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Abstract
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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 immigration sanctuaries, Second Amendment Sanctuaries create an array of official commitments to resist firearms laws of superior jurisdictions. Second Amendment Sanctuaries appear at both the state and local level. State SAS policies are designed to defy federal gun laws. Local SAS policies often purport to defy either federal gun laws, state gun laws, or both.
The commentary so far has focused on the formal validity of Second Amendment Sanctuaries. State and local SAS policies designed to defy federal gun laws exhibit strong de jure validity. They rest solidly on the constitutional principle that state and local governments cannot be forced to implement federal law.8 Enforcement by federal officials is still possible in these circumstances. But the federal government cannot compel state and local officials to enforce federal rules.10 This Article will refer to policies that rest on these federal constitutional principles as Constitutional Sanctuary policies. Local SAS policies that purport to defy state law present a different situation. 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. This article will refer to those local commitments to defy state law as Discretion Sanctuary policies.
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 inconsequential. This Article challenges that conclusion.
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 effectuate sanctuary policies is tempered by the caution that using enforcement discretion in this way also invites the sort of racially biased implementation that has been common in the administration of firearms laws.
Available at: https://digitalcommons.pepperdine.edu/plr/vol50/iss1/1
Second Amendment sanctuaries; Second Amendment sanctuary movement
Language: en |