While the Second Amendment Sanctuary movement has picked up steam yet again after the inauguration of Joe Biden, there are still some pockets of opposition to the idea, including Ohio’s Ross County, where commissioners recently decided to reject the requests by many residents to adopt a 2A Sanctuary resolution. In fact, it’s the second time commissioners have done so; previously rejecting a similar push several months ago.
“Not much has changed since the last consideration,” said Commissioner Doug Corcoran. “We took an oath to uphold the Constitution of the United States and the Constitution of Ohio. I don’t feel like this resolution is necessary, I think it oversteps. It assumes we have the ability to declare laws unconstitutional — we do not.”
Operating under the executive branch of government, the commissioners are in agreement that their duties are to uphold laws that have already been reviewed by the legislative and judicial branches. Therefore, they will not be taking any action on the sanctuary declaration.
Although the board is in support of the Second Amendment, the commissioners are not lawmakers and they have a responsibility to abide by the law and state statute, according to Commissioner Dwight Garrett. Furthermore, even if the proposal was passed, the state has the authority to overrule it.
Now, I haven’t seen the proposed resolution that the commissioners rejected, but even if there were problems with the text, those could easily be addressed. And contrary to the opinion of the commissioners, they have no duty to help enforce or uphold any federal gun control law. In the Printz case, decided back in 1997, the Supreme Court made it clear that state and local law governments or agencies cannot be compelled to federal duties under the Necessary and Proper clause of the Constitution.
This blow for federalism helped to create the sanctuary city (and now state) movement when it comes to illegal immigration, but there’s nothing stopping pro-Second Amendment politicians from taking the same position in their counties.. other than their own unwillingness to do so.
A resolution or ordinance that stated no local funds would be used to enforce a federal ban on commonly owned firearms and ammunition magazines, for example, would fit squarely inside the Court’s opinion in Printz. In fact, counties, cities, and states could go even further and specifically bar law enforcement agencies that they fund from not only enforcing any new federal gun control laws, but cooperating with federal agencies on enforcement of those laws as well.
Now, the devil’s in the details, and with language that vague there might be issues with inter-agency task forces pursuing violent fugitives or other genuine concerns, but that can always be addressed with a little more legalese. Instead of a blanket prohibition on cooperating with the feds, for example, Second Amendment Sancturies could specify that the cooperation could only take place in pursuit of an individual or individuals suspected of a crime of violence, or after a felony conviction or adjudication of mental illness; but not for non-violent, possessory federal firearm offenses involving legal gun owners.
I’m sure there are plenty of attorneys who could come up with even better language, but the point is that these commissioners are simply ducking the issue by claiming it’s outside of their area of responsibility. County commissioners in Ohio are responsible for taxing, budgeting, appropriating funds for county agencies, so barring the use of county funds for the enforcement of new federal gun control laws is well within their purview.
I understand that, particularly in rural areas, many county commissioners or small town mayors may not want to get involved in larger political debates. I watched it happen in my own county during the Second Amendment Sanctuary debate in late 2019. I actually appreciate the desire to perform the nuts-and-bolts basic duties of managing a county or locality without grandstanding, but this is an issue that’s going to continue to come up across the country in the months ahead. In fact, when (not if) Joe Biden moves forward with his gun ban plan, the 2A Sanctuary movement is going to absolutely erupt.
My advice to these county commissioners is simple. Look to the Left’s existing example and adopt your own resolutions and ordinances based on the language of sanctuary cities for illegal immigrants that have withstood court challenges in the past. Personally, I’m not as much of a fan of the so-called Second Amendment Preservation Acts like the one that passed the Missouri House just a few days ago, in large part because they’re at least as much an experiment in expanding the Tenth Amendment than protecting the Second. I’ve got no problem with increasing federalism (in fact, I’m generally in favor of it), but the SAPA isn’t likely to withstand a legal challenge given that it actually seeks to invalidate federal law within Missouri’s borders.
I prefer a strategy that may offer less theoretical protection (remember, under Printz federal agencies can still enforce federal law, they just can’t demand state and local officers assist) but a much better chance of success in court. Missouri’s SAPA bill does at least contain a severability clause that could allow courts to throw out the language barring federal agencies from enforcing federal gun control laws in the state while leaving in place language that bars local, county, and state police from doing so
In that case, though, it’s still going to be a judge (or potentially, Supreme Court justices) that will determine whether or not the severability clause actually comes into play, and there’s no guarantee that the courts will keep part of the law intact instead of just tossing it all aside.
Having said that, one of the really unique things about the Second Amendment Sanctuary movement is that it’s truly grassroots-driven. There’s no one 2A organization that’s really pushing these resolutions, ordinances, or state legislation, and there’s no model language for politicians to adopt and introduce in their own communities. In fact, I suspect that any organization that tried to take ownership of the movement would face some insurmountable challenges. It’s a very decentralized movement which in turn fosters a culture of experimentation, and I think that’s a really good thing. It’s also, however, an anomaly in our political system.
I have my particular point of view on what the most effective 2A Sanctuary language is, but that’s my opinion, not Second Amendment dogma. The goal is to put language in place that actually matters and isn’t purely symbolic or an exercise in grandstanding, but there are multiple ways to get there. Unfortunately, we still need elected officials to do their duty, and not duck the issue by claiming it’s outside of their jurisdiction.
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