After Texas Gov. Greg Abbott declared that one of his top legislative priorities this year is turning the state into a Second Amendment Sanctuary, I predicted that other states would soon follow suit. Now several Republicans in Arizona have introduced legislation that would bar the state from spending any resources to enforce unconstitutional federal gun control laws.
The bill, filed by State Rep. Leo Biasiucci, R-Lake Havasu City, and known as the “Second Amendment Firearm Freedoms Act,” is a simple piece of legislation. In fact, in it’s current form the bill is only a couple of paragraphs long.
AN ACT, LAW, TREATY, ORDER, RULE OR REGULATION OF THE UNITED STATES GOVERNMENT THAT VIOLATES AMENDMENT II OF THE CONSTITUTION OF THE 10 UNITED STATES IS NULL, VOID AND UNENFORCEABLE IN THIS STATE.
2. THIS STATE AND ALL POLITICAL SUBDIVISIONS OF THIS STATE ARE PROHIBITED FROM USING ANY PERSONNEL OR FINANCIAL RESOURCES TO ENFORCE, ADMINISTER OR COOPERATE WITH ANY ACT, LAW, TREATY, ORDER, RULE OR REGULATION OF THE UNITED STATES GOVERNMENT THAT VIOLATES AMENDMENT II OF THE CONSTITUTION OF THE UNITED STATES.
I hate to say it, but this language is more symbolic than anything else. If a gun control law has been declared unconstitutional by the Supreme Court, then it’s not going to be enforced regardless.
A more meaningful way of approaching the issue would be to take a page from California, oddly enough. The sanctuary state bill limiting law enforcement cooperation with ICE that was signed by then-Gov. Jerry Brown has been upheld by the federal courts, and could easily be used as a blueprint for turning a state like Arizona into a Second Amendment Sanctuary.
Rather than trying to base enforcement (or lack thereof) on the constitutionality of any new gun control law, legislation could declare or specify that local or state law enforcement will not work or assist federal agencies in, say, investigating or prosecuting any non-violent, possessory federal firearm offenses involving legal gun owners.
Not only would the legislation have more teeth than the bill currently filed, by mirroring California’s sanctuary state language on illegal immigration it would have a much better chance of surviving court scrutiny. As law professor Robert Anthony McReynolds has explained, the Supreme Court has already weighed in on the issue of local enforcement of federal laws, and found room for states to decline to participate.
The U. S. Supreme Court has weighed in with two key decisions related to understanding the voluntary language of federal laws as it pertains to state and local law enforcement acting as an agent of the federal government. In Printz v. United States, the question before the court was whether language in the amended section of the Gun Control Act of 1968, known as the Brady Act, could command local law enforcement to conduct background checks on behalf of the U. S. Attorney General who was charged by the Brady Act with creating a national system for conducting background checks of individuals seeking to purchase handguns.
In Printz, the petitioners argued against the idea that the federal government could compel states to administer federal programs and that such attempts by the federal government were relatively new; however, the U.S. government responded that there is a long history of the federal government directing state governments in just such a manner.
In reviewing the historic examples provided by the government, the Supreme Court stated that each instance “at most…was originally understood to permit imposition of an obligation on state judges to enforce federal prescriptions.” (Emphasis in the original.) However, as spelled out in the Constitution, this imposition on judges is not translated to “imply a power of Congress to impress the state executive into its service.”
The Supreme Court went further by dispelling the idea that state governments were “incorporated into the operations of the national government” by being “rendered auxiliary to the enforcement of its laws” by explaining that such a theory would negate the need for there to be language in laws directing state governments to act on behalf of the federal government.
The Supreme Court wrapped up Printz by explaining that there has never been precedent for federal direction of state legislatures and that the only duty owed by the states to the federal government is that the states do not construct legislation that would obstruct the operations of the federal government. The Court’s reasoning in Printz distinguishes the obligation placed on state judges by federal law and the ability to place similar obligations on other state agencies.
In other words, states or localities can’t legally impede the enforcement of federal law, but they don’t have to be a party to enforcement.
I happen to believe that the Second Amendment Sanctuary movement can be a valuable tool for gun owners in the coming years, but the language used to establish those sanctuaries is critically important. If Arizona lawmakers are serious about turning their state into a safe haven for the right to keep and bear arms, I hope they’ll revise the language in the new legislation to make it less symbolic and more substantive in its potential impact.