A Decade of Silence from SCOTUS Amidst Increasing Gun Control Legislation and a Wave of 2A Sanctuary Cities

Photo Credit: Austin County News Online, https://images.app.goo.gl/xbBXrWYXztVxq2Lt8 (last visited September 21, 2020).

Written By: Heather Sutton
Member, American Journal of Trial Advocacy

          In the wake of sweeping gun control legislation, not all citizens taut the necessity of such laws and instead raise their flag demanding protection of their Second Amendment rights and purport the broad, sweeping unconstitutional nature of some gun control legislation.  Areas with some of the most restrictive gun control laws include: California, New York, New Jersey, Minnesota, Colorado, Maryland, D.C., Connecticut, and Massachusetts.[i]  Popular restrictions that have been met with backlash include various gun model and magazine bans, red flag laws, permit requirements, and raising the purchase age of firearms from 18 to 21.[ii]

          In response, America is witnessing the pop-up of “Second Amendment sanctuary cit[ies].”[iii] That term was coined from the sanctuary cities where illegal aliens went to reside free from prosecution and enforcement of immigration laws.  Thus, Second Amendment sanctuary, also known as a gun sanctuary, refers to states, counties, or localities in the United States that “ha[ve] adopted a resolution rejecting the enforcement of state or federal gun laws perceived to violate the Second Amendment.”[iv]  Regulations commonly targeted include universal gun background checks, high capacity magazine bans, assault weapon bans, red flag laws, etc.[v]

          Although similarly purposed legislation in other cities had nearly the same effect, Carroll County, Maryland Board of Commissioners is deemed to be the first body to explicitly use the term “sanctuary” in its resolution on May 22, 2013 and Effingham County, Illinois County Board is recognized for popularizing the term in April 2018.[vi]  Rapidly, others have followed suit and recently the battleground in Virginia has escalated publicity of the rising movement.  Now, more than four-hundred municipalities in twenty states have passed resolutions opposing the enforcement of certain gun laws passed by state or federal lawmakers.[vii]  The movement is largely made possible through law enforcement and what has been called the “constitutional sheriff”. These are sheriffs who have vowed to uphold their oath to the Constitution even when it means not enforcing state or federal laws that they deem to be unconstitutional.[viii]  For example, “in New Mexico, 30 of the state’s 33 county sheriffs have announced their support for gun sanctuaries; in Washington, 24 of the state’s 39 sheriffs have; and in Nevada, all of the state’s 17 sheriffs have publicly declared their opposition to new gun laws.”[ix]

          Fox News host, Laura Ingraham predicted that the growing “Second Amendment sanctuary” movement in the U.S. is destined for the U.S. Supreme Court, “as gun-control advocates face-off against gun-rights supporters in the commonwealth of Virginia.”[x]  Ingraham may be right as even more state attorney generals and other legal experts indicate the growing likelihood of court challenges “for localities that stop enforcing state gun laws.”[xi] Challenges around these cities constitutionality will evolve around preemption laws, due process challenges, county funding for non-enforcing cities, and NRA involvement.

          The looming legal challenges to 2A Sanctuary Cities, mixed with Second Amendment challenges amidst gun shop closures in some jurisdictions during COVID-19 are almost certain to bring a new wave of challenges before the court system and potentially to SCOTUS.  In an era fraught with new developments and ever-increasing gun control legislation, the conservative leaning Supreme Court is ready to attack the issue for the first time in over a decade.  Growing legal commentary indicates disparate and improper application of Heller and McDonald (applying Heller to the states) resulting in uncertain and inconsistent individual gun rights’ rulings.[xii]

          The Supreme Court had a chance to break the Second Amendment Silence in New York State Rifle & Pistol Association v. City of New York but it failed to come to fruition when the case was dismissed on the grounds of mootness.[xiii]  The case centered around a 2013 New York law that barred the transportation of legally owned firearms from outside the home to anywhere else in the city.[xiv]  Although New York successfully defended their law in early proceedings, the law was repealed, and the Supreme Court refused to extend beyond the boundaries of mootness—despite its eagerness to hear a 2A case.  Many of the conservative appointed Justices have expressed a willingness to revisit this topic as depicted in the concurrence and dissents filed in this case.  Three of the Court’s conservative justices—Samuel Alito, Neil Gorsuch, and Clarence Thomas—dissented with their colleagues decision to dismiss on grounds of mootness, with Alito writing that, “by incorrectly dismissing this case as moot, the Court permits our docket to be manipulated in a way that should not be countenanced.”[xv]  But in a short concurring opinion, Justice Brett Kavanaugh hinted his eagerness to address the topic and willingness to support the court taking on the issue.  “The Court should address that issue soon,” he wrote, “perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.”[xvi] 

          So, while there are other cases pending before the Supreme Court, and likely many more to come in light of current circumstances, there may be a “doomsday battle” brewing between gun-rights and gun-control advocates. Regardless of which case makes it to the SCOTUS finish line, one thing is for sure: The Decade of Silence is coming to an end!

[i] Gun Laws by State: The Complete Guide, https://www.gunstocarry.com/gun-laws-state/ (last visited May 31, 2020).

[ii] Id.

[iii] Brian Holmes, Eagle declares itself a ‘Second Amendment sanctuary city’, KTVB7 (September 9, 2020), https://www.ktvb.com/article/news/local/208/eagle-2a-sanctuary-city/277-46a7be31-1b8b-4d88-8279-454783ee5d84.

[iv] Jennifer Mascia, Second Amendment Sanctuaries, Explained, The Trace (Jan. 14, 2020), https://www.thetrace.org/2020/01/second-amendment-sanctuary-movement/; Noah Shepardson, America’s Second Amendment Sanctuary Movement Is Alive and Well, Reason (November 19, 2019).

[v] Shepardson, supra note 4.

[vi] Kym Byrnes, Commissioners Declare Carroll County a ‘Second Amendment Sanctuary’, Westminster, MD Patch (May 24, 2013), https://patch.com/maryland/westminster/commissioners-declare-carroll-county-a-second-amendme53293b0b60; Katherine Rosenberg-Douglas, Second Amendment ‘sanctuary county’ movement expands as organizers take aim at new gun laws, Chicago Tribune (April 17, 2019), https://www.chicagotribune.com/news/breaking/ct-met-second-amendment-sanctuary-county-movement-illinois-20190416-story.html.

[vii] Mascia, supra note 4.

[viii] Constitutional Sheriffs and Peace Officers Association, Statement of Positions, https://cspoa.org/sop/ (last visited May 31, 2020).

[ix] Mascia, supra note 4.

[x] Matt London, ‘Second Amendment sanctuary’ movement headed for Supreme Court: Laura Ingraham, Fox News (January 10, 2020), https://www.foxnews.com/media/second-amendment-sanctuary-movement-supreme-court.

[xi] Mascia, supra note 4.

[xii] Eric Ruben, What the Supreme Court’s Latest Second Amendment Ruling Means for Future Cases, Brennan Center for Justice (May 1, 2020), https://www.brennancenter.org/our-work/analysis-opinion/what-supreme-courts-latest-second-amendment-ruling-means-future-cases.

[xiii] New York State Rifle & Pistol Association Inc. v. City of New York, New York, Scotus Blog (April 27, 2020), https://www.scotusblog.com/case-files/cases/new-york-state-rifle-pistol-association-inc-v-city-of-new-york-new-york/.

[xiv] Id.

[xv] Id.

[xvi] Id.

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