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 do lip service to the gun rights community at large? Before we get into it, 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 do 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.
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.
Has Precedent Been Set for Sanctuaries?
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.”
Are Second Amendment Sanctuaries Worth Having?
The idea behind these sanctuaries is a good one. Standing up for gun rights is always the right thing to do. What are your thoughts on Second Amendment sanctuaries? Let us know in the comments below.
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I see, so then local mayors and governors have no federal right to declare sanctuary cities for illegal aliens then. They then say state and local authorities will not assist federal agents. So the ATF is still free to arrest people in Texas that buy a suppressor made in Texas because federal law trumps state laws.
An interesting twist is a case where a suppressor is made by a company in Texas and ONLY sold in Texas. Wouldn’t that eliminate federal jurisdiction derived from the commerce clause?
What a tangled web we weave when we practice to deceive.
I think it needs to be defined better the legal powers of local laws , state laws and federal laws
The question of whether a federal law is upheld by SCOTUS as constitutional still does not compel states to enforce such laws. Therefore, state sanctuaries in that sense can still exist.
In Answer to David, This is from an attorney friend:
Not quite. It just means the government must use federal actors to enforce the law. So actions would be brought by federal law enforcement and prosecutors.
There is a precedent though in immigration sanctuary cities. But remember, any constitutional argument is subject to restriction if there is public safety or compelling reason to go against the constitution; I.E. the first amendment protects speech but doesn’t protect your right to yell fire in a crowded building. So, even if a sanctuary city of sorts existed for the second amendment, a proposition I doubt even occurs; Scalia himself in McDonald said he would likely uphold laws restricting ownership of an Apache helicopter. (Which shows even arch conservatives carve out limits surrounding the second), its possible such a thing could be detrimental to gun rights; if there are a higher number of gun deaths per capita in such cities, (which is likely, given the greater number of firearms per capita in theory) it would allow for a rather strong argument that they are a threat to the public domain and would result in more legislation against guns, not less.
It’s all theoretical though; the last assault weapon ban expired because to many exist in the wild to effectively regulate, so most regulation on the topic is illusory
It seemed to work for marijuana.
This then leaves open a huge door, 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”). how can “May Issue” states get around the United States Consitution? With the wording “Shall not be infringed.” spells it out quite clearly
The Second Amendment Shall Not be Infringed….
This sort of legal wrangling points out why it is so important to get, and be, involved in the ugly world of politics. While tough to do so and not get muddy one’s self, standing for these Rights, including in particular the 1st and 2nd Amendments,will also stand for a free America. If it ever gets lost, it will never return. Take that first step and do anything you can to help.
I live in Missouri, and I say that the Second Amendment Preservation Act is worth it. If we don’t stand up for our rights, then we will end up like Australia.
It just opens the door for Federal Law Enforcement to bring in more Federal Police to enforce Federal Laws in States that won’t co-operate . I believe that’s why we have so many Homeland Security Officers in Texas.
The best defense of the 2nd. amendment I can think of is, “Without the 2nd. amendment, there is no way to enforce all the other amendments”. “Without the 2nd. amendment, the other amendments would surely be challenged by power-hungry tyrants who would love to see this country destroyed”.
According to the constitution, our Right to defend ourselves comes from the Creator…God…not the federal government. All the Second Amendment is, is a reminder of that to the federal government.
Unconstitutional laws are unconstitutional period. All public servants swear to uphold and defend the Constitution. It is a criminal act under Title 18 Section 242 to do otherwise. Federal law and State laws or Constitutions that are in conflict with the Constitution are unconstitutional. Judges of the states are bound by the Supremacy Clause to follow the Constitution over laws that are contrary to the Constitution. A public servant is required by oath to always conduct themselves in a constitutional manner! Is it not interesting to note that of all the original 10 Amendments in the Bill of Rights, the only one that has the phrase “Shall not be infringed” is the 2nd Amendment? Of course one has to be intelligent enough to understand what “Shall not be infringed’ means. The 10th Amendment does not give states or local jurisdictions room to enact and enforce laws contrary to the Constitution. If one wishes to argue that the Bill of Rights is a limit only on the Federal Government then The Bill of Rights can be ignored by the States. Consider the implications. It is not a café’ menu. It is either all or nothing. No one needs permission to exercise a right unless the private property owner says differently and then we have the right not to go there, but then again the Federal and State think they can extend private property doctrine to land owned by the taxpayers. If taxpayers paid for it i.e. own it then ALL of OUR Rights Apply there also! The Bi-Laws of this Country i.e. The Constitution Rule on that property. Time to quit accepting compromise. Anyone who violates your rights is a Criminal!
Sadly, even though the Constitution is the supreme law of the land and government officials swear to uphold it we are inundated with activist judges legislating from the bench with no consequences, politicians blatantly legislating un-constitutional laws or refusing to enforce constitutional laws also with no consequences. We are losing our constitutional rights one piece at a time and if we the people don’t stop it we will one day find it is too late..
We wouldn’t be having these discussions if it were not for our corrupt political system. Politicians have two jobs: job #1 is to get elected…job #2 is to get re-elected. All other tasks are back-burners. They are in office to become wealthy and will make laws to appease those who put them in office. Until this country starts limiting terms of politicians and stops the flow of private money into political campaigns, all this will continue. If the politicians had to spend their valuable time in office (shorter terms), they would likely not spend it on attacking issue like the second amendment.
The Constitution and Bill of rights are given and shared by all free citizens of the USA. The Government Washington DC ; is violating independent state rights and that of its citizens. The President is the Judiciary leg and is sworn to uphold the Constitution and Bill of Rights as he took an oath to do. He is to make sure our boarders are protected and enforce our Countries boarders and stop illegal immigration. He is also the representation of us to the world. Why his administration hasn’t been brought up on treason at his failure to due the oath he and they swore to is sicking. The House and the Senate do not represent the individuals who they made promises (lies) too do nothing but spend our tax payer money and put on a circus shown for us. They do what makes them rich and not much more. The Federal Government was put in place to meet and make laws to enforce the Constitution to its fullest but they do nothing but pay other countries taxpayer money for bribes. Biden makes us look weak and poor to the world and is fueling in a unspoken future of what could be the fall of a great nation built on a morals and faithfull to to God we have trusted in on the backs of brave men who believed in Freedom and knew that giving that to our Children was worth their lives and all our lives. Federal judges in the states simply do what they are commanded by their party leader and strike down any motions or laws they do not want in our individual states. They are over reaching the reason they were put there and over taxation with flooding of boarders they are now more then ever trying to take all of our rights by any means possible. Its to the point that our Governors need to start banding together against this over reaching Swamp thing and unite and put the state rights back into place and remove half of these commities that spend money studying and releasing things that most Americans would not be a part of. Tired of the false name calling and the false news making up stories with no proof and no reproduction of their actions. They are trying to divide us and then take our only means of protection and my friends if that happens our children will never live the life they have dreamed of and we will never see freedom again until we draw our last breath.
Based on the article on sanctuary 2A states, what it appears to is state and local officers are prohibited from assisting federal agents enforce federal 2A laws and would probably be legal. Federal agents are authorized to enforce specific federal. Vice-versa, federal agents are not authorized to enforce state laws, unless under state law federal agents were classed as “peace officers.” I am long retired but had served in many states around the country. In some states we had peace officer status and in others, not. I guess it works both ways.
Sanctuary states, cities, counties, and Article V of the Constitution are the only way we will regain our constitutional rights. The Federal government is completely out of control and must be reduced in power. Sanctuary areas, legal or not, do afford those citizens the rights they should have. Enforcement is at the local level. The Feds and states can pass anything they want but if local enforcement agencies do not agree, bad law will not happen.