Why 'Sanctuary Counties' Supposedly Protecting Gun Rights In Wisconsin May Violate The Constitution

Municipalities cannot just ignore gun laws from state and federal governments 

Wisconsin Gov. Tony Evers called a special legislative session this fall to address the issue of gun laws in the state. Instead of taking the issue seriously, Republicans in the legislature opened, and then closed the session out within seconds.

Their decision to do so was irresponsible. Gun laws have been loosened tremendously over the past decade, thanks to Evers's predecessor, former Gov. Scott Walker. Many Republican lawmakers who are in office today also helped to promote or write the changes to gun laws back then.

What was meant to be a deterrence to violence, however, actually had the opposite effect: murder and crime rates went up, and Wisconsinites didn't become safer under the changes, as was promised by that governor and GOP legislators at the time.

Opponents to new proposals from the Democratic governor worry that the ideas he and other Democrats are putting forward would hamper the rights of lawful gun owners. But the changes Evers is calling for aren't that egregious, even to the common gun enthusiast.

According to WPR, Evers is calling on the legislature to pass, at a minimum, stronger background checks on every gun sale. That means closing the "gun show loophole," which permits anyone to buy a gun at such shows across the state without having to submit to a background check — even felons or other violent criminals who are forbidden from owning them.

Evers is also asking the GOP legislature to support "red flag" laws, which would allow concerned friends or family members of an individual to petition a judge to remove the right of that individual, temporarily, from owning weapons, if the judge deems them to be a danger to themselves or to others. A process for that individual to appeal the ruling by the judge would exist.

Both proposals have widespread support from Wisconsinites, which is a rarity in today's politics. Over 4-in-5 state residents support red flag legislation; when it comes to background checks on every gun sale, the same numbers are supportive of the idea.

"Sanctuary County" Declartion In Northern Wisconsin

There are a small number of Wisconsinites who oppose those ideas, however, and some counties are trying to prevent such laws from being implemented. In Florence County this past week, the county board voted unanimously to describe its jurisdiction as a "sanctuary county" for guns, in large part because of Evers's desire for stricter rules.

The county, which is located near the Upper Peninsula of Michigan and has a population of about 4,300 residents, would essentially allow its law enforcement agencies, including its sheriff's department, to ignore any laws that come down from Washington D.C. or Madison that disallow people's rights to own weapons.

The language of the resolution omits who determines whether a law is unconstitutional or not, leaving it ambiguous and seemingly allowing local lawmakers or law enforcement agencies to make those interpretations.

"What we’re saying is the Second Amendment allows for law-abiding citizens to be able to protect their homes and bear arms," Florence County Board chair Jeanette Bomberg said.

Is this legal? Comparisons to sanctuary cities for immigration are "apples to oranges"

Can a county just say it's not going to enforce federal or statewide gun laws? In most cases, probably not. For one, it violates the standard of the Supremacy Clause found in the Constitution, which states that governments that are larger and inclusive of smaller governments take precedence when it comes to their own lawmaking.

But there are exceptions. The U.S. Supreme Court, for example, has ruled that on certain types of laws, the federal government cannot compel local governments to act in ways they do not like. This is where things get tricky.

Although the Trump administration is making efforts to change things, sanctuary cities, which protect undocumented immigrants living in their limits, are currently deemed legal under the law. These cities have passed ordinances that declare their law enforcement and other agencies will not cooperate with federal officials when it comes to capturing and deporting immigrants from within their areas.

Such arguments have held up in the courts, according to the Washington Post. The Supreme Court has held that the 10th Amendment protects such localities against being compelled to enforce the higher laws. In other words, the feds can take action within such sanctuary cities, but they cannot require local governments to do whatever they ask.

The "sanctuary county movement," of which Florence County is a part of now, seeks to take the sanctuary cities idea and apply it to guns. But there's a problem for that movement: other laws and restrictions placed on localities by the higher-ups do apply. The Second Amendment is one of those areas.

Some Constitutional provisions have been what's called "fully incorporated" by the 14th Amendment, while others are not. The "right to bear arms" is one of those provisions.

Here's how it works: if a law is passed by the federal government that deals with guns, and it passes muster in the courts, the Supreme Court has said in the past that the law must be enforced across the states and local governments as well, regardless of their own legal beliefs. This is why a city like Chicago was forced to change its gun laws after the Supreme Court ruled they violated residents' rights.

In short: some laws passed by larger governments can be "ignored" if localities want to have no part in them. The feds can still enforce the laws themselves, but the local governments don't have to cooperate directly with them. On other matters, however, the local governments cannot ignore the federal standard — including on gun issues.

Local governments — including Florence County — cannot become "sanctuaries" for unfettered gun use or ownership

If things remain interpreted in the courts as they do today, gun laws and standards handed out by the federal government must be respected, including by any county's law enforcement agencies. This renders Florence's declaration moot, but it's unclear whether the county will adhere to those standards or not, which could be incredibly problematic.

Such "sanctuary counties" are essentially saying that when it comes to guns, they don't want to follow the rules. Well, that's too bad — the courts are very clear that every jurisdiction has to follow the same interpretation of the law put forth. They cannot just make a declaration like this, and decide to ignore mandates from above, when it pertains to gun laws.

Florence County chair Bomberg said people in her jurisdiction are "scared" of gun laws being forced down their throats. But the push for more restrictions, at least at the state level, are reasonable changes. A person who is violent, or has a record of engaging in violent acts in the past, should be restricted from owning weaponry that can make future acts of aggression even more dangerous.

To be sure, such individuals should have a means to get such restrictions lifted. But the people of this state are very on what they want: background checks and red flag legislation. Those types of laws do not hinder a person's right to protect themselves, especially when it comes to the "well-regulated" rights found within the interpretations of the Second Amendment.

Featured image credit: Nikon D3300/Max Pixel

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