Joyce Lee Malcolm is a Firearms Research Center Fellow and Professor Emerita at the George Mason University Antonin Scalia Law School. She is a historian and constitutional scholar active in the area of constitutional history, focusing on the development of individual rights in Great Britain and America.
No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. The constitutional theory is that we the people are the sovereigns, the state and federal officials only our agents.
Cooper v. Aaron, 358 U.S 1 (1958).
While the new administration is preparing to dismantle sanctuaries for illegal immigrants, supporters of Second Amendment sanctuaries need not worry. When other “sanctuaries” are gone the Second Amendment sanctuaries and the right they protect, will survive. Here’s why.
There is no legal right to enter the United States. The creators of the city and state sanctuaries that shield illegal immigrants from federal law enforcement out of a sense of generosity never expected to be responsible for caring for the millions of people who entered the country illegally in the past four years. They are swamping homeless shelters and hotels, need basic necessities, cost their hosts millions of dollars, while adding to crime and drug problems. California became a “sanctuary state” in 2017, before the current administration opened the southern border. Los Angeles County alone now hosts some 800,000 illegal individuals. Nevertheless, the Los Angeles city council is rushing to be included in the novel program that allows illegal immigrants from several countries to stay in its city “temporarily.” New York City’s politicians and mayor on the other hand are desperate to reverse their city’s sanctuary laws. The cost has been too high. New York’s now has some 225,000 illegal immigrants depending on its largesse. As the incoming administration vows to deport these people, governors of several states vow to protect “the rights” of these residents, whatever those are, challenging federal authority and the public mandate for their eviction. Many sheriffs across the country have agreed to help enforce the deportation effort. Americans are holding their collective breath as the incoming administration launches its plan to deport millions of illegal immigrants.
Sanctuaries for other controversial issues also have been created. Eleven states have declared themselves sanctuaries for minor children fleeing from their parents to get a sex change. Other states are banning these procedures. The Supreme Court has just heard the question of whether opposing sex change for minors is violating a constitutional right.
In 2010, when Virginia counties began to create Second Amendment sanctuaries, the state’s Governor and Attorney General had approved sanctuaries for illegal immigrants but insisted there was “no legal force” to the Second Amendment sanctuary because local constitutional officers “cannot nullify state law” and must comply with the state’s gun violence prevention measures.” Are they correct?
Second Amendment sanctuaries, unlike immigration sanctuaries, have three layers of defense. First, there is a specific constitutional right of law-abiding citizens to keep and bear those arms in common use for self-defense and other lawful purposes, upheld by the US Supreme Court in three landmark opinions, District of Columbia v. Heller, McDonald v. City of Chicago, and New York State Rifle & Pistol Association v. Bruen.
Forty-four state constitutions also list a right of law-abiding citizens to keep and bear their private arms (although some state high courts have effectively nullified their states’ provisions) and five states exempt that right from a governor’s emergency powers. Since 2010, when four states declared themselves Second Amendment sanctuaries, more than 2,000 counties and over a dozen states have refused to use their assets to enforce infringements on the right.
Second, every federal and state office-holder, including sheriffs and police, take a solemn oath to preserve, protect, and defend the American Constitution. Second Amendment sanctuaries are in accord with that oath to protect that right from federal, state, or city laws that would curtail them.
Does that matter? Won’t first responders simply enforce gun control laws? Happily, no. Many who swore to protect constitutional rights feel an obligation not to do so. Among the most outspoken are the nation’s sheriffs who, unlike police, are elected. In September the American Sheriff Alliance comprised of sheriffs’ associations from across the nation called on the White House and Congress to halt the threat to public safety from unprecedented illegal entries into our country. Sheriffs routinely say they won’t enforce gun laws.
Finally, citizens have shown they will not obey laws that curtail their gun rights. Widespread public refusal to obey gun confiscation and registration measures passed with great fanfare by some states has been generally hidden by state officials and virtually unremarked by the media. After the shooting at the Sandy Hook School in Connecticut in 2012 New York State quickly passed the SAFE Act, requiring gun registration and banning “assault weapons”, a category stretched to include millions of popular semi-automatic hunting rifles and semi-automatic handguns, even shotguns, if they had a single listed “military-style” feature. Owners who did not register their guns with police were guilty of a felony. It took a lawsuit and two years of litigation to force state police to release the data on compliance with the gun registry. Only 44,000 of the proscribed guns of an estimated one million in New York State had been registered, a compliance rate of about 4 percent. Connecticut gave gun owners of “assault weapons” until the end of 2013 to register their guns with the police. By the deadline state police had received 47,916 applications and another 2,100 applications had been started, but the National Shooting Sports Foundation reckoned there were some 350,000 of the banned weapons in the state.
In sum, the Second Amendment sanctuaries are protected by the American Constitution, the oaths office holders take to it, and finally by the people themselves. They will stand as long as they are needed.