New Second Amendment Sanctuaries Could Face Legal Scrutiny

[Charlie T Waite]

A couple of weeks ago we reported on a pair of Oregon counties that approved Second Amendment Sanctuary ordinances on Election Day, making it a crime to enforce state-level gun laws like “red flag” firearm seizures and Oregon’s concealed carry statute. It took a little while, but now the state’s media is starting to take notice, and on today’s Bearing Arms’ Cam & Co. we take a closer look at some of the coverage of the pro-gun referendums in Columbia and Umatilla counties.

The biggest question is whether the new ordinances can stand up in court, or if they’re even capable of being enforced. As The Oregonian reports, at least one of the district attorneys in the new sanctuaries says he still plans on enforcing red flag laws, even if that violates the county’s new Second Amendment Sanctuary Ordinance. If he were to ignore the new sanctuary law, who would prosecute the prosecutor?

Legal experts — and even some national gun rights advocates — say the resolutions are on shaky ground because they require police to ignore laws they’re sworn to uphold.

The measures also appear to undermine the state’s legal authority to regulate guns. Under Oregon law, the power to regulate almost all aspects of firearms rests with the Legislature.

Umatilla County District Attorney Daniel Primus doesn’t expect the voter approval to have much of a practical effect for his office. He will uphold the law, he said.

“I took an oath,” Primus said, “and I am going to follow that oath.”

Telling law enforcement to ignore state-level laws that have been upheld by the courts is going to be problematic from a legal perspective, and the law still lacks an enforcement mechanism for public officials who continue to enforce the current state statutes on the books.

I suspect, however, that most voters who approved the measures care less about the legal intricacies of enforcement and more about sending a message to lawmakers in Salem to back off their push to impose more restrictions on the Second Amendment. In that, they may have gotten their wish. While Democrats maintained their supermajority in the legislature, there are enough Republicans to deny Democrats a quorum in the state Senate if they walk out, which they’ve done repeatedly over the past year to stop votes on controversial pieces of legislation.

As for Second Amendment Sanctuaries, I actually think it’s generally both easier and more effective to push for Second Amendment Sanctuary resolutions over ordinances. As one 10th Amendment advocate told The Oregonian, 2A sanctuary supporters don’t have to reinvent the wheel here.

Michael Boldin, executive director of the Tenth Amendment Center, a small organization that describes itself as a “non-partisan think tank that supports the principles of strictly limited constitutional government,” called the measures “convoluted, confused, messy at best.”

He said he has encouraged gun rights activists to model their ordinances after immigration sanctuary laws, like the one passed in Oregon decades ago that forbids local law enforcement from using public resources to find or detain undocumented immigrants not suspected of a crime.

Boldin’s group promotes the controversial theory that states may nullify federal laws they consider unconstitutional.

Oregon’s gun sanctuary measures don’t just address federal gun laws. They target state ones too, and that may undermine their effectiveness.

“I actually will tell you right out front, I am fully on board with the concept,” Boldin said. “I am with the gun rights people in concept, but I think they have crafted these so poorly that in practice they actually do nothing.”

Looking at the language of sanctuary policies for illegal immigrants is a good place to start, and as Boldin notes, the ordinances or resolutions typically condemn the use of local funds to enforce federal immigration laws. When it comes to 2A Sanctuaries, we’ve seen similar language used in many cases, but we’ve also seen some resolutions encourage law enforcement not to prioritize the enforcement of certain gun control measures.

Law enforcement uses discretion every day in terms of enforcing the laws, and there’s absolutely nothing wrong, legally speaking, with local police deciding that enforcing non-violent possessory offenses like carrying without a license is going to be a priority. The same holds true with enforcement of a gun ban, magazine ban, universal background check law, or any of the other proposals frequently tossed out by anti-gun activists.

Of course, in order for that to be effective local law enforcement has to go along, which gets us back to the same issue that Umatilla County has with their District Attorney vowing to ignore the local ordinance. Ultimately, in order for Second Amendment sanctuaries to be truly effective, they have to represent not only the will of the voters, but the will of local politicians too.

https://bearingarms.com/cam-e/2020/11/18/new-2a-sanctuaries-legal-scrutiny/