A Shot in the Dark: Second Amendment Sanctuary Cities

The recent passage of a gun control law in New Mexico has sparked debate over a new type of “sanctuary city.” The law closes a loophole in background checks and mandates that unlicensed sellers – such as gun shows and other commercial vendors – as well as licensed sellers run background checks on potential buyers. This “gun show loophole” seems relatively obvious and straightforward, and many other states have passed similar pieces of legislation to act upon it. The New Mexico law was signed by Governor Michelle Lujan Grisham on March 8 after passing through both chambers of the state legislature.

Before Governor Grisham even put pen to paper, however, 25 of New Mexico’s 33 counties had approved “Second Amendment Sanctuary Ordinances.” These ordinances, which vary by county but all express the same sentiment, express opposition to the new law and are endorsed by the counties’ sheriff’s offices. In Union County, for example, the ordinance states that the Board of County Commissioners and the Sheriff’s Office “will not authorize or appropriate government funds, resources, employees, agencies, contractors, buildings, detention centers or offices for the purpose of enforcing law that unconstitutionally infringes on the right of the people to keep or bear arms.”

This “sanctuary” rhetoric is a direct provocation of the left, inspired by the use of the term in regards to “sanctuary cities” for undocumented immigrants. The comparison is intentionally inflammatory, and is an attempt by these sheriffs to assert equal grounds of legality for their sanctuary communities. While these declarations could simply reject the state’s laws, their specific labeling of “sanctuary” communities directly reappropriates a word that has been used by the left as justification not to enforce federal immigration laws and policies.

While this municipal rejection of state laws is shocking, it has actually happened in several other states as gun control reform has slowly come to fruition across the country. Oregon and Washington have also seen such ordinances, and are running into similar issues between state and municipal governments. What these states, and others that have experienced similar intrastate issues, all have in common is that they’re divided along partisan lines. They contain liberal urban centers that are large enough to allow Democrats to control the state legislature, but also contain large rural swaths that are predominantly conservative and vehemently oppose the state legislature.

The partisan heterogeneity of these states has caused outlying counties to feel as though they aren’t being represented in the legislature, creating significant friction between the different levels of government. As a result of this tension, large groups of sheriffs and law enforcement officials are refusing to enforce their state’s laws.

While this might elicit thoughts of the balance of powers and self-determination, it’s important to remember that municipal federalism has no backing in US law. The aforementioned Union County Ordinance references New Mexico Public Access Laws and Statutes from prior court battles in an attempt to assert their legitimacy in the argument for power. They include claims that “counties have the power to provide for the safety, preserve the health, promote the prosperity and improve the morals, order, comfort, and convenience of any county and its inhabitants.” They also, predictably, contain references to the Second Amendment and the Constitutional right to bear arms.

"When legislatures and legal scholars point out this lack of solid legal backing, these counties and sheriff’s offices point to the existence of sanctuary cities for undocumented immigrants, where cities refuse to enforce ICE deportation policies. They argue that, if these cities are allowed to choose which laws they want to enforce, then so are they."

When legislatures and legal scholars point out this lack of solid legal backing, these counties and sheriff’s offices point to the existence of sanctuary cities for undocumented immigrants, where cities refuse to enforce ICE deportation policies. They argue that, if these cities are allowed to choose which laws they want to enforce, then so are they.

This argument is inherently flawed; the conflation of sanctuary cities for undocumented immigrants from ICE agents and “Second Amendment Sanctuary Counties” simply doesn’t add up. Sanctuary cities that do not enforce federal immigration law are protected by the 10th Amendment; it has been interpreted in cases regarding federal laws such as Medicaid expansion under Obama to mean that state and local governments are not required to enforce federal law. While federal officials can enforce these federal laws in the states, state and local officials are not required to aid in this enforcement. In terms of sanctuary cities specifically, courts have ruled that sanctuary cities are not forced to comply with ICE policies.

However, sanctuary communities from state laws regarding gun control do not have these same constitutional or legal protections. There is no legal backing for municipalities to refuse to enforce state laws like there is for states to refuse to enforce federal law. These ordinances’ rhetoric surrounding constitutionality is, thus, rather hypocritical considering their lack of constitutional backing.

Far-right movements spearheaded by law enforcement officials, especially sheriffs, also argue that since their states are “officer discretionary states,” they’re allowed to decide which laws to enforce. However, this is a fundamental misunderstanding of the term; if a person breaks multiple laws, an officer is allowed to use his “discretion” as to which charge to arrest them on, but they do not get discretion on which laws they want to enforce. This assertion of superiority over state law has no legal backing.

Regardless of its legal standing, however, these sheriffs and “sanctuary ordinances” present issues for the execution of important gun control laws at a local level. While some sheriffs and communities say that these ordinances are simply symbolic opposition, others assert that they will, indeed, refuse to enforce the newly-passed gun control laws. This is extremely worrisome, as legislatures and leaders depend upon law enforcement officials to be the executive teeth of their laws.

There isn’t much precedent for this kind of issue; sheriffs and local officials tend to generally follow state rules. However, these recent gun control measures have been a sort of breaking point, and sheriffs are creating groups in order to push their agenda. One of these is known as the “Constitutional Sheriffs and Peace Officers Association” (CSPOA), which claims that a sheriff has the final say on a law’s constitutionality in his own county.

While court cases in Washington and other states will decide the fate of the laws and their execution, this issue speaks to a larger fundamental problem of partisan polarization that paralyzes execution at different levels of governance. The use of “sanctuary” rhetoric in inherently inflammatory, and is representative of a refusal on both sides of the aisle to enforce the policies of the other side. Even if bipartisan laws are being passed at a state level, this municipal refusal to enforce indicates yet another place in government where partisan polarization can and will impede legislative progress.

Photo: “Sheriff car

About the Author

Matthew Bailey '21 is a Staff Writer for the US Section of the Brown Political Review. Matthew can be reached at matthew_bailey@brown.edu

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