Sanctuary State

More Sanctuary States of the Right

Conservative states seeking to protect gun rights are copying the tactics used by liberal immigration sanctuaries.

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In April, I wrote about how the conservative state of Montana enacted a law making itself a gun sanctuary, similar to liberal immigration sanctuary cities and states. I predicted then that other conservative states are likely to adopt the same approach. And that is exactly what has happened, as described by Reason's

Since 1987, Oregon has prohibited law enforcement agencies from arresting or detaining people whose only crime was entering or living in the U.S. illegally. Hundreds of other jurisdictions have followed suit, becoming so-called sanctuary cities.

"The methods that we need to use are the ones already being used by the left," says Anthony Sabatini, a Republican member of the Florida House of Representatives. "Nullifying unconstitutional federal laws is both legal and the right thing to do."

Sabatini is co-sponsoring a Florida bill that would bar state employees from enforcing or attempting to enforce any of several listed federal gun controls, including taxes, registrations, bans, and more. State employees who violate that prohibition would be permanently barred from working for Florida's government.

In April, Republican governors in Arizona, West Virginia, and Montana signed similar bills into law, while Arkansas' governor, also a Republican, vetoed a bill. Such measures have passed in the Alabama Senate, the Missouri House, and the South Carolina House as well as legislative committees in Texas, New Hampshire, and Louisiana. Bills also have been introduced in North Carolina, Georgia, Minnesota, Ohio, Nebraska, and Iowa.

Many states already defy federal law, through both immigration sanctuaries and marijuana legalization. "In terms of the method, it's identical," says Sabatini. Sanctuary cities have "stopped reporting to or dealing with [Immigration and Customs Enforcement], and that's basically what we're doing."

The legal case does not depend on the constitutionality of the law a state wants to nullify in this way. Under the anti-commandeering doctrine, a principle that has been upheld in five Supreme Court cases from 1842 to 2018, the federal government can't require state or local officials to participate in the enforcement of federal laws.

"We know this stuff has been working," says Michael Boldin, founder and executive director of the Tenth Amendment Center. "The right can continue to complain about the things that the left is successful at, or they can look at it, learn from it, and replicate it."

Both Osterhoudt and Sabatini use the term "nullification" to describe what these states are doing. But that isn't actually correct. As understood by John C.Calhoun and others who sought to use nullification to protect slavery and other southern state interests in the 19th century, the term meant that the federal laws in question were null and void in their states. If the theory was correct, neither state nor federal authorities would have any right to enforce them.  By contrast, liberal immigration sanctuaries and conservative gun sanctuaries are merely preventing their own state and local law enforcement agencies from helping the federal government enforce the laws in question. But the laws remain binding, and the federal government can still use its own resources to pursue violators. For example, federal ICE agents can still pursue undocumented immigrants in immigration sanctuaries, and federal ATF agents can still pursue people who violate federal gun laws in Montana.

While sanctuary  laws don't totally block enforcement of federal legislation, they do make it much more difficult by denying the federal government the assistance of state and local assistance. In most places, there are far more state and local police than federal agents, whether ICE or ATF.

Unlike nullification, which arose in part as a defense of slavery, anti-commandeering—the principle underlying sanctuary jurisdictions, was actually used in the 19th century to deny state cooperation to federal efforts to enforce the Fugitive Slave Acts:

In March 2018, when the Trump administration was battling sanctuary cities, soon-to-be National Security Advisor John Bolton challenged the concept in an interview with Breitbart. "The idea that law enforcement at lower levels shouldn't be required to cooperate with the feds is just unthinkable," he said. "That was also proposed by South Carolina Sen. John C. Calhoun before the Civil War, to say that South Carolina and other slave states would not enforce federal law regarding slavery."

[Michael] Boldin says that argument is ahistorical. The anti-commandeering doctrine originated in the 1842 Supreme Court case Prigg v. Pennsylvania, which upheld the Keystone State's right not to enforce the Fugitive Slave Act of 1793. "The bottom line is nullification (banning participation in federal enforcement) was actually a tool of the anti-slavery, abolitionist North," Boldin says. "And when South Carolina seceded…they issued a document to explain their rationale, specifically [citing] Northern nullification of the federal Fugitive Slave Act."

The Trump administration launched an extensive campaign to try to pressure liberal immigration sanctuary jurisdictions into giving up their policies. Most of these efforts were struck down by courts because they ran afoul of constitutional prohibitions on federal "commandeering" of state and local government, and executive imposition of conditions on state recipients of federal funds without congressional authorization.The same fate would likely befall any Biden administration efforts to try to bully the gun sanctuaries into submission.

I am one of the relatively few people who support both liberal and conservative sanctuary jurisdictions. The more sanctuaries, the better! I outlined some of the reasons why in my post on the Montana law:

Liberal Democrats were happy to use constitutional protections for federalism to protect sanctuary cities and states against Trump, while many Republicans advocated broad theories of federal power to try to get around those limits.

Now that there is a Democrat in the White House, and the issue is gun rights, rather than immigration, the shoe is on the other foot. Many of those who defended liberal sanctuary jurisdictions are likely to denounce the Montana law, and vice versa. "Fair weather federalism" is a ubiquitous element of American politics….

I am one of the relatively few people who sympathize with both liberal immigration sanctuaries, and conservative gun gun sanctuaries. To my mind, both are countering federal laws that are at best counterproductive, and at worst deeply harmful and unjust.

But, even aside from the merits of specific policies, there is great value in having a federal system that leaves room for sanctuary jurisdictions of various ideological stripes. I outline some of the reasons why here:

[T]here is a good deal of inconsistency and "selective morality" in the discourse over sanctuary cities. People who sympathize with left-wing sanctuary causes tend to condemn right-wing ones, and vice versa, even in cases where the legal and moral issues involved are remarkably similar. Such… bias is part of the broader phenomenon of "fair weather federalism," where both Republicans and Democrats all too often condemn or praise limitations on federal power depending primarily on whose ox is being gored…..

I would prefer a broader and more principled commitment to limiting federal power, on both left and right. But I fear we may not get it anytime soon.

In the meantime, even hypocritical sanctuary movements can still provide valuable foot-voting options and protect people against overreaching federal government policies.

UPDATE: I have made a few small additions to this post.

NEXT: SCOTUS will decide 18 cases in the next two weeks (Updated)

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  1. I’m perfectly fine with states electing not to enforce federal gun laws, even though I’m one who believes that there is a likely causal connection between the proliferation of guns in the U.S. and levels of gun violence.

    Those states may want to think carefully about where that puts them, though, in terms of crime rates. The uptick in violent crime in NYC is happening after the NYPD engaged in a broad slowdown of arrests for gun crimes. I wouldn’t be surprised if the more “gun liberal” states see a similar phenomenon, if they relax their own attitudes on enforcing gun crimes.

    1. 2019 D.C. homicide rate: 23.5
      2019 Idaho homicide rate: 2.0

      So the thesis is if Idaho relaxes its strict gun control regimen to match the lax gun control in D.C., its murder rate will catch up with D.C.?

      Source

      1. No, the thesis that lax enforcement of existing gun laws may lead to increases in violent crime.

        If a state doesn’t have a meaningful regulatory regime for gun ownership in the first place, or has never really enforced it, then one wouldn’t expect a change.

        Nothing I’ve said could be read to suggest that I think that Idaho would potentially “catch up” to D.C.

        Maybe take a breath before you shitpost.

        1. Perhaps you should take a think about glass houses before shitposting.

        2. Seems that increased enforcement of existing gun laws would rope in many poor minorities, thus creating more violent situations between police and the population.

          Also that wasn’t a “shitpost” learn to discern that.

          1. Except that those very same minorities are the ones murdering their own kind.

      2. Doesn’t matter how tough DC gun laws are, when any reasonably resourceful violent criminal can simply drive over the Potomac to Virginia and buy anything he wants virtually unregulated. Which is why gun control only works at the national level, and finger pointing at DC and Chicago is silly.

        1. That’s not even remotely true. You can’t buy a handgun out of state, and any long gun or shotgun you do buy is still subject to a 4473 as well as both jurisdiction’s laws.

          https://www.atf.gov/firearms/qa/may-licensee-sell-firearm-nonlicensee-who-resident-another-state

      3. “So the thesis is if Idaho relaxes its strict gun control regimen to match the lax gun control in D.C., its murder rate will catch up with D.C.?”

        Let’s see, are there any other differences between Idaho and DC that might affect the statistic? Like, say population density? Naw, that can’t be it.

    2. I’m curious how you still believe that there is a likely causal connection when the statistical correlation between gun ownership and gun violence has been very clearly negative for years now. Correlation is not causation – but for a positive causal relationship to exist despite a negative correlational relationship, there must be some large secondary cause occurring during the same correlational period. What is your hypothesis for that large alternative cause of declining gun violence even as ownership increases?

      1. I’m thinking very macro, in terms of overall guns per capita and levels of violent crime, and I’m comparing across different, similarly-developed nations.

        We do have a remarkable number of gun deaths in this country, even if you exclude suicides, when compared to any country that is similarly-developed and not, say, in the throes of a long-running insurgency and/or drug gang war. How would you explain that phenomenon?

        1. Not because of guns, when there is no correlation between gun ownership and violent crime rates within these several united states.

          Then there’s the EU, where every single country, best I can remember, has a violent crime rate several times the US. But that assumes the violent crime rates are measured similarly, which may not be true. The UK, for instance, does not count a dead body as a murder until it has obtained a conviction, even if said body is riddled with holes from knives or bullets.

          The hoplophobe answer is always “but what if” when the if has been clearly disproven; their excuse is that the non-if has not been proven, which is amusing except sor the effects of their insincerity.

        2. “overall guns per capita and levels of violent crime”

          Well, looking at U.S. states, as perhaps more representative of the U.S. than other countries, there doesn’t seem to be much of a correlation between gun ownership and murder rates. The slight correlation there is is negative, in fact.

          (if you prefer international comparisons, keep scrolling down that page)

          1. More to the point, if you look at a more granular level, the finer detailed you get, the sillier the claim becomes. Crime rates vary by a factor of 10 or so between states, but they vary by a factor of a hundred to a thousand between jurisdictions within states.

            A key point about making statistical inferences where there can be more than one factor at work: The stronger the factor you’re trying to control for, the more accurately you must know it and its effect.

            Whatever is causing murder rates to vary by as much as three orders of magnitude between different jurisdictions within a state, would have to be both identified, and understood to insane precision, in order to validly make any inferences about the effects of gun ownership.

            As a practical matter, anybody who is making statistical arguments about the effects of gun control is committing statistical malpractice, and if they understand statistics, they’re doing it deliberately.

            1. “Whatever is causing murder rates to vary by as much as three orders of magnitude between different jurisdictions within a state, would have to be both identified, and understood to insane precision, in order to validly make any inferences about the effects of gun ownership.”

              No, it is easy to identify other clear signals amongst the noise and control for them. We know that various factors carry high weight, and allow for them – stuff like general wealth of an area, inequality, level of policing, urban/rural, etc.

              None of them needs to be known exactly, because even making the most generous allowances the gun-availability factor stands out.

              Ultimately there’s one way in which US gun ownership is quite unusual on a global scale. That is that the US is the only country where people keep guns for fun, and use them as toys. Obviously basic common sense says that this is part of the problem, not an excuse. It’s like comparing chainsaw safety rates between places they’re used for forestry and places people like to juggle them.

              1. I so need to facepalm here.

                Look, let’s say that murder rates are effected by gun ownership AND factor X. Doesn’t matter what factor X is, it could be sales of chewing gum, or urban gang activity.

                If your correlation with gun ownership shows a 10 fold difference in murder rates between jurisdictions with different rates of gun ownership, but factor X is causing a 1,000 fold difference in murder rates, you need to know the effect of factor X to much better than one part in 100 in order to make any estimate AT ALL of the effect of gun ownership, because even a 1 part in 100 variation of X could be the actual cause of the correlation you’re seeing with gun ownership.

                Your concern here is spurious correlations, and you can’t rule them out when there’s a hugely more powerful correlation present you don’t know accurately enough to control for.

                You just can’t. It’s statistical malpractice to claim you can.

              2. You think recreational gun ownership is the problem? Years ago, a study was done at the University of Illinois on rates of handgun ownership in various parts of the state. Surprisingly, Chicago, which has a high crime rate, and Western Illinois, which has a low crime rate, had similar rates of handgun ownership. The study found that in Western Illinois, the handguns were predominantly owned (at that time) by men for recreational purposes, while in Chicago, about half of the handguns were owned by women, for personal protection.

          2. Absaroka, more caution please in the use of uncertain and perhaps biased statistics. For instance, the chart you link shows Hawaii with a much higher gun ownership rate (~45%) than seems plausible based on other sources, some of which put the Hawaii rate in single digits. Other states are also apparently skewed.

            The FBI statistics you cited in a previous post are not collected systematically, and states and localities are not required to comply.

            1. The Hawaii ownership rate does seem anomalous. If you followed the linked sources, that’s from an article published in the journal ‘Prevention’ with three authors from Columbia University and one from Boston U. They got their numbers from a survey of 4000 people, which is a fairly small sample across 50 states. If you want to redo the chart with ownership numbers you feel are more accurate, please do so, but I fear you will get much the same result. Generally speaking, it doesn’t seem implausible that MT, ID, WY, and AK have higher ownership rates than NJ, NY, CA, etc.

              As far as the FBI’s UCR data, which source for murder rates do you prefer instead?

        3. So you’re changing the rules from time-based analysis (which controls for many cultural differences) to country-based analysis (which doesn’t). How about we stick with your original premise?

          Within the US, gun ownership has gone up dramatically at the same time that gun violence has gone down. Do you have a hypothesis to explain that correlation? Or are you going to continue trying to wave that fact away?

          At the country level, I agree that there are discrepancies. The US has both higher gun ownership and higher gun violence than some other countries. My hypothesis is that the vast majority of that difference is attributable to our political love affair with prohibition – first against alcohol, then against drugs. There are no other developed countries that take our approach to the “war on drugs” to the same absurdly self-destructive levels.

          1. You might want to take a look at the Philippines before you make that last claim. Though I suppose you could argue they’re only semi-developed.

            1. I don’t know much about these issues in the Philippines. Can you give a synopsis? Or a link to a source you trust?

              1. Ever seen a Philippines customs form? At the top and bottom, in big, bold letters, it reads, “Death to drug smugglers!” They’re not kidding about that, it’s a good way to get a chance to go sky diving without a parachute. (Duarte’s favorite execution method.)

                Philippines’ ‘War on Drugs’

      2. Rossami, I support private gun ownership, with reasonable regulation. That said, the more guns there are out there, the more likely it is that they’ll be misused. It’s the same theory under which you don’t want North Korea or Iran to have nuclear weapons.

        Just yesterday a grocery store clerk was shot to death for telling a customer to put on a mask. That doesn’t happen in places where there are fewer guns in circulation.

      3. “I’m curious how you still believe that there is a likely causal connection when the statistical correlation between gun ownership and gun violence has been very clearly negative for years now.”

        So when the would-be murderer reaches for his weapon, and then says “Oh, yeah, I live in a jurisdiction that limits access to weapons” that makes him MORE likely to murder with a firearm? But reaching for the weapon that is right there and finding it right there makes him LESS likely to murder?

    3. Vicious violent criminals, including most mass murderers, are bastards. Thank the lawyer profession for destroying the American family, especially that of diverse people.

      1. Vicious violent criminals, including most mass-murderers, are well-armed. I suspect that has a closer correlation to body-count than does whether the dude’s (and yeah, it’s probably a dude) parents were married.

        1. There’s a hell of a lot of well-armed people, but most mass murderers are only armed with a handgun, so they are not necessarily all that well-armed. And crime statistics suggest that violent criminals don’t need to be armed at all. They do pretty damn good with their fists and feet.

    4. Nothing is being said about STATE gun laws, which I have no doubt these states are enforcing — and which blue states never do.

    5. I’m one who believes that there is a likely causal connection between the proliferation of guns in the U.S. and levels of gun violence.

      Do you choose to hold that view in spite of the fact that it’s contradicted by the totality of availability data and statistical analysis, or is that part of the appeal of the idea for you?

      1. The true test of faith is to preserve one’s faith in the face of all the contrary evidence.

      2. No, he’s just not daft enough to trick himself with pseudo-statistical analysis. It is impossible to honestly and intelligently argue that gun-availability is not the biggest factor in the rates of gun violence and accidents. It’s an extraordinary claim, but rather being supported by extraordinary evidence it’s only backed up by pseudo-statistics.

        1. “Duh, it’s common sense” is not a valid statistical argument.

          1. Indeed; unless something new has come to light in the last couple of years, you have damn near a balance of studies on all three sides of the debate (Helps violent crime; no change; increases gun deaths)

            I would note that not all of these sides are mutually inconsistent.

            1. Helps violent crime; no change; increases gun deaths

              Those aren’t three different sides of one debate. Those are two sides of one debate and one side of another. “gun deaths” is not a synonym for “violent crime”, and in fact there’s relatively little overlap between the two sets.

        2. It is impossible to honestly and intelligently argue that gun-availability is not the biggest factor in the rates of gun violence and accidents.

          That claim is impossible to seriously make unless you’re a child molester.

      3. “Do you choose to hold that view in spite of the fact that it’s contradicted by the totality of availability data and statistical analysis”

        The dead guys can’t ALL be crisis actors!

        1. The dead guys can’t ALL be crisis actors!

          Irrelevant AND stupid. Well done.

    6. There is very likely not a causal relationship, where more guns results in more crime (here in rural MT, where everyone is well armed, there is almost no gun crime, except that involving violating game laws), but there does appear to be negative correlation between gun laws and violent cries utilizing guns. But I would suggest that the underlying problem is one of violence, with parts of this country being orders of magnitude more violent that much of the rest of the country, one of the solutions attempted to fight that violence is stricter gun laws, and that often backfires, by disarming the law abiding people in those areas, making them easier victims to the violent predators in their communities.

      1. Well, duh: That problem has been famous for over two hundred years. Gun control measures always disarm the victim more easily than the criminal, and so unless impossibly complete, make things worse.

        Cesare Beccaria, the founders’ favorite criminologist: “False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that it has no remedy for evils, except destruction. The laws that forbid the carrying of arms are of such a nature. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.”

        The reason gun controllers don’t accept this well established finding in criminology, is that they’re not opposing guns on a rational basis. They live in a demon haunted world where guns, not their owners, have agency, where having a gun causes the commission of crime, rather than intent to commit crime causing the criminal to obtain the gun.

        1. “They live in a demon haunted world where guns, not their owners, have agency, where having a gun causes the commission of crime, rather than intent to commit crime causing the criminal to obtain the gun.”

          I live in a world where road rage incidents happen, and the ones that involve gunplay necessarily imply ready access to a weapon. I’m not aware of any cases of road-rage gunplay that involved a criminal leaving the scene to obtain a gun. Maybe things are different where you live.

  2. It doesn’t really seem all that similar. Declining to enforce federal law for the feds is a de minimus sanctuary policy. The more comprehensive sanctuary policies on the left include dismissing misdemeanors against illegals as a policy, and taking steps to hide them from federal officers when they are known to be looking.

    If these states stop their officers from inventorying weapons found in police reports, or actively start destroying them, and not disclosing felony records to the feds, it will start approaching a real sanctuary policy.

    1. To really reach the level of sanctuarism you find in states like California, though, you’d have to make it a crime for private citizens to cooperate with the BATF; For instance, ban gun dealers from running background checks or allowing the BATF to see their log books.

      1. Well that is an interesting thought…I’d like to make my town a Bill of Rights sanctuary city….

        1. “I’d like to make my town a Bill of Rights sanctuary city”

          How does that work. Your house is on fire, so you call the fire department, but they can’t come put the fire out because they don’t have a warrant to enter the property?

      2. I think that you would have serious Supremacy Clause issues there. The 2nd Amdt Sanctuary solution is to step around this problem by going after the problem of federal overreach through the state being the employer of state and local employees, where there is a long history of independence.

        I am thinking though that States like MT have to step carefully. One of the very nice benefits of a concealed carry permit in that state is that it makes it far easier, and faster, to acquire firearms through an FFL. Typically, the background check for CCW holders is minutes, while it usually takes a day or so otherwise. That also means that FFL transfers around here that normally cost $25, cost $15, justified by the lesser amount of paperwork required. But that requires that the state and the ATF cooperate. Will we lose that benefit?

        1. Yes, there are serious Supremacy clause issues with California’s sanctuary laws. They’ve been discussed here, though Ilya tends to not want to talk about them for some obscure reason.

  3. Nullification seems to trigger liberals. Tom Wood’s wrote a good book on the subject about 10 years ago which I found to be very informative…didn’t know much of the Kentucky and Virginia Resolutions. And how nullification was mostly used by the New England States during the war of 1812, as a way to reject the Fugitive Slave Act. The idea that a majority of States should have the right to reject a law that is Unconstitutional by the Federal Govt seems very in alignment with Federalism. Having the SC decide if a law the Fed passed is legal seems ridiculous..the SC is part of the Federal Govt after all. its like having the umpire on the same team which is committing all sorts of infractions…nullification should have been in the Constitution..it protects the Republic from secession.

    1. The left is threatened by states declaring themselves sanctuaries, because they have taken control of many of the government institutions over time, and this threatens their power. Now they have taken over control of the ATF, which is letting its autocratic tendencies run rampant, as they try to surreptitiously go as far as they can to make “assault weapons”, like the AR-15, the quintessential 2nd Amdt militia firearm illegal. Never mind that they are almost never used in crimes. They look scary, and that is more than enough.

      Esp worrisome right now is their push right now to control people reassembling their own firearms, a millennia old practice. They are using statistics significantly dodgier than those attacked above (for example counting such guns regardless of whether they had any relationship to an arrest, or whether the arrest was for murder, or jay walking).

      1. The left is threatened by states declaring themselves sanctuaries, because they have taken control of many of the government institutions over time, and this threatens their power.

        As Randal noted, is the left really worried about this concept (vs. this particular application), or is it just an attempt to own the libs you’re too sure has owned the libs to check?

    2. Correct. State nullification (and sovereignty generally) was the primary and ultimate check on the power of our federal government, under the original design.

      Remove the primary and ultimate check on the power of our federal government, and . . . . well you can begin to understand why things are the way they are today.

      1. Nullification was pretty controversial before the Civil War.

        And while I know you’ve got some Confederate sympathies, after the Civil War Amendments, nullification (and secession) was decidedly no longer a Constitutional thing.

        If the Supreme Court says the Feds are acting within their enumerated powers, the States don’t get to say nuh-uh. They cannot be commandeered to help, but that’s as far as the leeway goes, and has gone for the past couple of centuries.

        1. The principles adopted in the Constitution and the ideas behind them continue to be “controversial” in every imaginable detail, but that’s neither here nor there.

          But there is no doubt about what the founders meant and their original meaning. Jefferson, Madison, and Hamilton were all in agreement on nullification.

          “If the Supreme Court says the Feds are acting within their enumerated powers, the States don’t get to say nuh-uh.” Actually, they could. But that sort of thing is not done lightly and doesn’t happen easily.

          From your point of view, instead of “after the Civil War Amendments” it might make more sense to say “after Marbury.”

          1. I think you do violence to Hamilton’s position about how State’s Rights were to operate. He wasn’t against them, but that doesn’t mean he liked nullification.

            Anyhow, don’t get to privilege the anti-Federalist views of the Constitution, especially since they lost the debate. It’s baking your own confirmation bias into your originalist analysis.

            Nullification is about the power relationship between the states and the federal government. The 14A changed that relationship. So yeah, you don’t get to neglect that.

            Bottom line – nullification sucks because it recalls the Civil War, and Jim Crow. It does not have a history of good faith operation.

      2. That’s quite a bold claim, and I believe an incorrect one. I wonder what evidence you could site for this, specifically that “State nullification…was the primary and ultimate check on the power of our federal government, under the original design.” Unless by original you mean the articles of confederation. I’d agree with that.

  4. Uber-Right hysterics who attack “sanctuary city” doctrines regarding immigration, and now limitedly invoke it in service to their misshapen enforcement of what they think the Second Amendment is all about, don’t realize that the doctrine is simply a conservative application of Federalism, a determination that the central government cannot commandeer the states to enforce federal law. It ironically has always been an originalist conservative doctrine, even when serving a “liberal” policy-choice, so when the uber-Right attacked it, they thereby revealed that they know nothing of the Framers’ scheme.

    1. You might want to step back and think whether a bunch of word salad starting with “Uber-Right hysterics” is going to change any opinions except people’s opinion of you.

      1. Look at the comments on sanctuary cities, and then look at the comments about the same thing but for guns.

        Me? I think both are constitutional, and shouldn’t be interfered with by the Feds, even if you think one or the other is bad policy.

        Many here can’t seem to manage such consistency.

        1. It’s almost like immigration and 2nd Amendment issues are not equivalent.

          States like California go beyond the State/Federal distinction, for an unenumerated right. I’ve got news for you, the entire US should be a a “gun rights” sanctuary zone, not that you care about 2A.

          1. What do rights have to do with this? It’s about the distribution of power in our federated system.

            Just because one thing is a right, and another is not, should not change the federal-state relationship.

    2. There’s some truth to this. There’s no shortage of ignorance or inconsistencies on the right.

      ““sanctuary city” doctrines regarding immigration . . . is simply a conservative application of Federalism, a determination that the central government cannot commandeer the states to enforce federal law.”

      Not exactly. The main legal issues over sanctuary cities recently related to 8 USC 1373. But that statute did not actually require states to do anything to enforce immigration law, it only preempted legislatures from passing a law making it illegal for any law enforcement officer to cooperate with federal immigration authorities. Such as by letting ICE know before they release a violent felon into the American public who then goes on to kill people, when they were supposed to be deported.

      One open borders judge declared 1373 to be unconstitutional because it “commandeered” the state legislatures (not because it commandeered any enforcement apparatus or required states to enforce any federal law – it didn’t). That decision seems to me like it maybe ought to be right, but no such principle has ever been applied to vast areas of law where the federal government is permitted to preempt states, even though preemption in those areas should be much less permissible than preemption in foreign matters such as immigration.

      But the overarching issue that was litigated is different. The requirements of 1373 can easily be imposed as a condition on federal funds going to the states. And Congress did just that, by saying that certain law enforcement grants to cities were conditioned on certification that they were in compliance with applicable federal law. The Obama administration was slack in requiring such certifications, but around 2016 wrote a memo saying that yes, 1373 was an applicable federal law, and that the DOJ was going to start fixing this issue and requiring that cities comply in order to receive this certain small category of federal funding. What the Trump administration attempted to do with its sanctuary city executive orders, was to actually carry out the law in this area. Then everyone promptly started yelling like their hair was on fire, and federal courts issued a couple of laughable opinions to thwart the Trump administration every step of the way, even in these little tiny steps that everyone made a big show about but which were in reality infinitesimally small.

      All of that aside. If you really want to know the real uber-right position, it’s that immigration is just another item in the long list of powers that the federal government was never constitutionally granted, and which they have nonetheless assumed.

      1. So, in your view, the Uber-right position is that the federal government has no power concerning immigration? Is that an open borders position, or is there some other institution the Uber-right thinks should be controlling immigration?

        1. I don’t know if it’s “uber-right” necessarily.

          “Is that an open borders position”

          I don’t think it’s an open borders position per se, but yes, it does seem to be popular among open borders folks. Actually, I believe Ilya Somin contends that the Constitution did not grant Congress any power to regulate immigration.

          “is there some other institution [that] should be controlling immigration”

          Powers not delegated to the US by the Constitution are reserved to the States respectively, or to the people.

          1. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.

  5. I haven’t heard any complaints from prominent Dems about red states utilizing anti-commandeering principles for anti-gun-control reasons (or any other purpose).

    I’m specifically talking about claims that the strategy is illegitimate, the way Republicans have talked about sanctuary cities. Of course Dems will say anti-gun-control is a bad idea policy-wise, but that’s very different.

    Are there any examples of quotes you can point us to?

  6. Interesting to me is that, at least in terms of guns, there is also a state/local dynamic. Here in MT, which has declared themselves a 2nd Amdt sanctuary, they also, over the last several years enacted state preemption of local gun laws. Probably the biggest issue there is concealed carry. Used to be you needed a CCL to carry within city limits (including within this town of maybe 1,500). That was abolished, but cities, most notably liberal college town Missoula, tried to impose their own, much more restrictive, rules. Nope. Preempted. Ditto for the state colleges, where all the snowflakes are threatened even by the thought of seeing guns.

    It was somewhat similar with COVID-19 restrictions. The former Dem governor imposed arbitrary, and often idiotic, restrictions. His Republican successor removed them, and the Dem cities, and esp Missoula again, fought him tooth and nail, trying to hold onto masks as long as they could.

    1. What you see is “use of government power is awful when people we don’t like do it, but it’s just peachy-keen-fine when WE do it.”

      The fun part is, if you talk to individuals in the firearms-enthusiast community, you can usually get them to admit that they know people who probably should not have access to deadly weaponry. But they won’t tolerate the idea of disarming any of those people who they’ll admit probably should not be armed, because they just KNOW that any attempt at disarming people who should not be armed is REALLY an attempt to disarm everyone, or part of such an agenda.

  7. The notion of states going their own federalism-inspired ways on gun regulations strikes me as one likely to prove more alarming to gun enthusiasts than to others. Would-be gun controllers in blue states, for instance, would be delighted to apply federalism doctrine to their own states’ political outcomes with regard to guns.

    Having experienced essentially unlimited gun freedom in Idaho in the 70s, and 80s, and then given it up—along with my guns—when I moved to Massachusetts afterward, I have no trouble letting each state decide for itself. As I know from experience, those two states’ gun politics are categorically different, but tend to work toward the satisfaction of each.

    But what about the nationwide patchwork regulatory regime which would result? It would be one which I would view with more equanimity than would gun enthusiasts, I think.

    Viewed generally, l think red-state gun enthusiasts ought to reflect on that. They cherish grievances that other Americans want to impose their will on red states. What would dissatisfaction among red staters about gun federalism be, except frustrated ambitions to impose their own will on blue states?

    Why do gun enthusiasts not get that a demand has implications, that the 2A be regarded as a nationwide standard with little or no flexibility. So long as gun enthusiasts insist on that, then they doom the nation to a never-ending political war about what a single nationwide standard ought to be. That puts competing interests of rival parties maximally at risk.

    Densely settled blue states will prove just as determined to win such a war, and will be just as determined that they fight defensively, as will any of the red states. Experience teaches that in a democratic system the meanings of rights will always get political inflections. That means red state gun enthusiasts can’t safely suppose they have nothing to lose.

    Give up the fight. Let federalism on gun policy reign, and each rival faction will get most of what it wants. Neither side has to suffer a maximal loss. Very few citizens of Massachusetts care at all what the gun regulations in Idaho might be. I wish I could say the same about gun enthusiasts, and their apparent determination to win a national fight for a single standard.

    1. I agree basically. It will be sad when gun enthusiasts in places like New York see their God-given rights to defense of self and others curtailed by tyrants.

      But the alternative — to empower a centralized government — is much worse. All you would then need is a few more braindead liberal tyrants on SCOTUS to “reinterpret” the 2nd amendment.

      Why does everyone want to impose their will upon others in far-flung lands and jurisdictions, with different cultures, beliefs, customs, geography, etc? Why does someone in the backwoods of Alabama govern people in San Francisco, and vice versa? There is no good reason for it. The only reason for it is the story as old as human history, and that is the tendency toward tyranny, the tendency of power to corrupt and expand through conquest, imperialism, subjugation and violence.

    2. Having experienced essentially unlimited gun freedom in Idaho in the 70s, and 80s

      So you were a convicted felon who legally owned fully-automatic firearms that you openly carried to your job at the local public high school?

      I have no trouble letting each state decide for itself

      What other fundamental enumerated rights are you OK with states deciding whether or not you may enjoy?

      Viewed generally, l think red-state gun enthusiasts ought to reflect on that.

      I think you ought to reflect on how utterly and completely full of crap you are, but I don’t see that ever happening.

      But what about the nationwide patchwork regulatory regime which would result?

      You mean…like what we already have, and have always had?

      that the 2A be regarded as a nationwide standard

      Well, gee…that’s kinda’ the nature of the U.S. Constitution, y’know?

      a never-ending political war about what a single nationwide standard ought to be

      So you’re arguing against compliance with and enforcement of a part of the Bill of Rights is bad because nationwide standards are somehow a big problem, but in favor of compliance with and enforcement of federal laws (you know, nationwide standards).

      Very few citizens of Massachusetts care at all what the gun regulations in Idaho might be. I wish I could say the same about gun enthusiasts, and their apparent determination to win a national fight for a single standard.

      That would come as a huge surprise the various nationwide organizations and their deep-pocketed blue state backers who spend all of their time and money doing exactly what it is that you’re so sanctimoniously and inaccurately accusing 2A supporters of doing.

      1. It turns out that people can and do buy guns in gun-friendly states and then carry them over state lines. Doesn’t work the opposite way.

        1. It also turns out that your response has absolutely nothing to do with either Lathrop’s argument or my response to it.

    3. “Why do gun enthusiasts not get that a demand has implications, that the 2A be regarded as a nationwide standard with little or no flexibility. ”

      That problem comes from their own interpretation of the 2A, that the right to “bear arms” includes the (nearly unlimited) right to decide which arms are to be borne. That is a rational interpretation, but it isn’t the only rational interpretation. The funny thing is, the firearms-enthusiast community will speak and act as if they believe the right to bear arms is and should be absolute, but then concede that is not and should not be if you hit them with the right edge cases.
      I don’t need a weapon to protect myself on the suburban streets like the ones surrounding where I live. If I were to be convicted of a crime and sent to prison? well, in that case, I think I would like to have a weapon to protect myself. Some of those dudes have been in for years with nothing to do but lift weights, and I’ve had other things to do.

  8. Whether you’re reholstering your weapon and trying to hit a malicious puppy in the road, accidentally shooting your own child is a small price to pay for freedom.

    1. Another viewpoint is that self defense is pretty important when the police have been abolished and the mob is at your door.

      Also an answer to the question “why does anyone need an AR-15”?

      1. Oh absolutely. The chances of a mob appearing at someone’s door are extremely high. Even more likely is an attack, or multiple attacks, from one or more MS-13 kill teams. At the least everybody needs protection from antifa blowing up their farms.

        1. There are around 500,000 – 3,000,000 or more defensive gun uses per year in the US. Guns save more lives than COVID kills.

          1. Oh, yeah, absolutely.

          2. Ha ahahahaha that is the funniest thing I think I’ve read on Volokh all these long years.

            1. Take it up with the CDC.

              Almost all national survey estimates indicate that defensive gun uses by victims are at least as common as offensive uses by criminals, with estimates of annual uses ranging from about 500,000 to more than 3 million, in the context of about 300,000 violent crimes involving firearms in 2008.

              https://www.nap.edu/read/18319/chapter/3

              1. Because all those people would have DIED otherwise! And because there are otherwise no deaths from gun violence.

                lololol… I mean you’re joking, right?

                1. Just take the L, admit you were wrong, and try to engage information that challenges your views rather than dismissing it.

                  1. You obviously don’t understand comedy. Comparing a “defensive use of a gun” to a covid death is the funny part.

                    Unless you’re offended about making lite of covid deaths, in which case… I really don’t care, it’s still funny.

              2. “defensive gun uses by victims are at least as common as offensive uses by criminals, with estimates of annual uses ranging from about 500,000 to more than 3 million, in the context of about 300,000 violent crimes involving firearms in 2008”

                That’s a rate of 10:1 at the high end. Is that like the guy who tried to stick up a bar only to find that it was at that moment hosting a cop’s retirement party?

                1. That’s a rate of 10:1 at the high end. Is that like the guy who tried to stick up a bar only to find that it was at that moment hosting a cop’s retirement party?

                  Uh, the quote in question wasn’t saying that 500K-3M estimate were all defensive uses of firearms against gun-wielding assailants (with the latter being what the 300K figure referred to). Many would have been, no doubt. But a great many would not have been. There are many cases in which a firearm might be legitimately employed to defend against/deter a criminal offense, but where the aggressor was not similarly armed. Let’s see if you can figure out what some of those possible uses might be.

                  1. The claim was that guns were saving lives. chasing away the kids who were trying to prowl your car is probably counted among the 500,000 count at the high end, but it isn’t saving any lives.

          3. “There are around 500,000 – 3,000,000 or more defensive gun uses per year in the US. Guns save more lives than COVID kills.”

            That’s an amusing theory.
            You’d have to be very creative in defining “defensive” to get numbers like that.
            If somebody has taken a shot at your head, but you have a gun, how does that gun defend your head?
            Now, it certainly IS possible to use a gun to avoid violence. This is done by showing that you are armed, and encouraging the violent jackass who’s busting up your bar to go somewhere else. But that’s not “defensive”. It’s a threat of violence, or it isn’t working. Git them before they gits you is also not “defensive”, it’s having a superior offense.

      2. “Another viewpoint is that self defense is pretty important when the police have been abolished and the mob is at your door.”

        So don’t abolish the police. The only place I’ve ever seen that did so was in (Republican-controlled) southern Oregon counties, where the antipathy to paying property tax caused the counties to shut down most of their services, including enough of the Sheriff’s deputies that the state was considering taking over law-enforcement in those counties..

    2. Wow.

      That’s about all I can say re your “comment.”

  9. The argument that this calls for federalism is total BS. It’s the very second amendment to the constitution that citizens have the right to bear arms.

    For the ever so hypocritical liberal mindset let me say that it’s like Alabama decided to ignore the abolition of slavery, also a constitutional amendment. OK?

    Of course not

    AL actually did practice slavery light aka Jim Craw until those laws were struck down.

    1. The Supreme Court will be more liberal again one day, and will likely interpret the 2nd amendment a bit differently. For example, they might fail to find the words “hunting” and “self-defense” in there at all, and instead see “well-regulated.”

      The chances of the pendulum swinging far left in the future are lower if it’s not pushed super far right first. If blue states already basically have what they want, there’ll be less reason for a future court to get involved.

      That’s why federalism.

    2. “The argument that this calls for federalism is total BS. It’s the very second amendment to the constitution that citizens have the right to bear arms.”

      You’re choosing to interpret the “right to bear arms” as meaning that you have the (almost unlimited) right to select which arms you will bear. That’s not the only possible interpretation.

  10. The article says sanctuary measures have passed a committee in the Texas Legislature. In fact, the lege has passed a bill and sent it to the governor for signature. There’s no reason to think he’ll not sign it.

    https://capitol.texas.gov/tlodocs/87R/billtext/html/HB02622F.htm

    1. I was scrolling and accidentally flagged your comment! I don’t know how to unflag.

      Admins, it was just an accident!

  11. “Sanctuary City” status is a response to the fact that the federal government set up a system in which they make some residents illegal, but (intentionally) do not actually remove all the illegal residents. These are people who can be outright criminals, but also can be victims of crimes and witnesses to crimes as well. It is very difficult for the state and city to run their justice systems if the feds can (and do) show up to detain crime victims and witnesses as well as the criminals. It causes victims to stop reporting crimes an witnesses to decline to come forward.
    If the federal government funded enough hearings officers to hold deportation hearings for the vast backlog of immigration cases, then there wouldn’t be a pool of illegal immigrant victims and witnesses to worry about protecting.

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