261.
366
. See Kelly, supra note 284, at 354; ROTH & KOPER, supra note 261.
367
. See NSSF Releases Most Recent Firearm Production Figures, NSSF (Nov. 16, 2020),
https://www.nssf.org/articles/nssf-releases-most-recent-firearm-production-figures/ (estimating the
number of firearms in circulation based on production figures since 1990). There is no precise count
of the amount of semiautomatic firearms in the U.S. Id. One hundred million is a conservative esti-
mate based on several factors. Id. Current estimates by the National Shooting Sports Foundation put
the number of semiautomatic “assault rifles” alone at more than twenty million. Id. This count does
not include other semiautomatic rifles that are not considered assault rifles, semiautomatic pistols
(which alone might number close to one hundred million), or semiautomatic shotguns. See id. For
data that will aid in constructing an estimate of the total number of semiautomatic firearms in the
United States, see Philip J. Cooke & Jens Ludwig, Guns in America: National Survey on Private
Ownership and Use of Firearms, NAT’L INST. OF JUST. 1, 5 (1997), https://www.ojp.gov/pdffiles/
165476.pdf; WILLIAM J. KROUSE, CONG. RSCH. SERV., RL32842, GUN CONTROL LEGISLATION 8–9
(2012), https://sgp.fas.org/crs/misc/RL32842.pdf.
368
. See Johnson, Shots Across No Man's Land, supra note 157, at 441–43 (detailing the bad gun
formula).
369
. See, e.g., JACOBS & FUHR, supra note 268, at 45–61, 221 n.19 (discussing private defiance
already witnessed).
370
. See Factoring Criteria for Firearms with Attached “Stabilizing Braces,” 86 Fed. Reg. 30826
(June 10, 2021) (to be codified at 27 C.F.R. pts. 478, 479); Objective Factors for Classifying Weapons
with “Stabilizing Braces,” 85 Fed. Reg. 82516 (Dec. 18, 2020).
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The pistol-stabilizing brace attaches to large, cumbersome “pistols” and
allows the shooter to fire them more easily with one hand.
371
These large
pistols are generally adapted from rifles.
372
But unlike rifles, they have short
barrels and no shoulder stock.
373
Under federal law, this configuration renders
these guns “pistols,” even though their size and weight make them difficult to
fire with one hand like one would a traditional pistol.
374
The pistol stabilizing
brace attaches to the back of the gun, fits over the shooter’s forearm, and helps
the shooter fire the gun with one hand.
375
The stabilizing brace also can allow the firing of the gun from the shoul-
der (although this is sub-optimal because the contact point is just the thin edge
of the hollow brace versus a solid shoulder stock). This presents an esoteric
regulatory issue, because using a stabilizing brace to fire guns from the shoul-
der mimics the functionality of a short-barreled rifle.
376
Short-barreled rifles
are subject to the stringent regulations of the NFA. So far, ATF has treated
the sale and possession of pistols with stabilizing braces like any other com-
mon GCA pistol.
377
In December 2020, the ATF issued a notice of proposed rulemaking that
would potentially reclassify guns with stabilizing braces as short-barreled ri-
fles (governed by the NFA).
378
If this proposed rule is finalized, it will present
a variety of enforcement problems and innocence claims.
379
For example, the
rule suggests that some, but not all, stabilizing braces will be subject to the
NFA.
380
The proposed rule would assign points to different stabilizing braces
depending on whether they have characteristics that encourage or discourage
371
. Jennifer Mascia & Alain Stephens, Biden’s Pistol Brace Rule Would Put Pressure on an Al-
ready Strained ATF Division, THE TRACE (July 19, 2021), https://www.thetrace.org/2021/07/atf-na-
tional-firearms-actpistol-brace-application-delay/.
372
. Id.
373
. Id.; see, e.g., AR-15 and AK-47 Pistols, CHEAPER THAN DIRT!, https://www.cheap-
erthandirt.com/firearms/tactical/ar-15-and-ak-47-pistols/ (last visited Sept. 11, 2022).
374
. See Mascia & Stephens, supra note 371.
375
. Id.
376
. Id.
377
. Mascia & Stephens, supra note 371.
378
. Objective Factors for Classifying Weapons with “Stabilizing Braces,” 85 Fed. Reg. 82516
(Dec. 18, 2020). After a flood of comments in opposition, the proposed rule was withdrawn and
reintroduced, with the communication that comments on the prior rule would not carry over. See id.;
Withdrawal of Guidance, 85 Fed. Reg. 86948 (Dec. 31, 2020).
379
. See Mascia & Stephens, supra note 371.
380
. See Objective Factors for Classifying Weapons with “Stabilizing Braces,” supra note 378.
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shouldering the firearm (e.g., padding or lack of a forearm strap).
381
A stabi-
lizing brace that accumulates enough points would transform the gun into an
NFA firearm subject to various requirements, whose violation triggers sub-
stantial fines and imprisonment.
382
The proposed stabilizing brace rule is squarely within the category of
ETBs that Second Amendment Sanctuaries deem objectionable, and it exhib-
its several characteristics that invite discretionary nonenforcement.
383
Imple-
mentation of the rule would require the sort of special effort by front line of-
ficials that invites nonenforcement.
384
The primary problem is that law
enforcers cannot detect violations of the stabilizing brace ban just by observ-
ing the gun.
385
The violation would be failure to complete the registration and
tax paperwork required by the NFA.
386
Random enforcement of the stabiliz-
ing brace rule would involve front line law enforcement officials questioning
citizens about their papers.
387
So, in jurisdictions where SAS policies enjoy
universal support among front line officials, the rare case where law enforce-
ment encounters someone in possession of stabilizing brace contraband could
easily result in good faith nonenforcement because the officer had no reason
to suspect the paperwork was not in order.
388
381
. Factoring Criteria for Firearms with Attached “Stabilizing Braces,” supra note 370, at30832
(June 10, 2021) (to be codified at 27 C.F.R. pts. 478, 479).
382
. Id. at 30829 (proposing the point system); 26 U.S.C. § 5871 (2018) (providing for up to ten
years imprisonment).
383
. See generally Factoring Criteria for Firearms with Attached “Stabilizing Braces,” supra note
370. There are perhaps millions of guns fitted with stabilizing braces. Id. at 30828. So far, that
configuration has been governed like any common firearm under the 1968 GCA. Id. at 30827–28.
The proposed rule would subject these guns to the far more onerous financial and procedural require-
ments of the NFA (the federal law that governs machine guns). Id. at 30828. Failure to comply would
expose violators to up to ten years in prison. 26 U.S.C. § 5871 (2018).
384
. See, e.g., JACOBS & FUHR, supra note 268, at 74 (outlining New York sheriffs’ criticism of
gun control law partly grounded in the difficulty of differentiating legal and illegal firearm accesso-
ries).
385
. See Mascia & Stephens, supra note 371.
386
. Factoring Criteria for Firearms with Attached “Stabilizing Braces,” supra note 370, at 30828.
387
. See id. Because the violation involves failing to register and pay tax for the gun, officers will
inevitably have to ask gun owners with stabilizing braces about their papers. See id.
388
. Cf. infra Section V.E (describing the non-investigation policies adopted by immigration sanc-
tuaries). Like other ETBs, the federal rule would be quite effective prospectively by restricting new
sales by easily identifiable and highly regulated manufacturers, wholesalers, and retailers who did not
register these firearms under the NFA. See Factoring Criteria for Firearms with Attached “Stabilizing
Braces,” supra note 370, at 30846 (describing four scenarios that allow manufacturers and individuals
to comply with the law). By contrast, enforcement against current private owners would be difficult
because there is no way to determine who they are. See id.
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This nonenforcement dynamic surrounding paperwork violations extends
to scenarios where prospectively banned guns are grandfathered so long as
they are registered.
389
Identifying contraband in that context also requires dis-
cernment of paperwork violations that will not be evident from casual con-
tact.
390
Even officials who are ambivalent about prevailing SAS policies
might decline to enforce such violations because enforcement requires special
effort, and violators might make a variety of plausible innocence claims.
391
D. Discretionary Nonenforcement Policies Signal Illegitimacy and
Encourage Private Defiance
Drawing from sociological research, immigration scholars have shown
how narratives and perceptions of illegitimacy fuel noncooperation with fed-
eral immigration laws.
392
This section involves that framework to show how
389
. See Factoring Criteria for Firearms with Attached “Stabilizing Braces,” supra note 370, at
30847 (proposing an alternative where “existing firearms with an attached ‘stabilizing brace’” are
grandfathered in).
390
. Cf. Northrup v. City of Toledo Police Dep’t, 785 F.3d 1128, 1131–32 (6th Cir. 2015) (arguing
that allowing Terry stops purely on the evidence of being armed “would effectively eliminate Fourth
Amendment protections for lawfully armed persons” (quoting United States v. King, 990 F.2d 1552,
1559 (10
th
Cir.1993))); Regalado v. State, 25 So.3d 600, 606 (Fla. Dist. Ct. App. 2009) (“[S]topping a
person solely on the ground that the individual possesses a gun violates the Fourth Amendment.”); see
also Royce de R. Barondes, Conditioning Exercise of Firearms Rights on Unlimited Terry Stops, 54
IDAHO L. REV. 297, 331 (2018) (stating that United States v. Ubiles, 224 F.3d 213 (3d Cir. 2000) held
that firearm possession alone provides an insufficient basis for conducting a Terry stop and frisk). But
see Jeffrey Bellin, The Right to Remain Armed, 93 WASH. U. L. REV. 1, 26–27 (2015) (“[F]ederal
courts have largely declined to follow the Florida court’s reasoning.”). Consider for comparison the
evolving jurisprudence regarding officers conducting Terry stops in jurisdictions with liberal con-
cealed carry laws. See sources cited supra. Several state courts have ruled that simply carrying a
firearm does not provide a basis for police to presume that the defendant was breaking the law, or for
a Terry stop and frisk. See cases cited supra.
391
. See, e.g., JACOBS & FUHR, supra note 268, at 74.
392
. See, e.g., Ming H. Chen, Trust in Immigration Enforcement: State Noncooperation and Sanc-
tuary Cities After Secure Communities, 91 CHI.-KENT L. REV. 13, 13 (2016) (noting local law enforce-
ment agencies were not complying with the federal government’s voluntary detainer requests); see
also Jonathan Jackson et al., Why Do People Comply with the Law? Legitimacy and the Influence of
Legal Institutions, 52 BRIT. J. CRIM. 1051, 1053 (2012) (highlighting legitimacy as a key component
to public obedience of laws); TOM R. TYLER, WHY PEOPLE OBEY THE LAW 4 (Princeton Univ. Press
2006) (describing that people who find authorities as legitimate are less likely to break laws); TOM R.
TYLER & YUEN J. HUO, TRUST IN THE LAW: ENCOURAGING PUBLIC COOPERATION WITH THE POLICE
AND COURTS 58–64 (Russell Sage Found. 2002) (highlighting trust in legal authorities’ decisions as
an important factor in whether individuals will accept those decisions); TOM R. TYLER, WHY PEOPLE
COOPERATE: THE ROLE OF SOCIAL MOTIVATIONS 16–17 (Princeton Univ. Press 2011) (noting that
social utility can influence decision-making more than self-interest); Richard H. Fallon, Jr., Legitimacy
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rhetoric and perceptions of illegitimacy might fuel discretionary nonenforce-
ment in the SAS context. Subsection 1 will discuss substantive illegitimacy.
Subsection 2 will discuss procedural illegitimacy.
1. The Practice and Rhetoric of Official Defiance Present Substantive
Challenges to ETB Legitimacy
Immigration scholarship identifies various political, social, and moral
challenges to the legitimacy of federal immigration policies that have fueled
“erosion of community trust[,] . . . undermin[ed] the community policing re-
lationships,” and prompted government officials to resist federal law.
393
The immigration experience prompts the expectation that similar issues
will flow from the intense political disputes and rhetoric surrounding ETB
legislation and the resulting SAS policies.
394
One aid to appreciating the pos-
sibilities here is New York’s development and implementation of the “the
and the Constitution, 118 HARV. L. REV. 1787, 1791–94 (2005) (describing three concepts of legiti-
macy and claiming that sociological acceptance necessary for a legal system to exist); Alan Hyde, The
Concept of Legitimation in the Sociology of Law, 1983 WIS. L. REV. 379, 382 (1983) (noting greater
legitimacy of law leads to greater conformity).
393
. Chen, supra note 392, at 27, 33. One focus of defiance in the immigration context was the
Secure Communities program. Id. at 22. The program allowed federal authorities to screen every
arrestees’ fingerprints against immigration records and request that jails “hold” people potentially sub-
ject to removal beyond their scheduled release until federal authorities could take custody and assess
deportation options. Id. at 23. Resistance to this program was grounded on Fourth Amendment and
Tenth Amendment arguments. Id. at 24 n.35, 30. These sorts of criticisms contributed to a “loss of
sociological acceptance” that imperiled legitimacy. Id. at 31 (invoking Richard Fallon for the point
that “laws depend much more on their present sociological acceptance than upon the legality of their
formal ratification”). One empirical assessment found mounting resistance starting in 2012, culmi-
nating in 26 cities and 233 counties officially restricting law enforcement agencies from “hold[ing]
individuals for transfer to ICE.” Id. at 25. Chen notes that this was far from a majority of localities,
but their resistance was “the snowball leading to the avalanche that disrupted detainer practices.” Id.
at 25–26.
394
. See Chen, supra note 392, at 18 (“Survey-based studies of individuals’ attitudes toward coop-
eration ask whether an individual feels it is okay to disobey a federal law; whether disobeying a law
is sometimes justified; and what factors might cause someone to disobey.”). The immigration critique
suggests an array of other potential impacts of official defiance beyond encouraging private defiance.
See id. at 20. Efficacy also might come in the form of official state county or local resistance that
helps to “weaken, slow, or redirect the . . . mandate.” Id. Another immigration scenario suggests a
potential complication for state SAS policies. See id. at 40. In Texas, cooperation with ICE detainers
generated dissent and resistance in the county housing Austin, a liberal outpost. See Tim Henderson,
Cities, States Resist–and Assist–Immigration Crackdown in New Ways, PEW (Aug. 3, 2018),
https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2018/08/03/cities-states-resist-
and-assist-immigration-crackdown-in-new-ways.
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toughest gun law in America,” the New York SAFE Act.
395
The SAFE Act
included a variety of new gun policies, but its core provisions were classic
ETBs, including assault weapon and magazine bans.
396
Responses to the SAFE Act included rhetorical and practical challenges
to its legitimacy.
397
Those challenges included statements by local officials
questioning the core legal precepts of the legislation and proclaiming public
commitments not to enforce it.
398
Those official challenges to the SAFE Act’s
legitimacy correlated with massive private defiance.
399
James Jacobs’s 2019 book provides a detailed assessment of the SAFE
Act that includes rich accounts of SAFE Act defiance.
400
Jacobs notes at the
outset, “[W]e did not anticipate the depth and breadth of anti–SAFE Act op-
position, especially from county officials and sheriffs outside the New York
City metropolitan area . . .[that] probably encouraged non-compliance.”
401
There were broad early signals of resistance.
402
The New York State
Sheriffs’ Association objected to the problems the SAFE Act posed for law
enforcement in “determin[ing] which semiautomatics qualif[ied] as prohib-
ited assault weapons.”
403
A 2015 account in Forbes magazine described “a
profound social stigma among gun owners against registering these guns with
the government. . . . [T]hey are quick to tell you that many municipalities and
county sheriff departments have reported they won’t enforce the SAFE Act in
395
. See JACOBS & FUHR, supra note 268, at 2.
396
. JACOBS & FUHR, supra note 268, at 2. “[T]he thirty-nine-single-spaced-page bill contained at
least ten separate gun control initiatives, including strengthened bans on assault weapons,” and am-
munition magazines, including a bizarre provision that prohibited individuals from loading more than
seven rounds into ammunition magazines designed for ten rounds. Id. at 2, 70. “States at the vanguard
of gun control law . . . had set ten-bullet-or-more maximum for gun magazines. So New York’s
maximum would be seven, Andrew ruled. The Republican Staffers tried to explain the problem with
that. Gun clips were designed to hold ten bullets at least.” Id. at 70 (quoting MICHAEL SHNAYERSON,
THE CONTENDER: ANDREW CUOMO, A BIOGRAPHY 374 (Grand Cent. Publ’n 2015)). “Gun owners’ .
. . protests quickly persuaded [Democrats] to replace the seven-round limit with a ten-round limit, but
with the face-saving proviso that a ten-round magazine may not be loaded with more than seven car-
tridges.” Id. at 70.
397
. Id. at 51.
398
. Id.
399
. Id. at 51–52.
400
. Id. at 49–61.
401
. Id. at 51.
402
. Id. at 55.
403
. Id. In state litigation, the prohibition on semiautomatic versions of fully automatic machine
guns was struck down for vagueness because “an ordinary person cannot” discern it. Id. at 54.
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their jurisdictions.”
404
Forty counties and two hundred seventy-one municipalities passed reso-
lutions opposing the SAFE Act.
405
“[F]orty-four counties, with the support of
the New York Association of County Clerks, passed resolutions purporting to
prohibit state agencies from using county seals on communications with gun
owners regarding SAFE Act compliance.”
406
Owners of newly restricted as-
sault weapons rallied in opposition.
407
Advancing the New York State Sher-
iffs’ Association’s sharp criticism of the SAFE Act, individual sheriffs were
openly defiant.
408
In the words of one commentator, “[S]heriffs in upstate
communities revolted” against the SAFE Act.
409
The Schoharie County Sheriff attacked the SAFE Act’s core substantive
legitimacy by assuring his constituents: “If you have an (assault) weapon,
which under the SAFE Act is considered illegal, I don’t look at it as being
illegal just because someone said it was.”
410
The Schuler County Sheriff’s
commitment to nonenforcement invoked the Constitution to imply that the
SAFE Act was illegitimate.
411
His public statement that none of his officers
would be coming to take citizens’ guns included the rationale, “I believe in
our rights under the Second Amendment, and . . . the Fourth Amendment.”
412
Other challenges were more matter-of-fact.
413
The Essex County Sheriff
said, “I assure you that I have no intention of going door to door to pick up
any weapons legally owned by any Essex County residents, nor does any other
sheriff in New York State.”
414
The Chemung County Sheriff emphasized that
SAFE Act enforcement was “at the bottom of the list.”
415
404
. Frank Miniter, Nearly One Million New Yorkers Didn't Register Their ‘Assault Weapons,’
FORBES (June 24, 2015, 9:31 AM), https://www.forbes.com/sites/frankminiter/2015/06/24/nearly-
one-million-new-yorkers-didnt-register-their-assault-weapons/#12753db2702f; see also Erica Goode,
Sheriffs Refuse to Enforce Laws on Gun Control, N.Y. TIMES (Dec. 15, 2013), https://www.ny-
times.com/2013/12/16/us/sheriffs-refuse-to-enforce-laws-on-gun-control.html.
405
. JACOBS & FUHR, supra note 268, at 18.
406
. Id. at 22–23.
407
. Id. at 50.
408
. Id. at 51.
409
. See Su, Intrastate Federalism supra note 16, at 204.
410
. JACOBS & FUHR, supra note 268, at 51.
411
. Id.
412
. Id.
413
. See id.
414
. Id.
415
. Id.
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Private defiance of the SAFE Act appears to be pervasive.
416
FOIL re-
sponses show that 23,847 people registered roughly 45,000 assault weapons
in compliance with the law.
417
The National Shooting Sports Foundation es-
timated the number of assault weapons actually owned, and requiring regis-
tration, to be about one million.
418
James Jacobs estimates compliance with
the SAFE Act assault weapon provisions to be about five percent.
419
This is
consistent with other states’ assault weapons restrictions’ single digit compli-
ance rates.
420
Jacobs’s conclusion that public officials’ open defiance probably encour-
aged noncompliance is basically what the legitimacy critique would predict.
421
But these results also illuminate the difficulty of answering the contingent
question raised in Part IV: whether discretionary nonenforcement will sup-
plant formal SAS policies as a tool of official defiance.
422
The fact that seem-
ingly massive resistance to the SAFE Act occurred prior to the rise of the SAS
movement suggests that SAS goals might be achieved through less formalized
commitments to nonenforcement.
423
However, it may be difficult to tease out
precisely how much private defiance those commitments caused versus how
much private defiance would have occurred independently.
424
Precise
416
. Id. at 50.
417
. Id.
418
. Id.; see also Rick Karlin, New York SAFE Act Gun Registration Numbers are Released: Details
Given to Rochester Lawyer in Response to a Lawsuit, TIMES UNION (June 22, 2015), https://www.
timesunion.com/news/article/New-York-SAFE-Act-gun-registration-numbers-are-6343080.php.
419
. JACOBS & FUHR, supra note 268, at 50.
420
. See Jacobs & Potter, supra note 38, at 106.
421
. JACOBS & FUHR, supra note 268, at 51. The seemingly widespread official and private defi-
ance of the SAFE Act also informs the question raised in Part IV—how undeclared resistance will
ultimately compare to formal SAS policies in terms of efficacy. See Gunter, supra note 81. If it turns
out that upstate New Yorkers are massively defying the SAFE Act without significant consequences,
how different is that from a successful formally declared SAS policy? See also Miniter, supra note
404. In private correspondence, one observer noted that the assault weapons aspect of the SAFE Act
“is not being enforced—I live in upstate N.Y. and I know a lot of people who have these banned
firearms; they don’t hesitate to take them to the range.” See supra Part IV. This behavior by upstate
gun owners, seemingly prompted by the belief that local officials will not enforce the SAFE Act, is
consistent with the scholarship showing that criminal deterrence is driven primarily by risk of detec-
tion. See David E. Patton, Criminal Justice Reform and Guns: The Irresistible Movement Meets the
Immovable Object, 69 EMORY L.J. 1011, 1030–32 (2020).
422
. See Gunter, supra note 81.
423
. See supra Part IV. The thwarting of the Lautenberg Amendment is a core example of this
effect. See supra Part IV.
424
. See Brian Mann, Will Upstate NY Cops, Sheriffs Enforce Gun Control Laws?, NCPR (Aug.
14, 2013), https://www.northcountrypublicradio.org/news/story/22532/20130814/will-upstate-ny-
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measurement is further confounded by the difficulty of quantifying informal
or covert defiance by public officials.
425
This difficulty highlights a lingering
uncertainty about how to estimate the comparative utility and tactical appeal
between formal SAS policies and more covert nonenforcement strategies.
426
2. Procedural Illegitimacy, Official Defiance, and Private Defiance
The immigration resistance scholarship shows how questions of “proce-
dural legitimacy” may feed both official and private defiance of contested
laws.
427
Enactment of the New York SAFE Act presents an example of such
questions in the firearms context.
428
The passage of the SAFE Act was unusual.
429
Andrew Cuomo’s biog-
rapher wrote that the process was rooted in the Governor’s ambition to estab-
lish “the toughest gun control bill in the land” following the Sandy Hook mas-
sacre.
430
Success might have advanced his political ambitions by drawing a
contrast to President Obama’s failure to get federal gun restrictions through
Congress.
431
The Governor’s drafting team worked in secret to avoid sparking
a surge in gun sales if news of an impending ban went public.
432
There was
no public debate.
433
The team introduced the bill in the early evening on Jan-
uary 14, 2013, under a “message of necessity,” a procedure that circumvents
the constitutionally required three-day wait between the introduction of a bill
and the final vote on it.
434
The Governor signed the SAFE Act into law on
January 15, 2013.
435
cops-sheriffs-enforce-gun-control-laws.
425
. See Nicholas J. Johnson, Defiance, Concealed Carry, and Race, 83 L. & CONTEMP. PROBS.
159, 164 (2020).
426
. See Fields, supra note 1, at 442–45, 456–57.
427
. Chen, supra note 392, at 17–18, 27–33.
428
. JACOBS & FUHR, supra note 268, at 50.
429
. See id. at 192.
430
. See id. at 10.
431
. See id.
432
. Id. at 11. This is a common phenomenon, the dynamics of which I critiqued in 2008. See
Johnson, supra note 28, at 838–39.
433
. See JACOBS & FUHR, supra note 268, at 12.
434
. Id. at 12–13.
435
. Id. at 15. Jacobs includes a detailed treatment of the politics that led to the votes. See id. at
13-15. Jacobs’s ultimate assessment was that the SAFE Act was long on symbolism but short on
efficacy. Id. at ix–xi. “[T]he political priority was passing the SAFE Act rather than administering
it.” Id. at xi. Throughout the book, Jacobs argues that much of the SAFE Act was practically impos-
sible to implement with the desired effect. See, e.g., id. at 50–52, 161, 167, 191.
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This unusual legislative process alone might prompt skeptics to question
the procedural legitimacy of the SAFE Act.
436
But attempts to implement the
SAFE Act presented additional questions of procedural legitimacy.
437
Among other things, the SAFE Act required sellers of ammunition to be
registered and state police to conduct background checks of all ammunition
purchasers using a state-created database.
438
Difficulties in developing the
database, and protests from various corners, led to a series of “adjustments”
to the ammunition control regulations.
439
First, in 2014, the New York State Police Superintendent issued an “open
letter” exempting businesses and organizations that sell ammunition for use
on their premises from some of the ammunition regulations.
440
James Jacobs
observes that “[s]ince the State police superintendent lacks authority to amend
legislation, this letter technically constituted a promise that the State Police
would not enforce the ammunition provisions against clubs and shooting
ranges.”
441
Comparing the state police open letter to statements—such as sheriffs’
commitments of overt defiance—prompts two observations. First, private re-
fuseniks might credit the sheriffs’ nonenforcement commitments out of sim-
ple confusion.
442
Casual refuseniks might reasonably perceive that public
nonenforcement commitments by sheriffs stand on similar footing to those of
the state police.
443
Second, private refuseniks might justify their defiance by
consciously rejecting any distinction between “legitimate” nonenforcement
by state police and “illegitimate” nonenforcement by sheriffs, and thus ration-
alize their defiance as traditional civil disobedience.
444
Another aspect of the SAFE Act ammunition controls adds texture to the
procedural legitimacy critique. In July 2015, with Governor Cuomo’s ap-
proval, New York State Police entirely halted the effort to create the
436
. See id. at 16.
437
. See Judson Berger, NY Guv Looks to Clarify Gun Law After Concern About Exemption for
Police, FOX NEWS (Dec. 20, 2015, 11:34 PM), https://www.foxnews.com/politics/ny-guv-looks-to-
clarify-gun-law-after-concern-about-exemption-for-police.
438
. JACOBS & FUHR, supra note 268, at 160–61.
439
. See id. at 164–65.
440
. See id. at 159.
441
. Id.
442
. Id. at 45–47, 50–51.
443
. See id.
444
. See Jesse J. Smith, Massive Noncompliance with SAFE Act, HV1 (Apr. 1, 2019), https://hud-
sonvalleyone.com/2016/07/07/massive-noncompliance-with-safe-act/.
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ammunition background check system.
445
New York Senate Republicans
seized this opportunity to introduce an amendment repealing the ammunition
provisions.
446
Shortly after the Republican amendment failed, the Republican Senate
Majority Leader and the New York State Director of Operations signed a
Memorandum of Understanding (MOU) that the ammunition database could
not be established, and that no further funds would be allocated to the project
without bilateral agreement.
447
Governor Cuomo’s counsel issued a statement
that the MOU was consistent with the “letter, spirit [and] intent” of the SAFE
Act.
448
The Senate Minority Leader called the MOU “outrageous” and chided
whether there would be similar MOUs coming on minimum wage.
449
The
Deputy Senate Minority Leader considered the MOU blatantly illegitimate,
saying that “[t]he notion that . . . the [G]overnor, with one house only, can
agree to change state law, turns our democracy on its head.”
450
The Demo-
cratic Assembly Speaker criticized the MOU as an “end run around the legis-
lature and the SAFE Act.”
451
So how closely did New York’s gun owners and their political represent-
atives watch and respond to all of this?
452
Immigration scholars actually sur-
veyed stakeholders in order to determine how narratives of procedural
445
. JACOBS & FUHR, supra note 268, at 165. Initially, SAFE Act drafters planned to use the federal
instant check database, but that aim was disappointed because the NICS system is not authorized to
conduct checks on ammunition purchasers. Id. at 160.
446
. Id. at 165.
447
. Id.
448
. Id. at 166.
449
. Id.
450
. Id.
451
. Id. at 166–67. Cf. Chen, supra note 392, at 13, 28, 45–47 (discussing how similar procedural
warts contributed to the federal detainer program’s loss of legitimacy).
Secure Communities’ history was shrouded in mystery and missteps that bred community
mistrust from its inception. DHS implemented its enforcement program in communities
using a variety of strategies, shifting over time from the use of Memorandums of Under-
standing (MOUs) to other types of negotiated agreements, and then altering the substance
of the agreements to focus on cooperation with detainer requests rather than access to LEA
databases. These inconsistent and changing practices generated confusion over the man-
datory or voluntary nature of local participation in federal immigration enforcement.
Id. at 28.
452
. See generally Jimmy Vielkind, SAFE Act Memo Doesn't Quell Primary Threats, POLITICO
(July 13, 2015, 1:11 PM), https://www.politico.com/states/new-york/albany/story/2015/07/safe-act-
memo-doesnt-quell-primary-threats-023697 (highlighting some United States’ senators’ opinions on
the SAFE Act MOU).
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illegitimacy affected their decisions to resist federal immigration laws.
453
Scholars have not yet explored this connection for the SAFE Act.
454
And
while defiance of the SAFE Act seems well established, cause and effect re-
main unclear.
455
Still, the procedural illegitimacy critique adds value with its
warning about future, similar legislative efforts.
456
The SAFE Act MOU was an adjustment to unforeseen enforcement prob-
lems.
457
But similar nonlegislative policy shifts often occur when control of
the executive branch changes hands.
458
One consequence of these power
shifts is that state reactions to SAS policies and ETB enforcement might vac-
illate dramatically.
459
This raises the opportunity for those who rely on en-
forcement signals from one administration to question the legitimacy of con-
flicting enforcement policies of other administrations.
460
Similar arguments have been advanced in the marijuana and immigration
contexts.
461
Zachary Price argues that state and local marijuana and immigra-
tion nonenforcement policies have invited large numbers of legally unsophis-
ticated people to undertake legal risks in reliance on nonbinding governmental
assurances and that due process principles might protect such reliance.
462
Over time, interactions between Second Amendment Sanctuaries and superior
jurisdictions might produce similar contradictory signals about the legitimacy
and enforcement of contested gun laws.
463
This sort of mixed messaging and
vacillating enforcement fuels a narrative of procedural illegitimacy that en-
courages both discretionary nonenforcement and private defiance.
464
Again,
453
. See Chen, supra note 392, at 18.
454
. See Su, The Rise of Second Amendment Sanctuaries, supra note 13, at 20.
455
. See JACOBS & FUHR, supra note 268, at 165 (discussing single-digit compliance with the SAFE
Act registration requirement).
456
. See Chen, supra note 392, at 29.
457
. See JACOBS & FUHR, supra note 268, at 165.
458
. See Price, supra note 111, at 943. The “intrastate federalism” scholarship shows how intrastate
conflicts along the urban/rural divide on issues such as firearms policy and LGBTQIA+ rights have
supplanted the traditional federalism model of distinct state cultures. See Su, Intrastate Federalism,
supra note 15, at 204–05. Rick Su demonstrates how related policies might shift depending on which
faction is in power. See id. at 197.
459
. See id. at 202.
460
. See id. at 201; Chen, supra note 392, at 56–57.
461
. See Price, supra note 111, at 957–60.
462
. Id. at 961–63.
463
. See id. at 961–62.
464
. See supra note 458 and accompanying text. Su argues that local policies on various issues that
may be at odds with state policy and policies of other municipalities might affect what types of people
choose to locate where. See Su, Intrastate Federalism, supra note 15, at 202. For example, pro-LGBT
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the range of behaviors falls along a spectrum. Public officials who strongly
sympathize with SAS policies can be expected to credit and encourage the
procedural illegitimacy critique, and perhaps resist enforcement of ETBs on
that basis.
465
Officials who oppose SAS policies can be expected to tilt the
other way.
466
E. Official Defiance by Whom: Decision-Making by Three Types of Non-
enforcers
As discussed above, this Article does not address the countless idiosyn-
cratic variables that will affect discretionary nonenforcement by policymak-
ers, prosecutors, and police operating in various circumstances across multi-
ple jurisdictions.
467
Still, decision-making by policymakers, prosecutors, and
police does not entirely defy systematic analysis.
468
There are broad themes
and categorical differences surrounding how policymakers, prosecutors, and
police will engage in discretionary nonenforcement.
469
This section discusses
those themes and differences in three subsections. Subsection 1 draws from
the literature surrounding resistance against federal immigration policy to
show how SAS policymakers might craft similar nonenforcement policies.
470
Subsection 2 focuses on prosecutorial nonenforcement.
471
It draws on lessons
from progressive prosecutors who have used their discretion to combat mass
incarceration by declining to enforce drug and quality of life crimes.
472
Sub-
section 3 discusses how police and prosecutors’ discretionary nonenforcement
decisions are complicated and discouraged in cases involving a combination
of gun and non-gun infractions.
473
The discussion of these “combination
cases” also introduces the concern about bias in exercising enforcement
local polices might draw people who feel those policies are important. See id. Once that trend starts,
those polices will become more entrenched because they respond to a growing constituency. See id.
This phenomenon seems to naturally extend to gun policy. See id. at 204. And the more deeply
embedded it becomes, the more “legitimate” defiance will seem. See id. at 204–05.
465
. See JACOBS & FUHR, supra note 268, at 166–67.
466
. See id.
467
. See supra Part I.
468
. See infra Sections V.E.1–.3.
469
. See infra Sections V.E.1.3.
470
. See infra Section V.E.1.
471
. See infra Section V.E.2.
472
. See infra Section V.E.2.
473
. See infra Section V.E.3.
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discretion—the primary subject of Part VI.
474
1. Nonenforcement by Policymakers: Lessons from Immigration
Sanctuaries
Many local policy makers (county commissioners, mayors, and council-
people) are unlikely to make the sort of frontline nonenforcement decisions
charged to local police and prosecutors.
475
But there are a variety of ways,
peculiar to local circumstances, for local policymakers to concretely advance
SAS goals.
476
Resistance by immigration sanctuaries is particularly instructive here and
presents readily transferable tactics suitable for local policymakers to deploy
in aid of SAS commitments.
477
Lasch provides a catalogue of immigration
resistance policies.
478
One of the most common forms of resistance to federal immigration laws
is the non-investigation mandate.
479
Sometimes called “don’t police” policies,
these local rules direct front line law enforcement agents in contact with sus-
pects to refrain from asking questions about immigration status and from in-
vestigating immigration violations.
480
The non-investigation mandate pairs
well with the earlier observation that nonenforcement might result from fail-
ure to develop and implement the special, ad hoc mechanisms that ETB en-
forcement sometimes requires.
481
Some “don’t police” initiatives appear as police department policies, but
474
. See infra Part VI.
475
. See Su, The Rise of Second Amendment Sanctuaries, supra note 13, at 13–14.
476
. See id.
477
. See e.g., infra notes 478–487 and accompanying text.
478
. Lasch et al., supra note 319, at 1736–52 (synthesizing over five hundred sanctuary policies
spanning nearly four decades).
479
. See id. at 1739.
480
. Id. These policies might also appear as internal police policy. Id. An example of this is LAPD
Special Order 40, which prohibited officers from “initiat[ing] police action with the objective of dis-
covering the alien status of a person.” OFF. OF THE CHIEF OF POLICE, SPECIAL ORD. NO. 40,
UNDOCUMENTED ALIENS (Nov. 27, 1979), http://libguides.law.du.edu/ld.php?content_id=34432079.
Another variation is illustrated by the Princeton, New Jersey Police Department’s General Order that
prohibits officers from arresting people based on ICE administrative warrants. Princeton, N.J. Police
Dep’t, General Order, Enforcement of Immigration Law (Nov. 11, 2013), http://lib-
guides.law.du.edu/ld.php?content_id=34435940 (“Officers shall not arrest or otherwise detain persons
who are entered in the NCIC/SCIC system by . . . I.C.E. unless the entry is for an actual criminal arrest
warrant.”); Lasch et al., supra note 319, at 1742.
481
. See CARLSON, supra note 184, at 112.
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non-investigation mandates have also been imposed through legislation.
482
Legislative non-investigation policies have been established by ordinance in
San Francisco
483
and Hartford,
484
and by state legislation in Oregon,
485
Ver-
mont,
486
and California.
487
There are already examples of this approach being deployed in service of
SAS policies.
488
In June 2021, the Davis County, Utah Sheriff’s Office
adopted an internal policy that prohibited department employees from enforc-
ing laws that infringe on the constitutional right to arms.
489
Sheriff Kelly
Sparks described the approach as more “‘actionable’ than [just] declaring Sec-
ond Amendment [S]anctuary status.”
490
The Davis County commissioners
expressed immediate support for the policy.
491
Release policies adopted by immigration sanctuaries might also be uti-
lized in defiance of ETBs, especially in cases involving non-gun infractions
combined with ETB violations.
492
In those cases, policy makers might man-
date an immigration-style practice of releasing on the ETB infraction if the
primary infraction is resolved or dismissed.
493
Some localities have resisted immigration enforcement by physically bar-
ring federal agents from accessing enforcement resources.
494
New York City,
482
. See Lasch et al., supra note 319, at 1739–40.
483
. S.F., Cal., Ordinance No. 375–89 (Oct. 24, 1989), http://libguides.law.du.edu/ld.php?con-
tent_id=34432127. New York City made similar observations about federal responsibility for enforc-
ing immigration laws by enacting Executive Order 124. See N.Y.C., N.Y., Exec. Order No. 124 (Aug.
7, 1989), https://libguides.law.du.edu/ld.php?content_id=34436598.
484
. HARTFORD, CONN., MUN. CODE ch. 2, art. XXI, §§ 2-925–29 (2008); Lasch et al., supra note
319, at 1739–40.
485
. OR. REV. STAT. § 181A.820 (2020); Lasch et al., supra note 319, at 1740.
486
. Act of June 17, 2014 Vt. Laws, No. 193, § 2366 (S. 184) (amending, VT. STAT. ANN. tit. 20,
§ 2366), https://legislature.vermont.gov/Documents/2014/Docs/ACTS/ACT193/ACT193%20As%
20Enacted.pdf; VT. CRIMINAL JUSTICE TRAINING COUNCIL, MODEL FAIR AND IMPARTIAL POLICING
POLICY ¶¶ VIII, IX (2017), https://libguides.law.du.edu/ld.php?content_id=41582278; Lasch et al.,
supra note 319, at 1740.
487
. CAL. GOV’T CODE § 7284.6 (West 2018) (enacted as part of California S.B. 54 (Oct. 5, 2017)).
488
. See Utah Sheriff’s Department Enacts Policy Defending Gun Rights, AP NEWS (June 2, 2021),
https://apnews.com/article/ut-state-wire-utah-gun-politics-government-and-politics-0023558079c
fc6b6fdadde0fd96eeaaf.
489
. Id.
490
. Id.
491
. See id.
492
. See also Lasch et al., supra note 319, at 1711.
493
. See id. (discussing sheriffs’ defiance of immigration detainer requests).
494
. See id. at 1743.
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for example, passed an ordinance barring federal immigration officers access
to the city jail at Rikers Island.
495
Municipalities in Illinois and California
have deployed similar tactics.
496
This approach is a model for SAS policies
that would prohibit access or aid to ATF, or other federal agencies, attempting
to investigate local firearms refuseniks.
497
A similar noncooperation strategy surrounds information sharing.
498
Some jurisdictions, including Hartford, Los Angeles, New York City, and
Cook County, Illinois, have prohibited city or county officials from sharing
information about suspected illegal immigrants with federal officials.
499
Sub-
stitute ETB enforcement for immigration enforcement and these policies
transfer smoothly to facilitate SAS policies.
500
The reality that local governments are the hands and feet of a great deal
of federal law enforcement reveals another immigration resistance policy that
seems transferable to the SAS context.
501
Various federal initiatives rely on
joint operations between federal, state, and local law enforcement to put
“boots on the ground.”
502
Immigration sanctuaries have targeted this depend-
ency through policies barring local law enforcement from participating in
these joint operations.
503
These types of policies are easily deployed and might have multiple con-
sequences in the firearms context.
504
One example is a recent episode in Mis-
souri, where the state’s newly enacted SAS legislation apparently caused ATF
to keep an enforcement operation secret from the local sheriff.
505
Missouri’s
495
. Id.
496
. Id. at 1744.
497
. See id. at 1737. SAS policies might add broad prohibitions on aid to the ATF or other federal
agencies attempting investigations or operations targeting local refuseniks. See id.
498
. See id. at 1745–46.
499
. Id.
500
. See id. at 1745. Where direct conflict between federal officials and local sanctuaries escalates
to the point of independent federal enforcement, the opposition strategies discussed above would be
predictable local responses. See id.
501
. See id. at 1748–50.
502
. See id. at 1748.
503
. See id. at 1745, 48–50; THE PEW CHARITABLE TR., IMMIGRATION ENFORCEMENT WITHIN THE
NATION’S BORDERS: FEDERAL, STATE, AND LOCAL EFFORTS 6 (July 2014), http://www.pewtrusts.
org/-/media/assets/2014/07/immigrationenforcementbriefjuly2014.pdf (describing different types of
joint operations); Jennifer M. Chacón, A Diversion of Attention? Immigration Courts and the Adjudi-
cation of Fourth and Fifth Amendment Rights, 59 DUKE L.J. 1563, 1579–98 (2010) (describing differ-
ent forms of joint operations).
504
. See Fields, supra note 1, at 463.
505
. See Janet Dabbs, Sheriff ‘Mad’ ATF Concealed Plans to Raid Lake of the Ozarks Gun Shop,
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SAS legislation “prohibits state and local cooperation with federal officials
that attempt to enforce any laws, rules, orders, or actions that violate the Sec-
ond Amendment rights of Missourians.”
506
Some Missouri counties have
adopted additional, more aggressive policies.
507
For example, the Newton
County Commission passed an ordinance in February 2021 that gives local
law enforcement “full authority” to arrest federal agents who attempt to en-
force laws that the ordinance declares invalid.
508
Joint enforcement is sometimes formalized, as in the case of immigration
joint operation 287(g) agreements.
509
Various jurisdictions, including Seattle
and New York State, explicitly prohibit local law enforcement from entering
into such agreements.
510
Federal gun laws invite similar forms of resistance.
511
The immigration model primarily anticipates conflicts with federal offic-
ers that implicate constitutional anti-commandeering doctrine.
512
Local use
of similar tactics in the intrastate context rests on far more tenuous legal foot-
ing.
513
However, there are occurrences of such local resistance whose validity
is at least contestable.
514
For example, the SAS policy adopted by commissioners in Washington
LAKE EXPO (Nov. 11, 2021), https://www.lakeexpo.com/news/politics/sheriff-mad-atf-concealed-
plans-to-raid-lake-of-the-ozarks-gun-shop/article_7694dc72-4315-11ec-81c3-5fd4057f1400.html
(reporting that after an ATF raid on a local gun dealer, the Camden County, Missouri sheriff said, “It
makes me mad I was not notified . . . . Before SAPA, [Missouri’s new SAS legislation] they would
have notified me if they were going to be in my county”).
506
. Id.
507
. See, e.g., Newton County, Mo., Newton County Missouri Second Amendment Preservation
Act (Feb. 3, 2021), https://www.newtoncountymo.com/notices/newton-county-second-amendment-
preservation-act.
508
. See id.
509
. See DORIS MEISSNER ET AL., IMMIGRATION ENFORCEMENT IN THE UNITED STATES: THE RISE
OF A FORMIDABLE MACHINERY 112–13 (MIGRATION POL’Y INST. 2013) (describing DHS partnerships
with local law enforcement).
510
. Lasch et al., supra note 319, at 1749. These policies are notable in the sense that they impose
political officers’ mandates on frontline law enforcers who might make a different judgement about
joint operations. Id.
511
. See supra Part V. The immigration model also demonstrates the possibility of conflict between
frontline enforcers and political actors, which might thwart some nonenforcement policies. See Lasch
et al., supra note 319, at 1751. In Oakland and Santa Cruz, for example, law enforcement defied
policies of noncooperation and provided marginal assistance to federal immigration officers. Id. Oak-
land police provided traffic control for an immigration raid in defiance of municipal policy. Id. In
Santa Cruz, police participated in a joint raid with ICE in direct defiance of a city council resolution.
Id.
512
. See id. at 1756.
513
. See id. at 1756–57.
514
. See id.
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County, Colorado, responded to new state gun restrictions by resolving not to
fund construction space or purchase storage facilities for weapons seized by
law enforcement, and it generally committed not to fund enforcement of any
law that unconstitutionally infringes the constitutional right to arms.
515
The
resolution rests on the ostensible authority of Colorado law that “grants to
each county the authority to adopt and enforce ordinances and resolutions re-
garding health, safety, and welfare issues for the wellbeing of the citizens of
the county.”
516
The peculiar details of local government prerogatives in dif-
ferent states might present other jurisdiction-specific arguments for de jure
validity of local sanctuary policies.
517
Other intrastate resistance has rested on power rather than right. A nota-
ble example is the conflict that ultimately led to the Supreme Court’s decision
in New York v. United States, which partially affirmed New York’s challenge
to federal legislation designed by a coalition of states that initially included
New York.
518
The legislation required members of the coalition to create in-
state facilities for disposal of low-level radioactive waste.
519
When New York
attempted to develop its disposal sites in accordance with the legislation, com-
munities targeted to host the sites revolted.
520
Municipalities closed access
roads, residents formed human chains blocking access to potential waste sites,
and masked protesters on horseback harassed state troopers.
521
Local prose-
cutors dismissed charges against local protesters who had been arrested by
state police, and then chastised state police for making the arrests.
522
Ulti-
mately, local resistance prevailed, and New York ended up challenging the
515
. Res. 52-2019, Bd. of Cnty. Comm’rs of Wash. Cnty. (Colo. 2019).
516
. Id.
517
. See, e.g., Gunter, supra note 81 (reporting that in Virginia, Culpeper County sheriff Scott Jen-
kins said that if a state assault weapon ban passed, he would “swear in hundreds or even thousands of
[his] citizens as deputy sheriffs if need be, to allow them to possess weapons and push back on that
overreach by [the] government”). Whether this is fully within a sheriff’s powers under Virginia law
is an open question. Id. For a critique of the powers and obligations of local constitutional officers in
Virginia, see Halbrook, supra note 7, at 291–95 (arguing that local officials in Virginia are constitu-
tional officers who have a duty to uphold the Constitution against constitutionally questionable gun
legislation until the issue is resolved by the courts).
518
. New York v. United States, 505 U.S. 144, 144–46 (1992).
519
. See Su, Intrastate Federalism, supra note 16, at 224–26.
520
. See id. at 224–25; THOMAS V. PETERSON, LINKED ARMS: A RURAL COMMUNITY RESISTS
NUCLEAR WASTE 214–219 (State Univ. of N.Y. Press 2002).
521
. See Su, Intrastate Federalism, supra note 16, at 224–25; PETERSON, supra note 520.
522
. See Su, Intrastate Federalism, supra note 16, at 224–25; PETERSON, supra note 520.
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constitutionality of the law it had helped design.
523
The examples discussed here are part of wide-ranging local experiments
with nonenforcement and resistance. We should expect that the lessons from
those experiments will be adapted to and expanded by the SAS movement.
524
2. Discretionary Nonenforcement by Prosecutors: Lessons from
Progressive Declination to Charge Marijuana and Other Low-Level
Infractions
There is a long tradition and a rich literature surrounding the broad pow-
ers of prosecutors to decline enforcement of criminal laws.
525
This power of
declination is often exercised in individual cases.
526
More controversially,
some prosecutors also have engaged in programmatic declination (also re-
ferred to as prosecutorial nullification) by refusing to enforce certain catego-
ries of crimes as a general matter.
527
Examples include prosecutors publicly
declaring that they will not prosecute violations of federal marijuana laws,
528
low-level offenses
529
that fuel mass incarceration, and laws deemed morally
or constitutionally objectionable.
530
The parallel between this programmatic declination—prosecutorial nulli-
fication—and discretionary nonenforcement of gun laws is straightforward.
531
Indeed, one recent critique of prosecutorial nullification of marijuana prohi-
bitions and other petty crimes candidly notes that the same approach might be
deployed by prosecutors who object to gun laws.
532
The thwarting of the
Lautenberg Amendment discussed in Part IV is an example of
523
. See Su, Intrastate Federalism, supra note 16, at 225–26.
524
. See Fields, supra note 1, at 501.
525
. See, e.g., Roger A. Fairfax Jr., Prosecutorial Nullification, 52 B.C. L. REV. 1243, 1243 (2011).
526
. See id. at 1254–58.
527
. See id at 1252–53, 1261.
528
. See Ronald F. Wright, Prosecutors and Their State and Local Polities, 110 J. CRIM. L. &
CRIMINOLOGY 823, 831 (2020) (discussing a Virginia prosecutor who campaigned on a promise to
decline charges for possession of small amounts of marijuana).
529
. Id. (discussing promises not to charge for offenses like jumping subway turnstiles).
530
. Id. at 842 n.76. Declination has been characterized as a progressive policy. See Murray, supra
note 319 at 228. It has been deployed by big city prosecutors in defiance of federal cannabis policy
and other low-level offenses. See Wright, supra note 528, at 846. Roger Wright notes how prosecu-
tors’ power to decline charges that police recommend is central to current debates about criminal jus-
tice reform. Id. at 828.
531
. See Murray, supra note 319, at 228.
532
. See Wright, supra note 528, at 831, 833.
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nonenforcement, and underenforcement by police and prosecutors.
533
The legitimacy of programmatic declination is contested.
534
Critiques of
such policies allow instructive comparisons to SAS policies.
535
Many prose-
cutorial declinations reflect a conflict between police, who arrest suspects, and
prosecutors who systematically refuse to charge them under programmatic
declination policies.
536
This sort of conflict implicates W. Kerrel Murray’s
model for assessing the legitimacy of prosecutorial nullification.
537
Murray
argues that the test of legitimacy should be whether prosecutorial nullification
policies are transparent and endorsed by the local electorate.
538
Prosecutors
achieve this legitimacy, says Murray, by campaigning and getting elected on
explicit policies of nullification, even where nonenforcement puts them at
odds with police.
539
By this measure, many SAS jurisdictions—where prosecutors, police, and
policymakers are in general agreement about nonenforcement of objectiona-
ble gun laws—will have comparatively stronger claims to legitimacy.
540
Pow-
hatan County Virginia is emblematic.
541
The Powhatan Board of Supervisors
adopted a SAS policy, which was publicly embraced by prosecutor Dickie
Cox and Sheriff Brad Nunnally.
542
Comparative claims of legitimacy would
be stronger still, where policy makers adopt SAS policies in fully-binding
form, like municipal ordinances versus nonbinding resolutions of the type is-
sued in Powhatan.
543
533
. See supra Part IV.
534
. See Murray, supra note 319, at 199.
535
. See generally 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 (outlining Virginia’s SAS proposals and considering their pros and cons).
536
. See Wright, supra note 528, at 835–36.
537
. See Murray, supra note 319, at 209–10.
538
. See id. at 209–10, 229–30. Ronald Wright emphasizes that prosecutors straddle different levels
of government and answer to different polities—the legislative representatives of the state-wide elec-
torate and the local county residents who elected them. Wright, supra note 528, at 826–27. Wright
also notes that most local police are funded by local governments, facilitating local claims over the
style and pervasiveness of local policing. Id. at 850.
539
. See Murray, supra note 319, at 219–20 (discussing Virginia prosecutor, Parisa Dehghani-Tafti,
who was elected on a platform that included her refusal to prosecute marijuana possession, and the
resulting conflict with Virginia judges).
540
. See McFarland, supra note 81.
541
. See id.
542
. See id.
543
. See supra Part IV (discussing other forms of binding local policies).
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The uniform embrace of SAS policies by policy makers, prosecutors, and
police actually puts prosecutors in a diminished role versus the traditional
prosecutorial nullification scenario.
544
Frontline officers, like county sheriffs
and local police, will make many primary and dispositive nonenforcement de-
cisions by declining to arrest violators of disfavored gun laws.
545
Prosecutors
might never become involved in many of those nonenforcement decisions.
546
Of course, even where there is general agreement on SAS policy, there is
no guarantee that police and prosecutors will assess every case the same
way.
547
So, prosecutors might pressure police to make arrests in some cases,
and in others, might decline to charge individuals that police have arrested.
548
Another version of this dynamic might unfold where arrests on disfavored gun
charges are made by state police. Local prosecutors might implement SAS
policies by declining to charge on those arrests.
549
3. Nonenforcement by Police: Discretionary Policing and the
Challenge of Combination Cases.
The primary driver of the SAS movement is fear of laws that would out-
law guns that Americans already own, prompting a program of confiscation.
550
That would be unprecedented because the primary scenario of gun law en-
forcement in the U.S. is, and has been, the “combination case”—a gun viola-
tion occurring in combination with some other infraction.
551
Indeed, house-
to-house gun confiscation is both politically impractical and, absent a scheme
of registration that does not exist federally nor in most states, seems barred by
the Fourth Amendment.
552
544
. See Fields, supra note 1, at 497–98.
545
. See id.
546
. See Dewan, supra note 136. Some controversial cases might garner public attention, generat-
ing pressure on police to exercise arrest powers. See id. In that sort of case, prosecutors’ declination
powers might play a greater role. See id. This is a context where reference to some of the substantive
justifications for nonenforcement discussed early in Part IV could become important elements in a
prosecutor’s refusal to charge ETB violations. See supra Part IV.
547
. See Fields, supra note 1, at 496–97.
548
. See id.; Fairfax Jr., supra note 524, at 1261.
549
. See, e.g., PETERSON, supra note 520, at 214–219 (providing an example of this in the non-gun
context, where prosecutors dismissed charges made by state police).
550
. See, e.g., McFarland, supra note 81 (providing a statement of Powhatan County prosecutor
Dickie Cox).
551
. See Stevenson, supra note 105, at 214.
552
. See infra Section V.E.3.a.
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This suggests that much of the nonenforcement decision-making in sup-
port of SAS policies will be less straightforward than SAS policies seem to
anticipate.
553
There will be very little, if any, house-to-house confiscation,
with or without SAS policies.
554
But there will be a great deal of highly con-
tingent decision-making in messy combination cases.
555
Those cases will in-
vite various interpretations of SAS policies and will fuel disagreements be-
tween enforcement officials whose commitments to SAS policies will be
tested by a myriad of complexities.
556
Subsections (a) and (b) below present
the details.
a. The Fear Versus the Reality (So Far) of ETB Enforcement
In the abstract, the most direct way to enforce an ETB would be the ap-
proach that Senator Diane Feinstein said she would have preferred to imple-
ment the 1994 Assault Weapons Ban—“Mr. and Mrs. America turn them all
in.”
557
This conjures images of the sort of door-to-door confiscation that Pow-
hatan County prosecutor Dickie Cox described as a core motivation for the
rise of Second Amendment Sanctuaries.
558
While door-to-door confiscation strikes the most fear, it seems unlikely
under our current system.
559
Random or universal searches seem plainly pro-
hibited by the Fourth Amendment.
560
In the vast majority of cases, the gov-
ernment does not know who has what guns and thus lacks probable cause for
a search.
561
There are notable exceptions like California, where gun registra-
tion links individuals to particular guns.
562
Targeted gun confiscation has
553
. See McFarland, supra note 81 (“[D]iscretion is the hallmark of law enforcement.”).
554
. See Johnson, supra note 28, at 878.
555
. See, e.g., Mikos, supra note 92, at 1461.
556
. See id.
557
. Paranoid Pundit, Senator Feinstein on Gun Control in ’95 – “Turn ‘em all in!”, YOUTUBE
(Apr. 15, 2014), https://www.youtube.com/watch?v=yLQINLIwQjA.
558
. See McFarland, supra note 81.
559
. See Johnson, supra note 28, at 865–66, 869.
560
. See id.
561
. See id. at 869–70 (showing that there is currently no federal system that ties individuals to
particular firearms in a pervasively reliable way). The initial purchase of firearms produces paperwork
connecting the buyer to the gun. See id. at 869. However, most subsequent transfers do not. Id. at
869–71. Overtime, guns will be transferred multiple times. Id. Eventually, this renders the initial
purchase data useless. Id. ATF recognizes this dynamic in its policy of only conducting back traces
on guns of recent vintage. See JOHNSON ET AL., supra note 48, at 33.
562
. See CAL. PENAL CODE § 11106(b)(2) (West 2022) (explaining the California gun registry
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indeed occurred under such systems.
563
However, absent a broad system of
registration, the Fourth Amendment is an effective block to sweeping confis-
cation of contraband guns from American homes.
564
This obstacle helps ex-
plain why registration is the third rail of gun policy.
565
The practical barriers to Feinstein-style confiscation allow a useful con-
trast between resistance to gun prohibitions and resistance to immigration
nonenforcement.
566
The ETBs that prompt Second Amendment Sanctuaries
establish a series of possession crimes.
567
The contraband created by defiance
of ETBs is extremely durable and will last for many generations.
568
There are
endless options for storing or hiding the contraband in private places that are
protected by the Fourth Amendment.
569
Detecting these continuing ETB vio-
lations will be extremely difficult compared to the immigration scenario,
where undocumented immigrants are continuously subject to detection as they
live and work in the public space.
570
This comparison shows that in some ways, Second Amendment Sanctu-
aries really just declare the practical reality that detecting and policing private
defiance of ETBs is a low-yield proposition.
571
As I argued in 2009, people
who store away an assault weapon for “stormy days” of public unrest are tak-
ing relatively low risks.
572
If they live in a SAS, the risk–reward calculation
tips even more in favor of defiance; they might plausibly calculate that even
in the unlikely case they have to use their contraband weapon defensively,
frontline investigators (like sheriffs, local police, and prosecutors) would act
contains the “name, address, identification of, place of birth (state or country), complete telephone
number, occupation, sex, description, and all legal names and aliases ever used” of all gun owners).
563
. Robert Lewis, Outgunned: Why California’s Groundbreaking Firearms Law is Failing, CAL
MATTERS (July 21, 2021), https://calmatters.org/justice/2021/07/california-gun-law-failing/.
564
. See Johnson, supra note 28, at 869 n.149.
565
. See id. at 868–74. For a discussion of how fear of shadow registration has been a block to
universal background checks, see Michael P. O'Shea, The Steepness of the Slippery Slope: Second
Amendment Litigation in the Lower Federal Courts and What It Has to Do with Background Record-
keeping Legislation, 46 CONN. L. REV. 1381, 1387–95 (2014); Nicholas J. Johnson, Gun Control Ad-
vocates are Playing Chess, LAW & LIBERTY (Apr. 18, 2013), https://lawliberty.org/gun-control-advo-
cates-are-playing-chess/.
566
. See Fields, supra note 1, at 439–41.
567
. See id. at 449; Johnson, supra note 28, at 863.
568
. See Johnson, supra note 28, at 838, 845–46, 869.
569
. See id. at 869–72.
570
. See Fields, supra note 1, at 462; Lasch et al., supra note 319, at 1728–29.
571
. See Johnson, supra note 28, at 853, 869–70.
572
. Id. at 862–63.
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in accordance with sanctuary policies.
573
This is especially true where contra-
band weapons are used in the fashion that is most common for defensive
guns—where no one is actually shot.
574
b. The Reality of ETB Enforcement and the Concern About Bias
Nonenforcement policies in the gun, immigration, drug, and petty crime
context are similar in that they are not commitments to zero enforcement of
contested laws.
575
Immigration sanctuaries do not attempt to protect undocu-
mented immigrants who have committed other serious crimes.
576
The same is
true for policies that oppose enforcement of low-level drug and quality-of-life
infractions.
577
Progressive declination policies make clear, for example, that
drug infractions that also involve violence or gun charges will be prose-
cuted.
578
SAS policies work the same way, as they are not commitments of zero
enforcement of gun laws.
579
Rather, they are commitments to defy laws that
criminalize people whose only infraction is possession of a newly outlawed
firearm.
580
Either explicitly or implicitly, SAS policies aim to protect “law-
abiding” gun owners, who have not violated any other criminal laws.
581
Even
in staunch SAS jurisdictions, we should expect enforcement of otherwise ob-
jectionable gun laws against people who have committed other crimes, espe-
cially serious violent crimes.
582
This introduces a crucial question: Given that most gun law enforcement
occurs in combination with separate non-gun infractions, how will discretion-
ary non-enforcers respond to various combinations of gun law violations and
573
. See id. at 861, 863.
574
. JOHNSON ET AL., supra note 48, at 19–25.
575
. See Fields, supra note 1, at 467.
576
. See Lasch et al., supra note 319, at 1741.
577
. See, e.g., Lasch et al., supra note 319, at 1721.
578
. See id. at 1741 (noting how noncooperation policies in California; Connecticut; Cook County,
Illinois; and New York City created exceptions for cases where illegal immigrants engage in serious
criminal conduct).
579
. See, e.g., Gunter, supra note 81.
580
. See id.
581
. See sources cited supra note 67 and accompanying text (discussing Texas and Missouri as
examples of jurisdictions explicitly limiting the protections of their SAS legislation to law abiding gun
owners).
582
. See, e.g., Halbrook, supra note 7, at 309.
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other criminal offenses?
583
These combination cases will fall along a spectrum of seriousness and
prompt a range of inferences about the enforcement decisions of SAS officials
who encounter them. For combination cases that involve serious violent
crimes, we should expect enforcement to be substantially unaffected by SAS
policy.
584
At the other end of the spectrum, it is a reasonable speculation that
SAS policies will result in nonenforcement where a trivial offense leads law
enforcement to discover ETB contraband.
585
This speculation is supported by actual experience surrounding two sets
of combination cases and is illuminated by scholarly assessment of combina-
tion cases outside the SAS context.
586
Robert Mikos provides a useful general
assessment of combination cases, identifying a variety of enforcement anom-
alies in a broad set of combination cases where federal laws layer additional
sanctions onto state crimes.
587
This layering distorts state law charging and
prosecution decisions, and it prompts state prosecutors to use a spectrum of
nonenforcement and circumvention strategies.
588
In the immigration context, for example, Mikos provides a dramatic ex-
ample where the state offense of shoplifting fifteen dollars’ worth of baby
clothes was considered an aggravated felony by the Immigration and Natural-
ization Services (INS), resulting in the deportation of a Nigerian immigrant
and her two children.
589
Reacting to these sorts of disparities, “prosecutors
have acknowledged manipulating state charges to circumvent federal
583
. See, e.g., Glenn Thrush, Inside Missouri’s ‘2nd Amendment Sanctuary’ Fight, N.Y. TIMES
(Sept. 9, 2021), https://www.nytimes.com/2021/09/09/us/politics/missouri-gun-law.html (emphasiz-
ing that while Missouri, as a SAS, will not enforce gun laws, the law is vague in that state officials
will not stop raids, background checks, or prohibition on gun purchases by felons).
584
. See Halbrook, supra note 7, at 309.
585
. See Mikos, supra note 92, at 1437.
586
. See, e.g., id.
587
. See, e.g., id. at 1466–74. Mikos’s combination cases generally involve multiple penalties for
the same general action, while the combination cases in this analysis involve a gun infraction com-
bined with some other distinct offense. See id.
588
. See id. at 1411. Mikos catalogues a variety of combinations of state criminal infractions and
immigration violations and presents a model for projecting how different combinations disrupt en-
forcement to different degrees. Id. at 1465. Mikos also examines successful expungements of domes-
tic violence convictions that police officers sought to maintain access to firearms and keep their jobs.
Id. at 1462–63. This is consistent with the hypothesis that various combinations of gun violations and
independent infractions will produce a range of nonenforcement strategies, including reduction or dis-
missal of domestic violence charges and expungement of convictions. See id. at 1463.
589
. Id. at 1449.
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deportation.”
590
This strategy has been deployed in cases far more serious
than shoplifting, including a case of interfamily rape where the consequence
of fully charging the rapist would have been deporting the entire family, in-
cluding the victim.
591
In the SAS context, a similar tie between a federal ETB
and some minor or mid-spectrum state infraction would be a textbook case for
nonenforcement of the federal gun law.
592
Mikos’s general critique is sharpened by two direct examples from the
intersection of gun regulation with domestic violence and drug crimes.
593
These examples sharpen our expectations regarding nonenforcement of ETBs
in combination cases where the non-gun infraction is relatively serious.
594
The discussion of the Lautenberg Amendment in Part IV shows that for a
variety of reasons, state and local officials have exercised enforcement discre-
tion mainly in favor of men accused of domestic violence infractions that also
trigger gun law violations.
595
This willingness to evade the Lautenberg
Amendment suggests the possibility of similar decision-making in cases that
involve domestic violence in combination with some new federal ETB.
596
This seems especially likely if the penalty for violating the new ETB is equal
to, or more serious than, the Lautenberg Amendment penalties that have al-
ready fueled nonenforcement.
597
A second set of combination cases involves violations of both the Con-
trolled Substances Act and gun laws.
598
Dru Stevenson argues that the Con-
trolled Substances Act is “our primary operational form of gun control” be-
cause most gun law enforcement occurs in combination with drug law
violations.
599
According to Stevenson, “[T]he Controlled Substances Act is
actually the main device in our legal system that limits the number of firearms
590
. Id. at 1454.
591
. Id. at 1454–55. The seventeen-year-old defendant had raped and impregnated his twelve-year-
old sister. Id. To avoid deporting the family, the prosecutor reduced the charge from first degree
sexual assault, which carried a penalty of life in prison, to fourth degree criminal sexual conduct, a
misdemeanor. Id.
592
. See, e.g., Halbrook, supra note 7, at 285.
593
. See, e.g., Mikos, supra note 92, at 1419.
594
. See id.
595
. Id. at 1461 (“Florida State Attorney acknowledged giving corrections officers accused of do-
mestic violence preferential treatment because of the firearms ban.”).
596
. See id.; Ramsey, supra note 87, at 1330–32.
597
. Ramsey, supra note 87, at 1330–32 (noting that non-enforcers of the Lautenberg Amendment
list the lifetime ban on firearms possession penalty as one reason for evading the provision).
598
. See Stevenson, supra note 105, at 211.
599
. See id. at 215.
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sold, the main device that in practice limits criminals’ access to guns, and so
on.”
600
These results are understandable considering that gun laws provide im-
portant tools in drug cases.
601
Stevenson explains:
From a law enforcement perspective, gun control laws . . . probably
facilitate investigations by providing alternative grounds for officers
to meet the evidentiary requirements for obtaining warrants or mak-
ing arrests. From a prosecution standpoint, firearms violations nor-
mally function as additional counts in the charges against drug traf-
fickers, and as sentencing enhancements. Gun possession charges
can serve as failsafe or “backup” charges for prosecutors in difficult
cases, because of the streamlined elements under the statutes and ev-
idence (the mere possession of guns is usually proof in itself). Thus,
the firearm laws may give prosecutors in drug cases more leverage
during plea negotiations or with turning a conspirator into a govern-
ment informant; the firearm charges make the prosecutions more
likely to be effective or successful . . . .
602
So how will discretionary nonenforcement unfold in combination cases
where drug, immigration, or domestic violence offenses are bound up with the
firearms violations that are nominally excused by SAS policies?
603
These
complexities will test individual commitments to SAS policies and present
hard questions about the true boundaries of SAS policies drafted with the glib
commitment to not enforcing unconstitutional gun laws.
604
The complications here seem endless, but several broad observations
600
. Id. Federal law prohibits both users of controlled substances, including those who have been
arrested for drug crimes, and persons with felony drug convictions from purchasing or possessing
firearms. See 18 U.S.C. § 922(g)(1)–(3) (2020); see also Stevenson, supra note 105, at 222–23 (citing
T.D. ATF-391 Definitions for the Categories of Persons Prohibited from Receiving Firearms (June
27, 1997), https://www.atf.gov/file/84311/download).
601
. See Stevenson, supra note 105, at 214.
602
. Id.; see also Kimberly J. Winbush, Annotation, Proscription of 18 U.S.C.A. § 922(g)(3) That
Persons Who Are Unlawful Users of or Addicted to Any Controlled Substance Cannot Possess Any
Firearm or Ammunition In or Affecting Commerce, 44 A.L.R. Fed. 3d § 3 (2019) (describing imposed
sentencing enhancements related to gun possession by drug users); Stacey M. Studnicki, Federal Sen-
tencing Guidelines, 2 MICH. STATE L. REV. 351, 369 (1999) (discussing the sentencing enhancement
based on gun possession by a drug user in United States v. Jarman, 144 F.3d 912 (6th Cir. 1998)).
603
. See, e.g., Stevenson, supra note 105, at 214.
604
. See, e.g., supra note 588 and accompanying text.
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frame the dynamic.
605
First, in many cases the standard problem-solving
mechanisms will be unavailable. For example, the more covert the nonen-
forcement policy, the less access frontline officials will have to systematic
judicial resolution of various interpretation questions.
606
Rather, they will be
left to navigate such questions independently, according to their individual
experiences and preferences.
607
This is a model for the sort of idiosyncratic
decision-making that we said at the outset was impossible to track in any sys-
tematic way.
608
And lack of predictability is not the only problem.
609
Idiosyncratic decision-making on the hard questions posed by combina-
tion cases also prompts a concern about enforcement bias.
610
Analysis of do-
mestic violence and drug enforcement already demonstrates a trend of racial-
ized enforcement that disproportionately penalizes minorities.
611
Carol
Ramsey and Robert Mikos both describe biased nonenforcement in favor of
police suspected of domestic violence.
612
Not only is there substantial under-
enforcement of domestic violence laws against police, there is also strong ev-
idence of disproportionate over-enforcement against Blacks and Browns.
613
Add to this the prominent examples of bias in the enforcement of drug laws,
and it is fair to worry about bias in discretionary nonenforcement of combina-
tion cases which characterize most gun law violations.
614
Part VI below ex-
amines the bias concern in more detail.
615
605
. See infra notes 606–10 and accompanying text.
606
. See, e.g., Barbara E. Armacost, Organizational Culture and Police Misconduct, 72 GEO.
WASH. L. REV. 453, 510–12 (2004).
607
. See id.
608
. See id. at 512 (“[D]ay-to-day decisions that police officers make, including the ones that are
most likely to involve police-citizen contacts, are determined more by the informal norms of street-
level police culture than by formal administrative rules.”).
609
. See infra Part VI (discussing enforcement bias as it pertains to race).
610
. See Ramsey, supra note 87, at 1330–32, 1340–42.
611
. See, e.g., id. at 1340–42.
612
. See id. at 1335; Mikos, supra note 92, at 1440.
613
. See Ramsey, supra note 87, at 1330–32 (showing that discretionary decision-making surround-
ing arrests, charging, and sentencing is subject to bias).
614
. See, e.g., id.; Stevenson, supra note 105, at 214.
615
. Stevenson, supra note 105, at 215. The observed situational variability of discretionary non-
enforcement suggests that front line officers will indeed enforce objectionable gun laws against some
suspects but be less inclined to do so against others. Ramsey, supra note 87, at 1330-1332; Lininger,
supra note 30, at 177–82.
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VI. SANCTUARIES, DISCRETION, AND RACE
Given the bias embedded in many exercises of discretion in the criminal
justice system, it is fair to worry that discretionary nonenforcement strategies
in the SAS context might also succumb to bias.
616
This is especially concern-
ing where nonenforcement means ignoring or discounting non-gun infractions
that occur in combination with SAS insulated gun violations.
617
The precedents for the worry about biased exercises of discretion in crim-
inal law are legion.
618
There is rich literature detailing racially biased exer-
cises of discretion in drug law enforcement,
619
stop-and-frisks,
620
charging de-
cisions,
621
general Fourth Amendment administration,
622
and police officers’
escalation to violence.
623
This fuels the concern that the exercise of enforce-
ment discretion in the SAS context also might succumb to bias.
624
Moreover,
because firearm laws are generally enforced in combination with other infrac-
tions, particularly drug law violations, it might be inevitable that the racially
disparate treatment identified in enforcement of drug and other laws will flow
616
. See, e.g., Ramsey, supra note 87, at 1330–32; Armacost, supra note 606.
617
. See Ramsey, supra note 87, at 1330–32; Stevenson, supra note 105, at 214.
618
. See infra notes 619–623 and accompanying text.
619
. Stevenson, supra note 105, at 215 (“Despite the awful problems with the Controlled Sub-
stances Act and the mass incarceration it produces, one could argue that the CSA is our main form of
gun control right now.").
620
. See IAN AYRES & JONATHAN BOROWSKY, STUDY OF RACIALLY DISPARATE OUTCOMES IN
THE LOS ANGELES POLICE DEPARTMENT (U.S. Dep’t of Just. 2008), https://www.ojp.gov/ncjrs/vir-
tual-library/abstracts/study-racially-disparate-outcomes-los-angeles-police-department; Kami Chavis
Simmons, The Legacy of Stop and Frisk: Addressing the Vestiges of a Violent Police Culture, 49
WAKE FOREST L. REV. 849, 856 (2014) (discussing factual findings regarding patterns and practices
of racial profiling within the NYPD).
621
. See Nanasi, supra note 87, at 573–74; Ramsey, supra note 87, at 1340–42; DEMOGRAPHIC
DIFFERENCES IN SENTENCING, U.S. SENT’G COMM’N (2017), https://www.ussc.gov/research/re-
search-reports/demographic-differences-sentencing (showing that Black male offenders receive
longer sentences than similarly situated White male offenders).
622
. See, e.g., Sarah Rankin, Virginia AG Sues Town, Alleging Discriminatory Policing, NBC N.Y.
(Dec. 31, 2021, 9:45 AM), https://www.nbcnewyork.com/news/national-international/virginia-ag-
sues-town-alleging-discriminatory-policing/3474093/; AYRES & BOROWSKY, supra note 620; see also
Paul Butler, The System is Working the Way it is Supposed To: The Limits of Criminal Justice Reform,
104 GEO. L.J. 1419, 1446–50 (2016); Nicholas J. Johnson, Firearms Policy and the Black Community:
An Assessment of the Modern Orthodoxy, 45 CONN. L. REV. 1491, 1492 (2013).
623
. See Nicholas J. Johnson, Lawful Gun Carriers (Police and Armed Citizens): License, Escala-
tion, and Race, 80 LAW & CONTEMP. PROBS. 209, 209–23 (2017); Armacost, supra note 606, at 453–
54.
624
. See, e.g., Stevenson, supra note 105.
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into SAS policies.
625
Bias, favoritism, and cronyism also have strong antecedents in gun regu-
lation.
626
A great deal of early gun control legislation was explicitly racist.
627
There are profuse examples of this in state constitutional right to arms provi-
sions
628
and in federal constitutional jurisprudence.
629
Even where gun laws
were not explicitly racist, there was often an understanding that in practice,
the laws were intended to be enforced more harshly—or exclusively against—
Blacks and Browns.
630
Robert Cottrol and Raymond Diamond’s article, “Never Intended to Ap-
ply to the White Population”: Firearms Regulation and Racial Disparity—
The Redeemed South’s Legacy to a National Jurisprudence? is a classic ref-
erence on this point.
631
The title of the article was taken from Florida Supreme
Court Justice Buford’s concurring opinion in the 1941 case, Watson v.
Stone.
632
Buford explained in detail that a Florida law prohibiting carrying of
firearms without a license was in fact only aimed at Black people, and “was
never intended to be applied to the white population.”
633
And lest we dismiss
625
. See, e.g., id.
626
. See, e.g., Robert J. Cottrol & Raymond T. Diamond, “Never Intended to Be Applied to the
White Population”: Firearms Regulation and Racial Disparity—The Redeemed South's Legacy to a
National Jurisprudence?, 70 CHI.-KENT L. REV. 1307, 1313–18 (1995).
627
. See, e.g., id. at 1324–28.
628
. See JOHNSON ET AL., supra note 48, at 439–49.
629
. See Scott v. Sanford, 60 U.S. 393, 417 (1857) (arguing one reason for denying citizenship to
African Americans was to ensure that African Americans did not have the right to bear arms under the
Constitution); see also JOHNSON ET AL., supra note 48, at 441.
630
. See, e.g., Cottrol & Diamond, supra note 626, at 1329–33.
631
. See id. at 1313–18.
632
. See 4 So. 2d 700, 703 (Fla. 1941) (Buford, J., concurring).
633
. Id. (“I know something of the history of this legislation. The original Act of 1893 was passed
when there was a great influx of negro laborers in this State drawn here for the purpose of working in
turpentine and lumber camps. . . . [T]he Act was passed for the purpose of disarming the negro laborers
and to thereby reduce the unlawful homicides that were prevalent in turpentine and saw-mill camps
and to give the white citizens in sparsely settled areas a better feeling of security. The statute was
never intended to be applied to the white population. . . . [I]t is a safe guess to assume that more than
80% of the white men living in the rural sections of Florida have violated this statute. . . . [T]here has
never been, within my knowledge, any effort [to] enforce the provisions of this statute as to white
people, because it has been generally conceded to be in contravention of the Constitution and non-
enforceable if contested.”). Buford’s knowledge of the Florida legislation stemmed in part from ac-
tually working in the lumber camps that he references. See Justice Rivers Henderson Buford, FLA.
SUP. CT. (Dec. 4, 2020), https://www.floridasupremecourt.org/Justices/Former-Justices/Justice-Riv-
ers-Henderson-Buford#:~:text=Justice%20Buford%20served%20as%20Jus-
tice,1959%2C%20in%20Tallahassee%2C%20Florida. The Florida Supreme Court’s biographical en-
try for Buford states that his “work life started when he was 10 as a day laborer and cook in a logging
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this sort of concern as a vestige of an earlier time, consider the powerful case
made by Amici Black Public Defenders in N.Y. State Rifle & Pistol Ass’n v.
Corlett that New York City’s discretionary licensing permit scheme for fire-
arms has its own racist roots and continues to discriminate against Blacks and
Browns.
634
A highly textured presentation of racial bias in the discretionary enforce-
ment of gun laws appears in Jennifer Carlson’s work.
635
Carlson recasts the
traditional gun debate by deploying the themes of “gun militarism” and “gun
populism” to replace the traditional pro-gun/anti-gun dichotomy.
636
She
demonstrates how policing the right to arms proceeds simultaneously along
these two tracks, with gun militarism explaining the harsh application of gun
laws to “bad guys” and gun populism explaining the police’s embrace of
armed “good guys.”
637
Carlson’s gun populism resonates powerfully in the rise of SAS poli-
cies.
638
Gun populism explains how policy makers and law enforcers might
consider armed good guys (even in the public space) an asset.
639
It also ex-
plains how the same officials who champion armed good guys simultaneously
take a tough-on-crime, harsh-enforcement-of-gun-laws approach to “bad guys
with guns.”
640
Carlson argues that law enforcers depict and talk about good guys and
bad guys in highly racialized ways.
641
Her critique is particularly useful for
thinking about SAS combination cases, where insiders who have only violated
some objectionable gun law are the classic good guys that Second Amend-
ment Sanctuaries aim to protect. Even where these good guys violate some
camp. The logging camp owner, a federal judge, noticed Buford’s talent and intelligence and sent him
to Tallahassee in 1899 to study for a law career.” Id.
634
. Brief of The Black Attorneys of Legal Aid et al. as Amici Curiae in Support of Petitioners,
N.Y. State Rifle & Pistol Ass’n v. Corlett, 142 S. Ct. 2111 (2022) (No 20-843) [hereinafter Black
Public Defenders Brief].
635
. See CARLSON, supra note 184, at 57–85, 143–70.
636
. See id. at 26, 57–60.
637
. See id. at 142.
638
. See id.
639
. See id. at 141.
640
. See, e.g., id. at 136.
641
. Id. at 142. Police talk about good guys as ranchers, farmers, and teachers, while they talk about
bad guys as gang bangers and dead-beat dads. Id. at 142, 145, 161. Similar issues appear in Carlson’s
observations of a concealed carry license review board made up of white, male, former police officers,
who exercised their discretion in dramatically different ways depending on whether applicants were
white or Black. Id. at 145.
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other law, insider bias might still result in nonenforcement. The corollary is
that outsiders involved in similar combination cases should expect harsher
treatment.
This danger of bias seems even greater where superior jurisdictions
threaten to sanction defiant local officials.
642
Nonenforcement decisions un-
der such pressures will present an array of risks for public officials, raising
the question: Will defiant law enforcers take the same risks for outsiders that
they will for friends, neighbors, and supporters?
The worry about biased exercises of discretion suggests a nominal pref-
erence for SAS policies adopted at the state level.
643
Nonenforcement policies
formally enacted into state law and crafted to uniformly block state and local
officials from enforcing federal law would nominally remove the danger of
biased enforcement.
644
But here we must remember the lesson of combination
cases—that SAS policies are not blanket refusals to enforce gun laws.
645
Both
explicitly and implicitly, SAS policies endorse gun law enforcement against
people who also have violated other criminal laws.
646
The intersection of immigration and gun regulation presents illuminating
combination cases and intriguing examples of potential nonenforcement bias
even in the case of statewide SAS policies.
647
Note first that weapons of-
fenses, along with drug violations, are one of the most common grounds for
deporting criminal aliens.
648
Consider now the combination case of an ETB
violation by an illegal immigrant under a statewide SAS policy. The anecdo-
tal evidence suggests vastly different political ideologies driving Second
Amendment Sanctuaries and Immigration Sanctuaries.
649
Witness how the
progressive city of Tucson pressed immigration sanctuary policies to the point
of conflict with state officials, and is now committed to resisting the state’s
new SAS legislation.
650
Note also how Texas has adopted strong SAS policies
but is simultaneously committed to robust enforcement of federal immigration
642
. See supra notes 72–73 and accompanying text.
643
. See, e.g., Halbrook, supra note 7, at 285.
644
. See id.
645
. See supra Section V.E.
646
. See, e.g., Halbrook, supra note 7, at 309.
647
. See, e.g., Lasch et al., supra note 319, at 1741–42.
648
. See Mikos, supra note 92, at 1445.
649
. See supra Sections V.E.1, V.E.3.
650
. See Tucson to Ignore Arizona’s ‘Second Amendment Sanctuary’ Law, AP NEWS (July 6, 2021),
https://apnews.com/article/joe-biden-az-state-wire-arizona-tucson-gun-politics-
f1521fa4e6c05a10f140abcdd8cf394a.
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restrictions.
651
So how will Constitutional Sanctuaries like Arizona and Texas treat com-
bination cases involving ETB and immigration law violations? Their strong
support for robust immigration enforcement suggests that undocumented im-
migrants are the exemplar of the outsider who should not expect to fully ben-
efit from SAS policies.
652
Bourgeoning critiques of the intersection between federal firearms law
enforcement and mass incarceration also illuminate concerns about bias.
653
Critics of joint federal and state initiatives—such as Operation Trigger Lock,
Project Exile, and Project Safe Neighborhoods—that target state firearms of-
fenders for enhanced federal prosecution argue that the process and outcomes
reflect pervasive racial bias.
654
These critics argue that bias is firmly embed-
ded in firearms law enforcement, particularly for combination cases that in-
volve both gun and drug infractions.
655
These critiques suggest that while bias in the exercise of enforcement dis-
cretion is likely, it would be nothing new.
656
Rather, it would unfold as just
another layer of an already pervasive problem that afflicts other aspects of
criminal law enforcement.
657
Moreover, the insurgent and often covert nature
of SAS policies would make it especially difficult to identify and redress bias
occurring in their implementation.
658
651
. See Henderson, supra note 394. Texas SAS legislation does not protect people who are other-
wise prohibited by state law from possessing firearms. See H.B. 2622, 87th Leg. (Tex. 2021). Illegal
aliens are prohibited by federal law from possessing firearms. 18 U.S.C. § 922(d)(5) (2020). Texas
is committed by statute to nonenforcement of some federal gun laws. See H.B. 2622, 87th Leg. (Tex.
2021). It is not clear whether illegal immigrants would be barred from firearms possession as a matter
of Texas state law. See Henderson, supra note 394; see generally Clare Huntington, The Constitu-
tional Dimension of Immigration Federalism, 61 VAND. L. REV. 787 (2008).
652
. See Mikos, supra note 92, at 1445. Similar concerns flow from racialized phenomena like the
police license to escalate that has resulted in minor infractions spiraling out into violence. See John-
son, Lawful Gun Carriers (Police and Armed Citizens): License, Escalation, and Race, supra note
623, at 209–23.
653
. See, e.g., Benjamin Levin, Guns and Drugs, 84 FORDHAM L. REV. 2173, 2193–2196 (2016).
654
. See id. at 2207–09; David E. Patton, Criminal Justice Reform and Guns: The Irresistible Move-
ment Meets the Immovable Object, 69 EMORY L. J. 1011,1011–12 (2020).
655
. See Patton, supra note 654, at 1021–22 (arguing that “[r]acial disparity has been part of [federal
gun] prosecutions from the start,” and criticizing prosecutors’ inability to explain racial disparities in
the cases diverted for federal prosecution); Levin, supra note 653, at 2191–2215 (extending the criti-
cisms of racial bias in the War on Drugs to prosecution of firearm possession offenses).
656
. See supra note 655 and accompanying text.
657
. See supra note 655 and accompanying text.
658
. See, e.g., CARLSON, supra note 184, at 165–68 (hinting at the difficulty of redressing the dis-
parity between the treatment of white versus Black gun permit owners at gun licensing hearings).
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As a practical matter, the bias critique of SAS policies will likely just add
texture to existing conversations about race-coded policing.
659
There is, for
example, a superficial appeal to the criticism that SAS policies implemented
through discretionary nonenforcement are a recipe for a revival of the sort of
racialized gun regulation that Justice Buford described in Watson.
660
And in-
deed, the proposition of race-coded gun policing driven by red enclave defi-
ance is eye-catching.
661
But how different is this from the same result driven by relatively strin-
gent gun policies enacted in blue enclaves that have high concentrations of
Blacks and Browns? Joseph Blocher, Justice Breyer—in his dissent in Hel-
ler—and others have argued for more local discretion in imposing stricter gun
laws in high-crime, urban areas, which uniformly have high concentrations of
Blacks and Browns).
662
Discretionary nonenforcement operates on that same
spectrum: the rural/urban divide.
663
The difference is that SAS policies por-
tend discriminatory results through a selective loosening of rural gun regula-
tion, while gun localism produces similar results through selective tightening
of urban regulation.
664
Both approaches are potential pathways toward a land-
scape of racialized enclaves where gun regulation has dramatically different
practical effects for different types of people.
665
VII. CONCLUSION
While the experience with Second Amendment Sanctuaries is just unfold-
ing, enforcement discretion promises to be a powerful tool for practical im-
plementation of SAS policies.
666
This evident utility of enforcement discre-
tion prompts several lingering questions and opportunities for future work.
One question is whether discretionary nonenforcement will turn out to be
659
. See, e.g., Patton, supra note 654, at 1021–22 (expressing skepticism about reforms that would
address the evident racial disparities in federal firearms law enforcement).
660
. Watson v. Stone, 4 So. 2d 700, 703 (Fla. 1941) (Buford, J., concurring).
661
. See generally id. at 703 (asserting that a gun law was “never intended to be applied to the white
population”).
662
. See Joseph Blocher, Firearm Localism, 123 YALE L. J. 82, 140–46 (2013); District of Colum-
bia v. Heller, 554 U.S. 570, 681–82 (2008) (Breyer, J., dissenting).
663
. See, e.g., CARLSON, supra note 184, at 165–68.
664
. See supra Parts V–VI; Blocher, supra note 662.
665
. See, e.g., CARLSON, supra note 184, at 165–68.
666
. See, e.g., McFarland, supra note 81.
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more useful than formal SAS policies.
667
Will it become the dominant form
and supplant more confrontational SAS policies? Answering these questions
will be complicated by the challenge of identifying and measuring undeclared
nonenforcement policies.
Other questions surround the intersection of SAS policies, discretionary
nonenforcement, and combination cases. Will combination cases continue to
dominate enforcement scenarios? If so, will the utility of discretionary non-
enforcement be diminished by the complexities that combination cases pre-
sent?
The long-term question is this: How will Second Amendment Sanctuaries
stack up as policy? What will be their broad policy impact? Divergent state
policies will present natural experiments that provide empiricists with the op-
portunity to compare results between jurisdictions that adopt various types of
SAS policies and jurisdictions that do not.
668
667
. See, e.g., Halbrook, supra note 7, at 285; Massaro & Milczarek-Desai, supra note 72, at 85.
668
. See, e.g., Halbrook, supra note 7, at 278–79, 284–85.
