The concept of Second Amendment sanctuary states has gone from occasional to common rather quickly. As of July 2022, there are 19 states that fall under the category of being a Second Amendment sanctuary, and hundreds, if not thousands, of counties, cities, and towns that have adopted their own local laws on the subject. So what is a Second Amendment sanctuary, and is it a realistic use of the law?
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What is a sanctuary?
It’s commonly believed that the ability to claim sanctuary has its ties in Christianity, but in reality, it goes all the way back to when the Greeks and Romans extended protection to fugitives. Eventually—in the 4th century—it became Roman imperial law. Back then, a criminal could literally murder someone, then enter a church or temple and claim sanctuary. After that, they couldn’t be touched. Of course, the downside was that the only way to survive after that was to go into exile, but at least they weren’t jailed or dead.
Interestingly, History.com reports:
In addition, the church was “deeply suspicious about the punishments meted out by secular authority,” he says. Many early church leaders thought the Roman Empire was too concerned with punishing criminals as opposed to “restoring the moral balance between the wrongdoer and God.” Sanctuary was meant to address the latter. If fugitives claiming sanctuary weren’t already Christians, they were supposed to convert.
Instead of wandering off into the weeds of the linguistic origins of the word “sanctuary,” let’s just say this: it’s a term that’s been used for centuries to define the ability to be untouched by government officials in a certain area.
What’s a Second Amendment sanctuary?
The answer to that question varies by location. Generally speaking, it means that area is being declared free from federal involvement in gun laws. State and local laws still apply. There are countless variations on exactly what it means, so let’s take a look at a few examples.
Texas became a 2A Sanctuary in 2021 when House Bill 2622 became law. Basically, the law is designed to protect residents from new federal gun regulations. The bill making the Lone Star State a sanctuary for firearms owners was accompanied by approximately half a dozen other pro-gun-rights bills. At the time of the signing, Governor Greg Abbott released the following statement:
Politicians from the federal level to the local level have threatened to take guns from law-abiding citizens—but we will not let that happen in Texas. Texas will always be the leader in defending the Second Amendment, which is why we built a barrier around gun rights this session. These seven laws will protect the rights of law-abiding citizens and ensure that Texas remains a bastion of freedom.
The state of Arizona also became a 2A Sanctuary in 2021. In their case, House Bill 2111 specifically prohibits members of local law enforcement from enforcing federal gun control laws. The bill applies to “any act, law, treaty, order, rule or regulation of the US government that is inconsistent with any law of this state regarding the regulation of firearms.” When Governor Doug Ducey signed the bill into law, he stated that the Second Amendment and gun ownership are “an enumerated right.”
What the laws are called depends on the state. In Kansas, the Second Amendment Protection Act was signed into law in 2013. Part of the text of the bill that was made law is:
“Any act, law, treaty, order, rule or regulation of the government of the United States which violates the Second Amendment to the Constitution of the United States is null, void and unenforceable in the state of Kansas.”
Some states prohibit local law enforcement from helping federal agents enforce federal gun control laws while others simply declare themselves a Second Amendment sanctuary. Certain areas say this applies to all federal gun control-related laws while others state it only applies to new legislation. It all depends on the location, which is why a person cannot and should not make assumptions about what it entails. Check your local laws.
What was the first Second Amendment sanctuary state?
Although gun sanctuary states and cities have only gained significant attention in recent years, they aren’t new. The first state to enact a law that technically falls under the description of a 2A Sanctuary was Wyoming. On March 11, 2010, the Wyoming Firearms Freedom Act was signed into law. The Act summary states it is:
An Act relating to the Wyoming Firearms Freedom Act; establishing a Wyoming Firearms Freedom Act; providing that specified firearms that are manufactured, sold, purchased, possessed and used exclusively within Wyoming shall be exempt from federal regulation, including registration requirements; providing exceptions; creating offenses; providing penalties; authorizing the attorney general to defend specified actions; providing legislative findings and declarations of authority; establishing conditions for the possession and purchase of specified firearms; and providing for an effective date.
Also included under 6-8-405. Offenses and penalties; defense of Wyoming citizens:
(a) No public servant as defined in W.S. 6-5-101, or dealer selling any firearm in this state shall enforce or attempt to enforce any act, law, statute, rule or regulation of the United States government relating to a personal firearm, firearm accessory or ammunition that is manufactured commercially or privately in Wyoming and that remains exclusively within the borders of Wyoming.
This is a good example of how the various states differ in their execution of sanctuary state laws and regulations.
Are 2A Sanctuary States enforceable?
The debate regarding whether or not the legalities of a Second Amendment sanctuary state, county, or city can stand up to a fight with the federal government is a complicated one. According to Article VI, Paragraph 2 of the United States Constitution:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
This is known as “The Supremacy Clause” and is the part of the Constitution that makes it clear federal has power over states. The Constitution is, as this paragraph states, “the supreme law of the land.” What does that mean for guns? Well, we also know what the Second Amendment says:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Article III of the Constitution covers who gets the final legal say regarding laws (spoiler alert, it’s not the states):
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
So much comes down to interpretation in Constitutional law; scholars don’t agree amongst themselves, either.
What is Nullification?
Nullification is the answer many people give when debating whether sanctuary status can be upheld from a legal perspective. What is it? It’s a legal theory, but one that has not yet been successfully proven. Nullification is the idea that because the states created the federal government—which is technically true—those same states should be legally able to limit the extent of the federal government’s power. This would be a nice concept to prevent government overreach, but can it really work?
The theory of nullification extends all the way back to 1798, courtesy of Thomas Jefferson and James Madison. Then, in the early 1800s, the Nullification Crisis took place. Battlefields.org supplies a good summary of the crisis, which revolved around what came to be known as the Tariff of Abominations (a tariff is a tax):
Despite southern objections, the tariff passed and went largely forgotten in American consciousness until an exchange on the Senate floor between South Carolinian Senator Robert Hayne and Massachusetts Senator Daniel Webster in January 1830 which reopened the debate. Hayne argued that state sovereignty permitted the nullification of federal rulings when those rulings infringed on states’ rights, going so far as to argue for secession in order to preserve state and personal liberty. Webster famously responded with “liberty and union, now and forever, one and inseparable,” to Webster and many other unionists, people, not states comprised the union. Nullification propagated secession which in turn would destroy the union: the sole protector of liberty. Thus, to preserve liberty, one must preserve the union. Nullifiers did not believe in this link between union and liberty but rather argued that it was the states alone which protected individual freedoms from an overreaching federal government.
If you hear someone talking about the Nullification Crisis, that’s it; the crisis had to do with unwanted, extreme taxes. It nearly led to a civil war in the 1830s and might have, had work not been put into reducing those taxes. As for the theory of nullification, it has yet to be upheld in court. Could it work to enforce Second Amendment sanctuaries? Maybe, maybe not. There’s only one way to find out.
Will Second Amendment sanctuaries work?
In the end, no one knows if Second Amendment sanctuaries can or would be upheld by law. Some people see them as empty gestures meant to pacify the pro-gun side while others feel they’re legitimate uses of authority and give states the power to stand up to the federal government. Still others believe they’re not even worth the paper they’re written on.
We will not know if the idea behind sanctuary states will work until it’s tested, and thus far, no one’s volunteering to be the test case. It seems as though it’s certainly worth having the groundwork laid by putting the laws into effect, it’s just hard to know how it would play it in the long run. Only time will tell.