Sen. Chris Murphy (D-CT) informed the handful of Americans watching CNN last Sunday morning that he thinks law enforcement agencies that don’t fully enforce state or federal gun laws should be stripped of any federal funding they receive, asserting that “The majority of counties in this country have declared that they are not going to enforce state and federal gun laws”. Murphy got even more specific a moment later, telling State of the Union host Dana Bash that “60 percent of counties in this country are refusing to implement the nation’s gun laws.”
When I wrote about Murphy’s deranged comments, I focused more on his fundamental lack of understanding of federalism, or at least his willingness to set his knowledge aside in favor of anti-gun grandstanding and gaslighting, but the folks at PolitiFact decided to investigate Murphy’s claims that more than half the country is simply refusing to enforce state and federal gun laws. Their verdict? Murphy was uttering a half-truth when it comes to Second Amendment sanctuaries.
Nineteen states and Washington, D.C., have red flag laws. They are a relatively new phenomenon, with Connecticut passing the first such law in 1999. Colorado’s law, which went into effect in 2020, allows law enforcement, family or household members to file a petition asking a court to take away gun rights from a person who poses a significant risk to themselves or others.
Despite polls showing strong support for these policies, The Associated Press found that laws faced a backlash by politicians who passed “Second Amendment sanctuary” policies in about 2,000 counties. That number reflects about 60% of the nation’s counties, and was the source for Murphy’s statistic.
We found one other source that backs up this figure from the website SanctuaryCounties.com, which compiles updates on these laws and says it is dedicated to “law abiding, Constitution loving citizens who refuse to simply give up their Second Amendment rights.”
So, 60% of the counties have either passed Second Amendment Sanctuary resolutions or live in states that have passed language at the state level generally declaring their intent not to enforce additional federal (or state) gun control measures. As PolitiFact notes, there are many varieties of Second Amendment Sanctuary language, given the grassroots nature of the movement, and they vary from utterly symbolic gestures to actual ordinances prohibiting local police from enforcing new federal or state-level gun control laws.
In no case, however, do these Sanctuaries refuse to enforce any gun law as Murphy implied, at least not that I’m aware of. Politifact, for whatever reason, decided to look at “red flag” laws and Second Amendment Sanctuaries; a puzzling decision because the application of a “red flag” law depends on a variety of factors, with a sheriff’s views on the law’s constitutionality only one one of them. Still, Politifact found some evidence that “red flag” laws aren’t used as frequently in 2A Sanctuaries compared to other counties.
According to AP, 37 sanctuary counties in Colorado issued just 45 gun surrender orders over two years.
Researchers from the University of Colorado compared the use of the state’s red flag law in 2020 in counties with and without these policies. Of the 37 “sanctuary” counties, 24% had at least one petition filed, versus 48% of counties without these resolutions.
Second Amendment counties may create a chilling effect on filing petitions, they wrote, because people may incorrectly think the red flag laws are illegal.
Shawn Fields, a law professor at Campbell University who wrote an article about sanctuaries for Northwestern University Law Review, cautioned that correlation does not necessarily equal causation.
“Most (Second Amendment) sanctuary resolutions are merely symbolic in nature and have no enforcement mechanisms contained within them,” Fields told PolitiFact. “It is possible the existence of the resolutions are influencing police and prosecutor discretion in enforcing red flag laws. But it is equally possible that the resolutions themselves are merely reflections of a community already deeply skeptical about these types of firearms regulations, which may include police and prosecutors de-prioritizing their enforcement.”
I think Fields is on to something, honestly. It stands to reason that the places where hundreds or thousands of residents turned out in support of Second Amendment Sanctuary measures are also the communities where residents would be least likely to voluntarily use a gun control law like a “red flag” order.
It’s a pretty good piece by Politifact overall, though it’s clear the reporters are in favor of “red flag” laws. I will quibble, however, with one small portion of the PolitiFact check on Murphy’s claims.
How do these resolutions hold up legally?
A county cannot refuse to enforce laws, and the Supremacy Clause of the Constitution requires that federal law take precedence over state and local law.
Brady: United Against Gun Violence, which works to reduce gun violence, says courts have yet to take up a case that would answer whether the symbolic policies have any legal standing.
But the vast majority of sheriffs are independently elected, so they have autonomy to set and enforce policy, said political scientist Emily Farris of Texas Christian University. Farris helped oversee a survey of American sheriffs and found about 38% opposed a requirement to confiscate firearms from people who pose a public safety risk.
A county can refuse to enforce federal law. So can states. That’s the whole reason we have sanctuary cities and states for illegal immigrants. It’s why dozens of states have legalized medical marijuana, and more than a dozen have legalized recreational weed. And yes, it’s why 60% of the counties in the United States have been declared Second Amendment Sanctuaries by their elected officials, either on the local or state level.
They can’t try to stop federal law enforcement from enforcing federal law, but they don’t have to lift a finger or spend a penny of public funds to help. The Supreme Court decision in Printz v. United States was pretty explicit in stating that “the Federal Government may not compel the States to enact or administer a federal regulatory program”. In that case, the issue was the attempt by Congress to force county sheriffs to conduct background checks on gun sales while the NICS system was being established; an imposition of federal authority the Court found to be a clear violation of the Tenth Amendment.
When it comes to county sheriffs enforcing state law, the balance of power tends across the country to shift in favor of the state, but as Farris points out those sheriffs and prosecutors still have the ability to set their own enforcement priorities. We have Oregon sheriffs saying they’re not going to enforce Measure 114, for example, and we have District Attorneys in Austin, Texas declaring they’re not going to prosecute violations of state abortion law. It’s the same principle, and one that both the left and the right use for their own benefit (while complaining when the other side does it). Murphy would never dream of calling for defunding police departments that refuse to enforce federal immigration law, but he’s all on board with stripping funds from county sheriffs in Second Amendment sanctuaries. Murphy’s claim may merit a “half-truth” from PolitiFact, but my verdict is that his position is half hypocrisy/half anti-gun ideology.