By Emily Taylor
The number of states declaring themselves Second Amendment sanctuaries is on the rise. This means a question asked with increasing frequency is coming to the forefront: Is the decision to make states “sanctuaries” legally binding, or does it only lip service to the gun rights community at large?
Before we get into that, let’s answer the question of what it means when states declare themselves sanctuaries.
What Is a Second Amendment Sanctuary?
Generally speaking, a Second Amendment sanctuary is an area where federal gun laws won’t be enforced by local authorities. However, in some areas, the sanctuaries only ban enforcement of federal gun laws that are “unconstitutional.”
Usually that means local law enforcement won’t enforce federal gun laws unless there are already similar state laws. Depending on the statute of the specific area, if authorities attempt to enforce such laws, they could face fines and penalties.
Lately we’ve been seeing more bills signed into law under different titles, such as “Second Amendment Freedom City” and “Second Amendment Preservation Act,” along with the more common “Second Amendment Sanctuary.”
How Is Federal Law Different from State Law?
Federal laws apply to the entire country, meaning all 50 states are affected by them. Copyright and bankruptcy laws are examples of federal laws. Bills that become federal laws are introduced by a senator or representative in Washington, D.C., and have to pass the House and Senate before being signed or refused—vetoed—by the President of the United States (sometimes the presidential signature is not required). You can read about the process here.
State laws apply only to the state where they are passed. Different states have varying laws for issues like divorce, personal injuries from a car accident, and welfare. There are also specific local laws for things like rent and zoning that affect towns and cities.
Both federal and state laws address issues such as criminal matters and firearms.
Which Laws Are More Powerful?
A deep dive into the U.S. Constitution answers the question of who can legally decide what is or is not constitutional. Article VI, Clause 2 — the Supremacy Clause — covers this issue and basically says federal laws trump state or local laws that conflict with the federal law. Also, Article III of the U.S. Constitution outlines what the federal court system is and gives federal courts the final say on interpreting the U.S. Constitution (Article III also defines “treason”).
There is a legal theory called “nullification” that many believe covers the problem of states proclaiming themselves to be sanctuaries. The idea behind nullification is that since the states themselves created the federal government, the states should therefore be allowed to limit the federal government’s power.
The idea of nullification began in 1798 with Thomas Jefferson and James Madison (the Nullification Crisis of the 1830s is worth reading about). However, courts at every level have repeatedly rejected the theory of nullification.
Has Precedent Been Set for Sanctuaries?
Does that mean there is no hope for Second Amendment sanctuaries where states will enforce their own laws over federal law? No, not exactly. Second Amendment sanctuaries may have some precedent to fall back upon.
One case worth bringing to the Second Amendment sanctuary discussion is Printz v. United States, 521 U.S. 898 (1997). This case took place following the Brady Handgun Violence Prevention Act of 1993, which laid the groundwork to establish the nationwide background check system for firearms purchases we have today.
When the Act was still being put into place, an interim provision stated “state and local officials must conduct background checks of prospective firearm purchasers.” This meant local law enforcement was being told by the federal government to carry out background checks on those purchases. Sheriff Joe Printz was one of two sheriffs to bring separate lawsuits stating this requirement was a Tenth Amendment violation because it was attempting to force state officers to enforce federal laws.
The case went all the way to the Supreme Court of the United States, where it was ruled it was indeed a violation of the Tenth Amendment for the federal government to compel states to enforce federal laws. In the ruling, the concurring Justices found there was no historical evidence that Congress ever had the power to compel state executives into federal service and they could not do so then. Read the full opinion here.
Printz has set some precedent regarding whether the federal government can force states to enforce federal laws. In a broad sense, that is how case law is made and precedents are set. Loopholes are found, unique situations are used, and lawyers fight to clarify a law.
The idea behind these gun rights sanctuaries would benefit greatly from further case law to back it, and the only way that’s going to happen is if it’s taken to court.
Are Second Amendment Sanctuaries Real?
From a legal perspective, yes, because the statutes themselves are real. In terms of enforceability…we don’t know. It is still unclear whether Second Amendment sanctuaries will enforce federal laws that are found to be constitutional.
One way change can occur is by what’s happening now: laws are being passed by various states that say they refuse to enforce any federal law they feel is unconstitutional. That tends to include a lot of the federal gun laws. This raises the question of who has the legal authority to decide which laws are unconstitutional. As stated above, only the federal courts have the power to declare laws unconstitutional. A governor, state, or municipality does not have that ability.
When we asked former attorney Michael Branson, now of SwampFox Optics, he explained it this way . . .
Any new law usually has some questions that follow it, in terms of ‘how will this be interpreted’ or ‘how will they enforce that part of it,’ and there are always scenarios where people ask ‘how would the courts apply this part of the law if that scenario happened?’
Branson went on to say . . .
The answer is, we don’t know. Until someone has a really bad day, goes to court over it, loses, has the money to actually pay for an appeal, gets up to the appellate level and uses this particular lawyer to put the case in front of those particular judges, who will then write whatever they think is best at that particular time, we don’t know.
Emily Taylor is a partner with Walker & Taylor, PLLC.
Illegal Alien Sanctuaries seem to have more actual effect on the way things work than Second Amendment Sanctuaries.
Ms. Taylor – “You can read about the process here.”
Was this to mean within the article, or was “here” meant to be a link?
The first rule to understanding/interpreting “the law”: it depends.
They carry no more weight than “We the People” put behind them. Just like the 2nd Amendment. They are merely words written on paper. That carry no sway against those who choose to Ignore Them and Their Meaning. Whether that be ordinary citizens or elected elites driven to Delay, Deny or Destroy Constitutional Rights. Without the Will of Citizens to see that Their Rights are Duly Provided for. They are as worthless as soiled toilet paper.
By the same token Gun Control has much less worth than used toilet paper. Those that desire Gun Control need hired hands like nazis and the KKK or those who might as well be nazis and the KKK to do the dirty work.
Like mini mike and shannon watts are going to be on point leading the charge…ROTFLMAO
“…Gun Control has much less worth than used toilet paper.”
Used TP actually has real monetary value, as a fertilizer… 😉
Only if you elect a sheriff and elect local leaders who will back it up. Or you can go the other way.
“Why It’s OK Not To Vote – Katherine Mangu-Ward” video 1 hr long
Remember when Libertarians praised the police chiefs who stated they would refuse to enforce drug laws.
…Does anyone want to put weight/force behind it when the feds/state test it is the real question.
Lord knows we wouldn’t support the one who will. We’ll spend more time trying not to ‘tarnish’ our image to the media that already lies and twists our actions and protests. That’s our problem.
If anything, sanctuary ‘laws’ are pointing out who our friends and enemies are within a state.
Lance…………In Texas, no city,county,state police can assist the federal tyrants from enforcing any anti second amendment laws nor can they use any city, state or county jails.
As long as the follow Texas law, but if push comes to shove. Who knows who they’ll follow. Never underestimate people’s ability to stab you in the back while smiling and shaking your hand.
Et tu, Brute
The links provided in the article are, indeed, worthwhile reading.
From the readings (among others not cited), one cannot help but reach the conclusion that the constitution does not constrain the federal government (“supremacy” clause), but merely encourages a never-ending game of “catch me if you can”.
The 9th and 10th Amendments are also not constraints, but a declaration that the then States retained the authority to challenge the central committee when “caught”.
Thus, the officials (elected or otherwise) of the federal government are not at all constrained by the constitution, but are incentivized to “see” what they can get away with.
The constitution is not a bulwark against tyranny, but merely a remedy after the fact.
The supremacy clause contains a black-letter caveat; only federal laws that are made “in pursuance” of constitutionally delegated powers and comport with constitutional limitations are the supreme law of the land. If they do not, they are not, period.
In this sense, those ‘sanctuary’ statutes that stipulate that this condition has not been met are on solid ground.
And no, the Constitution is not moot until and unless the SCOTUS says what it means – it was constructed to convey a clear ‘public understanding’ of its meaning, i.e. to state its meaning in publicly understood language, that needs no ‘interpretation.’
To insist otherwise is nonsense.
The constitution, Section 8, Clause 1, empowers Congress to provide for the general Welfare of the United States. Thus, government has a “compelling interest” in providing for the general welfare through a series of safety legislation mandating whatever measure is considered necessary to protect public health. Covid mandates and gun control are providing for the general welfare of the states. And such legislation is “in pursuance” of constitutionally delegated powers.
Since no amendment is absolute, the BOR cannot completely override the power of Congress when a “compelling interest” of government exists. It all “depends”.
Not if said laws defy black-letter constitutional proscriptions.
Remember, the amendments were submitted and ratified AFTER the Constitution proper, which means that limitations contained therein supersede other constitutional provisions.
“We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing’ approach. The very enumeration of the right takes out of the hands of government … the power to decide on a case-by-case basis whether the right is really worth insisting upon. . . The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people[.]” – D.C. v. Heller (2008)
“…which means that limitations contained therein supersede other constitutional provisions.”
Not exactly, unless the BOR are absolute. The first amendment is not absolute, nor are the fourth, fifth, eighth, ninth and tenth. If the courts ruled those amendments absolute, mere legislation on the subject, regardless of intent or motivation could be overruled quite quickly. Indeed, jurisprudence on those amendments might be remarkably small.
Once the federal courts determined that no natural, human or civil right is absolute, the playground was opened.
I must have missed the ‘no amendment is absolute’ clause in the constitution. Could you direct me to it?
People always use the “you can’t yell fire in a crowed theater” example to prove rights have limits. That phrase originated in the Supreme Court case Schenck v. U.S which established the “Clear and present danger” doctrine. This doctrine supports the concept of prior restraint which says the government can prohibit certain speech.
However, the Supreme Court overturned that doctrine in Brandenburg v. Ohio (and New York Times Co. v. United States) and replaced it with the “Imminent lawless action” doctrine. Under this doctrine the government can’t prohibit speech (censorship) but it can punish you after the fact, if you publish Top Secret papers for example.
So from a constitutional standpoint, you can yell fire in a crowded theater.
“Could you direct me to it?”
The SC determines what the constitution “says”. Obvious by operation, nothing in the constitution (especially the BOR) is absolute.
As individuals, we can decide that we will only follow the constitution when it suits us, or in a manner that likewise suits us. However….we are not immune to the full force of federal enforcement measures. You only have those natural, civil and human rights you can personally, and successfully defend.
Being an absolutist is difficult to justify, because such a stance has very uncomfortable implications. Anyone who believes there is any exception to any principle is not an absolutist. For instance, it should be understood that the vast number of gun owners do actually “believe in “common sense gun control”. The only difference between those, and the anti-gun mob is the direction and degree.
In reality, not theory, there are relatively few 2A defenders who do not subscribe to the idea that felons, drug users, blind people, those confined to mental institutions and prisoners should not have legal access to guns. Why is that? Well, “It’s just common sense.” This results in statements such as, “I believe in the Second Amendment, but….” , just like gun-grabbers.
“The supremacy clause contains a black-letter caveat; only federal laws that are made “in pursuance” of constitutionally delegated powers and comport with constitutional limitations are the supreme law of the land. If they do not, they are not, period.”
Thank you for stating that. I had scrolled down here to say exactly this, but you beat me to it.
Constitutionality is subject to opinion (not to mention that ‘pursuant’ is vague). And our opinion doesn’t count.
Acting IAW our opinion does not protect us from the full weight of federal enforcement of their opinion.
None of this means anything if Tyranny Rules the day. Words on paper have never stopped Tyranny.
Political power grows out of the barrel of a gun. Mao Zedong
they most certainly will when “the national divorce” or “realignment of states” happens or whatever they call it
meaning that the 2a sanctuary areas will face considerably less security and lawlessness issues than the others during that crucial period of time known as “discontinuity in government” or to some as “shtf”
Well the answer should be simple, when States refused to enforce and cooperate with the Federal Government on illegal immigration they got away with it without any penalties that i am aware of so why should it be any different for States and the 2nd Amendment?
Case in point, there are only about 3 million regular military, reservists and law enforcement in the USA. There are over 150 million gun owners and enough firearms to arm every man, woman and child in this Country. Of those 3 million regular miliary, reservists and law enforcement many of them are not trained to confiscate firearms nor would many of them obey an Unconstitutional or illegal order to do so. So the overall number of available people to come to your house and take your firearms is extemely limited.
Before all this nonsense started I asked two Colorado Police Officers, one from Boulder City and another from Longmont what they would do if ordered to go door to door collecting firearms. One said he would call in sick and the other said a lot of police officers would get shot. So therein lies your answer to sustaining the 2nd Amendment as intended. If they come to your house shoot them and after they see we mean business and are not going to put up with this sort of thing, trust me, they will stop. Enough of this lawlessness by politicians and leftist thinking cops. They are not even getting shot at by antifa and BLM and that has been enough to keep them from doing their job. For the record I back the blue and the miliitary but wil not do so in cases where they disregard the Constitution of the USA.
You back the blue, but if they come to my house, you say shoot them.
What a dumbfuck.
I don’t trust the government but I trust it’s armed enforcers.
There could probably be a few “door-kickers” in a civilian disarmament scheme, but with the advancement of technology and our dependance on all things computer driven, a few key strokes on a remote keyboard would bring most into compliance. Turn in your guns or,,,, we shut off your utilities, freeze your assets, you car is booted and towed when you park at the local grocery store, you couldn’t get a loan, your Children are to be dismissed from school etc. Sure some folks living “off the grid” would endure, but most I suspect would cave to the pressure, and choose to have their lives back to some semblance of order,, albeit without firearms,,, and all without firing a shot or scratching a door.
“…a few key strokes on a remote keyboard would bring most into compliance…”
No, no, no. There must be forced confiscation. That is the trigger moment everyone keeps waiting for. There must be an opportunity for patriots to rise up, en masse, and take on the government.
How long do you think until people get seriously ticked off and start taking matters into their own hands?
Watch Youtube for a bit, people lose their bloody minds in road rage/supermarket fights/ect and you believe that cutting off their money and utilities will make them comply? over guns that have been in the American culture since the beginning?
Good luck with that is all I can say.
The non-compliant in regards to *anything* the uni-party wants will be ostracized from *their* society. We are already seeing it with the bird-demic and the peck; those that don’t get it are now being denied healthcare by the very same people who were shouting it was a human right.
In the coming years we will have negative rates and only computer based dollars. People won’t be able to pay their taxes without it and they won’t be able to obtain it at all without being registered to the ruling body, whatever that body will be. The king’s men don’t accept barter and having anything considered a currency will be terrorist activity.
One should reclaim as much autonomy as they can. No debt, have plenty of money outside of banking, have plenty of ammo, the means to build (power tools without activation chips or in the future, OTA / anti-theft systems.)
People will indeed willingly turn in their weapons to keep food on the table, even if it’s buying “peace in our time”. Right now, the sheep are being separated from the wolves; likely graded by who complies willingly, who needs discomfort to comply, who needs coercion to comply; until those that simply won’t comply are identified and dealt with.
Even the wilderness and a backpack won’t be a safe place with the rate surveillance tech is expanding.
This kind of paranoid BS will never become reality. Millions of people with guns would never allow it. Millions of people without guns wouldn’t chose or allow this kind of existence either.
In order to get to this type of 1984 world where freedom is nonexistent, there would be a sequence of events that wouldn’t happen overnight. People wouldn’t sit by doing nothing allowing it to happen.
Some people posting here believe the govt/police/anyone that disagrees with them are out to get them and they are smarter than the average person who isn’t ‘enlightened’ enough to see it coming. They’re not as smart as they think.
” Millions of people without guns wouldn’t chose or allow this kind of existence either.”
Have you heard of Australia and seen what they’re willing to tolerate over a pretty mild, though admittedly novel, respiratory virus?
This can and does happen if the dominos all the right way. The price of freedom is eternal vigilance, something we gave up on almost immediately after winning WWII.
You should move to a small town where the rule of law still exists.You will not survive here. You’re not a wolf and this is a land of wolves now” comes to mind. I just strike the first sentence because it no longer really applies.
“This can and does happen if the dominos all the right way.”
It won’t happen here. There are more wolves here than you think.
Last time I checked, we’re not Australia.
Cato, the events did happen effectively overnight, over the course of 18 months, and still happen to this day while the people allow it with only meager resistance. Our betters are testing the waters to see just how much they can get away with. Freedom in the western world is taking a hit to rival that in 2001. We are long passed 1984.
The truth is, millions of gun owners have already allowed it. There are still several hundred political prisoners sitting in DC right now and I see no organization to change that. Millions of people with guns are individualists while their opposition are collectivists; this is likely the greatest Achilles heel.
Many people did not refuse the peck in order to keep their jobs, they did not refuse muzzles or swabbing; they did not and still don’t refuse the abusive treatment of their own children. If common men won’t refuse their own children being abused by government; I know the masses will not refuse searches of their homes and vehicles for weapons either; nothing is off limits.
I can’t speak for you but I actually have to live with the very real risk of being financially de-platformed by my payment processor and hosting provider. I keep only what I need to pay bills in the financial system. You call it paranoia, I call it prudence.
Home Depot already sells power tools that require activation at the register. This absolutely will evolve into a cellular off switch under the current guise of anti-theft; it will be for your own good. It’s integrated into the controller board on three phase tools and the batteries. Their continued use will eventually be tied to your social credit score and the continued rent payments. You will own nothing and be happy.
The globalists will win on the earth for a short time, there will be a world government before it is set right again. What we see today is just a taste of what is quickly coming.
Yes, there may be wolves in America but the wolves are leaving for a forest with greater freedom and autonomy; I know I am.
Double post but I will also add that Milwaukee already has geo-fencing and remote lock-out on their tools. It’s one step away from the manufacture going woke and locking customers out of their own property. See John Deere and people being locked out of their own tractors for trying to fix them.
You made a lot of huffing and puffing but history has already proved you wrong many times over. When the Feds pass a law the State and the People obey “or else” as the Nazi’s used to say and everyone knew what “or else meant”. Ordinary people will not take the chance of losing jobs and their freedom. Some State Officials will make a big huff and puff and when the storm troopers gather the political hacks shut their mouths faster than a cat jumps off of a hot tin roof or scratches his ass. And remember brain washed storm troopers do what they are told they are not capable of critical thinking, the militaries of the world have proven that for thousands of years. Hitler’s death squads and General Westmoreland’s & Julian Ewell’s death squads are very good recent historical examples.
“Ordinary people will not take the chance of losing jobs and their freedom.”
So people will give up their freedom in order not to lose their freedom.
You are a cerebral wonder.
This may be a dumb question, but is there a statute that allows federal law enforcement to be armed outside of federal land? I guess there is, but I’ve never seen that discussed.
“…..gives federal courts the final say on interpreting the U.S. Constitution (Article III also defines “treason”.”
It’s only “treason” if you lose.
“….There is a legal theory called “nullification”
When the DOJ or some other Federal bureaucracy decides to pursue legal action against a State, it’s simple. The State can refuse to appear and there is not jack-all that can be done but shout and bluster. However, the danger is the lack of a willingness on the State’s part to hold firm in the goal of refusal and taking power back under the 10th Amendment.
Did the feds take anything here? No
The article could have been shortened with what it already admitted i.e. that Federal Law trumps State law every time, end of story. Break a Federal Law and you go to prison its just that simple so yes Second Amendment Sanctuary Laws are a joke and have been from the very beginning. If the State fails to act and enforce the laws the Feds will do it for them and you can take that to the bank.
The point is that it forces the federal agents to be stretched thin without having the aid of state and local resources; it makes everything harder to enforce on their end. The federal government is not omniscient can’t enforce what they don’t know.
Federal law superseding state law is a matter of opinion. All that matters is power, everything else is a mere opinion. God rules because he has power, the federal government tramples the people because it has power, the ruling class tells government what to do because they have power. When the people claim their own power once again, combine it with others who do the same, and combine it with the states as well; a different opinion will matter.
The ultimate solution is less federal and governmental power. Unfortunately, rather than people being Americans and restricting government power, they divided themselves into parties and expand government power for their own perpetuity, ideology, and self-enrichment.
A proper government should have to beg the people for temporary (sunset) funding, to build a temporary (sunset) agency, to do what ever it is it wanted to do. It should be powerless without the will of the people. Woe how far we have fallen.
Texas making permitless carry legal has teeth.
Making the state a 2nd Amendment sanctuary means little to nothing in comparison.
Short answer to long article: it depends on the cops in the area. Federal and state laws are still in force for a sanctuary city or county.
In Colorado, most sheriffs and city police don’t enforce the 15 round magazine ban, but they remain illegal on the books, and big box and internet sellers won’t sell them. The magazines are openly and freely available at most local gun shops, and many don’t bother with the pantomime of selling you a “kit” that you assemble. Local politics are fickle, and a new sheriff or a change in policy could go back to enforcing those laws.
Even if local police aren’t going to rat you out for an untaxed NFA, it doesn’t mean an ex, “do-gooder” cop, or nosy neighbor isn’t going to call the BATFE directly and tell them about your self-made machine gun collection. They’ll be happy to do a 3am raid on your house and send you to federal prison without the assistance of the local boys in blue.
“Political power grows out of the barrel of a gun. Mao Zedong.”
100+ million gun owners, and we don’t have the political power to stop the leftists.
Mao could not bend his mind around that.
If a State wants Federal funding
“If a State wants Federal funding.”
Ah, yes; the opioid of the masses.
I’ve chewed on this idea of 2A sanctuaries since they came up.
On the one hand the comparison to illegal immigration or to marijuana are tempting but I think that’s an error because, really, this is a battle of wills and the question is which side has more will. In both of the previously mentioned cases the states and cities didn’t need much will because the Feds basically had none.
The question is how much zeal the US Government would have in going after 2A Sanctuaries and I suspect the answer is “more than they ever did over illegals or pot”. How much more is an open question IMHO. Realistically though it doesn’t much matter. Practically any level of zeal allows this to be won by attrition unless there’s major pushback.
It’s interesting to consider this in the context of the border crisis. Ed Calderon talks about this (in the video below, weird how that just shows up down there) and I suspect that he pretty well lays it out for you. The real question, in terms of the 2A, is the order of operations. If some of what he talks about was to occur in the *right* order it would probably spur the public against the 2A. If it happened in the opposite order it would have the opposite effect. One’s forced to wonder if anyone in that shitshow has a plan in this regard.
Realistically, at this point in time, I think the absolute best we can do is hold the line on the 2A for the foreseeable future. The country has way, way too many other significant problems that, for most people, are/will be far more pressing in the short term. We won’t gain any ground under those conditions but if we’re deft (which, honestly, we’re not) we might be able to prevent the other side from making any gains by taking advantage of various crises that pop up.
“The country has way, way too many other significant problems that, for most people, are/will be far more pressing in the short term.”
A State can refuse to aid in enforcing a Federal law but it cannot actively prevent Federal law enforcement from taking action within the state. Which is all a S.A. Sanctuary law can really accomplish, other than to make a political statement.
Ten years ago the equivalent was the Montana and Kansas ‘firearms freedom’ laws. Both went all the way to SCOTUS and lost. Why should this time be any different?
Do Second Amendment Sanctuary Laws Really Carry Any Weight? – The Truth About Guns