Excerpted From: Nicholas J. Johnson, Second Amendment Sanctuaries: Defiance, Discretion, and Race, 50 Pepperdine Law Review 1 (January, 2023) (668 ) (Full Document)


NicholasJohnsonThe Second Amendment Sanctuary (SAS) movement is a form of pushback by gun owners and their public representatives against federal and state firearms restrictions. 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. Enforcement by federal officials is still possible in these circumstances. But the federal government cannot compel state and local officials to enforce federal rules. 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.

This Article demonstrates that even though Discretion Sanctuary policies may lack formal validity, they might still achieve broad practical effect. The tool for achieving that practical efficacy is the same sort of discretionary nonenforcement that state and local officials have deployed in opposition to marijuana restrictions, immigration laws, and quality-of-life regulations that fuel mass incarceration.

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 discretionary nonenforcement is contingent on an array of variables. Some of those variables defy systematic analysis. For example, different officials will have different interpretations of, and commitments to, various SAS policies. Those idiosyncratic differences will affect discretionary nonenforcement decisions in unpredictable ways.

However, other inputs are more structural and allow more systematic observations about the operation of discretionary nonenforcement as a tool for effectuating SAS policies. 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. This Article will show how those laws present recurring invitations to implement SAS policies through discretionary nonenforcement. The second set of inputs derives from resistance to laws regulating immigration, drug use, and petty crime. Tactics and practices already deployed in those areas present transferable models for effectuating SAS policies through discretionary nonenforcement. A final set of inputs surrounds the fact that many gun violations occur in combination with other criminal violations. Those combination cases present a spectrum of recurring complications that tend to discourage discretionary nonenforcement and cut against de facto implementation of SAS policies.

This Article proceeds in five parts. Part II positions the Second Amendment Sanctuary movement as a form of “official defiance” that supplements the “private defiance” phenomenon that I have elaborated in prior work. Part III describes the differences between Constitutional Sanctuaries and Discretion Sanctuaries. It shows why Constitutional Sanctuaries enjoy solid de jure validity and why Discretion Sanctuaries do not.

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. That federal example introduces an important additional insight; it demonstrates how discretionary nonenforcement--which presents initially as a tool for implementing SAS policies in Discretion Sanctuaries--can also serve as an option for effectuating SAS policies in Constitutional Sanctuaries. Part IV further posits that in some cases, officials who have the option of creating legally enforceable Constitutional Sanctuary policies will nonetheless opt for discretionary nonenforcement because it is less confrontational. Part IV projects that, because of its comparatively covert nature, discretionary nonenforcement 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 discretionary nonenforcement to effectuate SAS policies. The first set of inputs surrounds the peculiar nature of the gun laws that Second Amendment Sanctuaries tend to resist. Part V shows how these sorts of laws present a spectrum of more or less compelling invitations for discretionary nonenforcement. The second set of inputs derives from experience with defiance of laws governing immigration, drug use, and petty crime. Part V discusses how tactics and practices already deployed in those areas present transferable models for effectuating SAS policies through discretionary nonenforcement. The third set of inputs stems from the fact that many gun violations occur in combination with other criminal violations. Part V shows how the complexities of these combination cases tend to discourage nonenforcement and undercut SAS policies. The discussion of combination cases in Part V ends by acknowledging the concern that hinging SAS policies on enforcement discretion also invites bias.

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.

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While the experience with Second Amendment Sanctuaries is just unfolding, enforcement discretion promises to be a powerful tool for practical implementation of SAS policies. This evident utility of enforcement discretion prompts several lingering questions and opportunities for future work. One question is whether discretionary nonenforcement will turn out to be more useful than formal SAS policies. 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 nonenforcement be diminished by the complexities that combination cases present?

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 opportunity to compare results between jurisdictions that adopt various types of SAS policies and jurisdictions that do not.

Professor of Law, Fordham University School of Law.