Gun rights advocates are pushing to create Second Amendment sanctuaries in a bid to flout federal gun laws

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Texas Ft. Worth gun show
Guns for sale at a gun show in Fort Worth, Texas, July 10, 2016. Spencer Platt/Getty Images
  • Texas Gov. Greg Abbott is pushing for the state to become a Second Amendment sanctuary.

  • Second Amendment sanctuaries ignore federal or state gun laws they consider restrictive.

  • In recent years they've become a tactic among gun rights advocates to push back against federal restrictions.

  • See more stories on Insider's business page.

On Thursday, Texas Gov. Greg Abbott tweeted in support of gun rights just hours before a deadly mass shooting in Bryan, Texas.

The shooting - the state's 14th so far this year - left one dead and five injured and came at a particularly inopportune moment. Abbott is in the midst of a campaign to turn Texas into a Second Amendment sanctuary state - a state where federal gun restrictions would be ignored in favor of local laws more favorable to gun rights.

The legislation to make Texas a sanctuary state was introduced in February by Texas State Rep. Justin Holland. If passed, Texas will join Alaska, Idaho, Kansas, Wyoming, and Arizona, along with around 400 counties in 20 states, that have also designated themselves as gun rights sanctuaries.

The push to make Texas a Second Amendment sanctuary comes amid several executive orders from President Joe Biden calling for increased gun control measures, including a push for "red flag" legislation modeling, an investment in evidence-based community interventions, and measures to stop the proliferation of "ghost guns" - guns made out of purchased parts that are untraceable by authorities.

"Basically, we're freezing Texas state law and federal laws in place that have to do with guns," Holland told The El Paso Times. "And (we're) not recognizing, at the state level, any federal changes."

What are Second Amendment sanctuaries?

Second Amendment sanctuaries are meant to combat the perceived infringement of gun rights in a variety of forms. Cities, counties, and states alike can and have declared themselves second amendment sanctuaries in the US.

Those infringements might include laws requiring universal background checks prior to gun purchase, or bans on particular weaponry, including assault and automatic weapons, or red flag laws that allow law enforcement or family members to "flag" that a person with a gun may be a danger to themselves or others.

Worker inspects AR-15 gun in Utah
A worker inspects an AR-15 gun at Davidson Defense in Orem, Utah on March 20, 2020. - Gun stores in the US are reporting a surge in sales of firearms as coronavirus fears trigger personal safety concerns. George Frey/AFP/Getty Images

The trend of Second Amendment sanctuary cities and states began in earnest in 2018, when Effingham County, Illinois, passed a series of resolutions opposing bump stock bans and a mandatory 72-hour waiting period on gun purchases, along with a litany of other gun control measures.

Since then, more than 70 counties in Illinois have passed some kind of Second Amendment sanctuary legislation, The Trace reported.

In 2019, more than 120 cities and counties in Virginia declared themselves gun rights sanctuaries, in backlash to a Democrat sweep in state elections.

Last week, Arizona Gov. Doug Ducey signed a bill that bans local and state governments and agencies from enforcing federal gun laws that are "inconsistent with or more restrictive than state law."

Ducey told reporters the law was meant to be "a proactive law for what is possible to come out of the Biden administration."

black gun club
Members of the Hudson Valley Nubian Gun Club practice at a shooting range in Monroe, New York, on July 30, 2020. Brendan McDermid/Reuters

'Renegade' sheriffs opt out of enforcing federal law

Second Amendment sanctuaries often emerge from a refusal to enforce existing federal law.

Often, that decision comes from so-called "renegade" sheriffs and police who simply choose not to recognize laws they feel step on gun owners' rights.

They consider themselves "constitutional sheriffs" and believe, according to the Constitutional Sheriffs and Peace Officers Association, that "the vertical separation of powers in the Constitution makes it clear that the power of the sheriff even supersedes the powers of the President."

In Culpeper, Virginia, Sheriff Scott Jenkins went so far as to write on Facebook that "if necessary," he would "properly screen and deputize thousands of our law-abiding citizens to protect their constitutional right to own firearms."

Voters in Washington, Oregon, New Mexico, Virginia, and Illinois, among others, have all passed resolutions in support of local sheriffs who believe federal gun laws are unconstitutional.

church gun
A volunteer member of the congregation at Joyful Heart Church poses for a portrait with her concealed handgun inside the church in Stockdale, Texas on Sunday, January 26, 2020. Getty Images/Washington Post

Even where Second Amendment sanctuary isn't officially declared, some sheriffs have taken it upon themselves to buck federal gun laws.

Bob Norris, the sheriff of Kootenai County, Idaho, told reporters last month he wouldn't enforce federal gun laws, regardless of whether the county voted to become a Second Amendment sanctuary or not.

"I would just like to tell you that regardless of what you decide here today, and regardless of what they decide in Washington, DC, there will be no gun confiscation here in Kootenai County," Norris said at a local press conference. "Period."

Three days after Norris' press conference, the proposal to establish the county as a Second Amendment sanctuary fell flat after the Board of County Commissioners declined to support it by a vote of two to one.

Second Amendment sanctuary declarations are largely symbolic

But can these sanctuary declarations be enforced?

"A state, like Texas, declaring itself a "sanctuary" doesn't invalidate federal law from operating in Texas," Darrell Miller, co-faculty director of the Center for Firearms Law and a faculty member at Duke Law School, told Insider. If local law enforcement opts not to enforce gun laws, then "the FBI, ATF, and Department of Justice can still enforce federal law there."

Miller cited the Supremacy Clause, which says that the Constitution "shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

gun control
A demonstrator holds a sign depicting an assault rifle at a protest against President Trump's visit, following a mass shooting which left at least 22 people dead, on August 7, 2019 in El Paso, Texas. Protestors also called for gun control and denounced white supremacy. Trump is scheduled to visit the city today. A 21-year-old white male suspect remains in custody in El Paso which sits along the U.S.-Mexico border. Photo by Mario Tama/Getty Images

Second Amendment sanctuary declarations "don't have force of law," Dana Schrad, executive director of the Virginia Association of Chiefs of Police, told USA Today after local jurisdictions began passing gun sanctuary bills in the state. "They are policy statements. They don't empower localities to turn a blind eye to what is state law."

Sanford V. Levinson, a constitutional law scholar at the University of Texas Law School, told Insider sanctuary declarations don't nullify existing federal laws, but they can make it difficult to enforce them - which is the point.

"The laws are not invalid; it's simply that the national government will be left on its own re the mechanisms of enforcement," he said - which, given limited resources and budgets, means the federal government will often turn a blind eye.

Should the government want to compel local authorities to enforce federal law, they'd likely run into problems because the Supreme Court has already ruled that the federal government can't "commandeer" state officials to enforce federal law, Levinson said, citing New York vs. United States 505 US 144.

"It simply comes down to whether the federal government wants to make it a case. But if the national government is willing to pay the price, then it will prevail," he continued.

"It's one thing for the sheriffs to say, 'We're not going to lift a finger to help you take guns away from our people,'" Tung Yin, a law professor at Lewis & Clark Law School in Portland, told Oregon Live. "That's OK. It's another thing for the sheriffs to say, 'Not only are we not going to lift a finger to help you, we're going to do everything we can to stop you.'"

But that's exactly what's happened in Newton County, Missouri, where local lawmakers passed a Second Amendment Act that allows local law enforcement to arrest any federal agents attempting to enforce federal gun laws - though Miller says the statute isn't actually enforceable.

Lindsey Graham shooting
Republican Sen. Lindsey Graham uses images of handguns and rifles during a hearing about gun control on Capitol Hill January 30, 2013 in Washington, DC. Chip Somodevilla/Getty Images

"The general proposition is that federal officers cannot be prosecuted by state or local authorities for acts done in furtherance of their official duties," Miller told Insider, citing In re: Neagle, an 1890 Supreme Court case ruling that said federal agents are immune from local prosecution if operating in the furtherance of federal law.

Newton County, Missouri, Sheriff Chris Jennings did not respond to Insider's request for comment.

Texas governor says shooting victim's family wants Second Amendment sanctuary

The passage of ag Second Amendment sanctuary resolution is all but a foregone conclusion in Texas, a state where nearly half of all adult residents - 45.7% - live with a gun in the house, according to a 2020 Rand research project.

Gun control advocates say they're gearing up for a court battle either way.

"The outcome for a bill like this would almost inevitably be a challenge in court," Jim Henson, the executive director of The Texas Politics Project, told KXAN. "It's hard not to see this as part of an effort to test the boundaries at how much states can push back against federal and constitutional provisions."

During an appearance on "Fox News Sunday," Gov. Abbott told host Chris Wallace he spoke with the family of the victims of the Bryan, Texas, shooting, who told him they supported the sanctuary state plan.

"I went to the hospital where the victims' families were on the night of the shooting. And we hugged, and we cried, and we talked to them about it. As I was talking to family members of one of the victims, they said: 'Governor, please, do not allow this shooting to strip us of our Second Amendment rights,'" he said.

bryan texas shooting
Barricades block the road leading up to the entrance of Kent Moore Cabinets in Bryan, Texas after a mass shooting at the facility on on on on April 8, 2021. Sam Craft / AFP via Getty Images

While Second Amendment sanctuary status may be largely symbolic, it speaks to a growing divide in the US over gun violence and how to quell it, especially after a year in which firearm-related incidents took the lives of more than 19,000 people - the highest number of gun-related deaths in 20 years, according to the Gun Violence Archive.

"The nation has experienced a historic increase in violent crime in the past year. People want and need to protect themselves," Joyce Malcolm, the Patrick Henry Professor of Constitutional Law and the Second Amendment at George Mason University School of Law, told Insider. "The number of FBI background checks for gun purchases continues to hit new records. January and March 2021 are the only time in the history of the FBI's National Instant Criminal Background Check System gun checks have broken four million."

According to the Washington Post, more than two million guns were sold in the US in January alone - an 80% increase over the same month in 2020.

"Americans are buying guns at a blistering pace," Malcolm added. "They will NOT give them up."

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