Texas is poised to become the 11th “Second Amendment Sanctuary” state in the U.S., joining a mushrooming movement of red states thumbing their noses at the prospect of Biden-backed gun control by declaring themselves legal safe havens for gun owners.
Before President Joe Biden had even moved into the White House, anti-government extremists, militias, and right-wing politicians alike were stoking fears of a looming gun-grabbing campaign.
Throughout his campaign, Biden repeatedly vowed to be an effective leader on gun control, and has called for the reinstatement of the assault weapons ban—the holy grail for gun control groups. Last month, on the heels of several mass shootings, he announced that he’d directed the Department of Justice to issue new guidance designed to curb untraceable ghost guns, and called on Congress to pass legislation to improve the background check system.
Even though Biden’s actions have so far fallen short of his lofty campaign-trail promises, they set off alarm bells throughout red-state America.
“Biden is threatening our 2nd Amendment rights,” Texas Gov. Greg Abbott wrote on Twitter. “He just announced a new liberal power grab to take away our guns. We will NOT allow this in TX. It’s time to get legislation making TX a 2nd Amendment Sanctuary State passed and to my desk for signing.”
Texas’ “Second Amendment Sanctuary State Act” passed the House last week along party lines. If enacted, it would authorize withholding of state funds from any localities that try to assist with the enforcement of federal gun laws—including background checks, licensing programs, “red flag laws” and buy-back programs to get people to turn in their weapons.
The bill also encourages Texans to file complaints with the state attorney general if they find evidence that their local governments are assisting with the enforcement of federal gun laws. The bill has a companion bill pending in the Senate that’s similar but doesn’t address some of the more specific gun laws like the House bill does.
If it becomes law, it would make Texas the most extreme gun sanctuary state, because it appears tailored to block specific gun laws that have widespread public support—and are core to Biden’s agenda.
In the month of April alone, six states—Arizona, Montana, Nebraska, North Dakota, Oklahoma, and West Virginia—became so-called gun sanctuaries. But the specifics of the bills range widely, from political grandstanding, to having the potential to trigger a nasty constitutional showdown.
Nebraska and North Dakota passed “proclamations” which, ultimately, appear little more than symbolic gestures designed to give their governors an opportunity to flex their pro-gun credentials. The Montana law seems tailored to preempt a possible assault weapon ban, because it bars state and local law enforcement from enforcing any federal ban on ammunition or guns. Arizona’s new law prohibits localities from enforcing federal gun laws that are inconsistent with state gun laws.
At least seven more states, including Texas, have meanwhile introduced legislation proposing Second Amendment sanctuary protections. Four states—Alaska, Idaho, Kansas, and Wyoming—passed gun protection laws during the Obama administration (Kansas wound up in a drawn-out legal battle over its law, which said local officials who enforced federal gun laws could be convicted of crimes).
Symbolic or not, Giffords director of litigation Hannah Shearer says these laws will create confusion on a local level. “Either way, making it a state policy to not enforce federal gun laws is going to compromise public safety and leave state and local officials confused about what they are allowed to do to help with the enforcement of federal gun laws,” Shearer said.
The surge in energy behind this movement comes from the confluence of anti-government rhetoric now dominating mainstream GOP politics, and strategizing around the new conservative majority on the Supreme Court, says Robert Spitzer, professor of political science at SUNY Cortland and author of “The Politics of Gun Control.”
“It dovetails with the broader antagonism toward government that was fed during the Trump years and culminated with the January 6 attack on the U.S. Capitol,” said Spitzer. “Even though just a handful of them carried guns, it was still a part of that larger movement that is still very much connected to guns.”
In addition to the ideological, anti-government undercurrent driving this movement, there’s a longer game in play. “We have a Supreme Court that seems ever more receptive to expanding gun rights and knocking down gun laws,” said Spitzer. “That fuels the idea that gun laws are somehow against the Constitution, or the Second Amendment, which is not true.”
The Second Amendment Sanctuary movement started in counties that were largely in conflict with Democratic-run state legislatures over guns. It began after the mass shooting in Sandy Hook Elementary School in 2012 but caught fire on a grassroots level during the Trump years, in the wake of the 2018 mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida.
The Parkland shooting created renewed impetus behind certain gun control measures, like “red flag laws,” which gave courts or cops an avenue to temporarily confiscate guns from people believed to be a danger to themselves or others. After Parkland, swaths of conservative counties in blue states began passing local ordinances giving their sheriffs the authority to block state gun laws they didn’t like.
The movement co-opted language from the immigration sanctuary movement, wherein states or cities said they wouldn’t do the bidding of the Trump administration’s anti-immigration agenda and declared themselves sanctuaries for undocumented immigrants.
Hundreds of counties across at least 40 states now have some form of gun sanctuary status. The movement also borrowed language from the anti-government movement, which, together with a set of so-called “Constitutional Sheriffs,” have been firmly behind the notion of Second Amendment sanctuaries from the get-go.
Now, with Trump gone and President Joe Biden in the White House, the dynamic of the Second Amendment Sanctuary movement has ramped up. Biden promised to usher in a new era of gun control for the U.S. Since he took office in January, and after several mass shootings, he’s directed the DOJ to issue new guidance designed to curb the proliferation of untraceable “ghost guns.” He’s also continued to call for the reinstatement of a federal law banning assault weapons like the AR-15.
But while Biden’s actions so far have irked the gun world, his administration has not yet taken on the gun sanctuary movement, and it’s unclear whether it will in the future.
“Just passing a resolution that sits as a symbolic thumbing the state’s nose at the federal government’s gun laws—they [the Biden administration] would probably be advised to leave it alone,” Spitzer said. “But if it has any material consequence, and it depends on what the consequence is, it might involve sending in federal law enforcement authorities. Perhaps in an extreme case, it could involve withholding of federal highway money, for example, if states don’t fall into line.”
Spitzer noted that in 1984 Congress threatened to cut highway funding to states that weren’t enforcing the National Minimum Age Drinking Act, which raised the national driving age to 21. And Trump repeatedly threatened to withhold funding from states that had declared themselves immigration sanctuaries, including COVID-19 aid.
Robert J. Cottrol, professor of law at George Washington University’s Law School, agreed it’s too early to know whether these state sanctuary laws put the U.S. on track for a constitutional crisis. As of now, Cottrol says, it appears that the sanctuary states aren’t overreaching.
“You can’t forcibly deputize state and local police, and force them to enforce federal law as such. We saw that again with the immigration issue,” said Cottrol. “We potentially might see that again with the Second Amendment or gun issue, and the Biden administration.”
“It’s quite one thing if state authorities are saying they won’t enforce a federal law and another if they’re saying they will actively resist and act against a federal law,” Cottrol added.
The state-level sanctuary movement does offer even more of an obstacle to Biden’s gun agenda, though—in particular reinstating the assault weapon ban, which was law in the U.S. between 1994 and 2004.
Not only is it unclear that the ban would muster enough support even among Democrats, but there are approximately 20 million assault rifles in circulation in the U.S. population. That, together with a slew of states declining to enforce such a ban, would make it very difficult to enforce.
Said Cottrol: “How do you go about enforcing a law that's going to be resisted by tens of millions of people, without cooperation of state authorities?”