Last fall, The Advocate reported on a new type of local sanctuary law being passed in counties around Oregon, known broadly as “Second Amendment sanctuary” laws. They give local law enforcement officials like sheriffs the authority to interpret whether state and federal gun laws conflict with the Second Amendment of the Constitution, and allows them to restrict local resources from being used to enforce conflicting laws.
Eight Oregon counties passed a version of this law in last November’s elections: Baker, Columbia, Douglas, Klamath, Lake, Linn, Umatilla and Union. Two counties, Lincoln and Jackson, rejected it.
Supporters believe they are a necessary legal defense against state and federal governments passing laws which infringe on their legal right to carry firearms. Some legal experts and supporters of gun control laws argue localities like cities and counties cannot decide for themselves to override federal and state law.
In Oregon, gun rights activists and members of controversial militia groups backed these laws, and are beginning to turn success at the ballot box into a national movement of localities passing these laws in order to “nullify” state and federal gun control laws. Some of these “nullification” laws are being challenged in the courts, and the outcome of these political and legal battles has the potential to affect the entire legal framework for sanctuary cities, including those established to protect illegal immigrants from federal immigration enforcement.
From Congress to City Council
Much of the debate around gun control has historically centered around Washington, D.C., using the time-tested tools of influence like expensive lobbying to control outcomes in the law. Today, the important political fight has moved to city council chambers.
This shift down into states and counties was precipitated by a few things. One is the dissolving importance of the NRA, partly because of federal gridlock on gun control issues and partly because of the NRA’s own internal struggles with allegations of corruption and financial insolubility. The other is that, as conservatives and Republicans have steadily gained power in local and state governments over the last 10 years, they have realized how much states are capable of doing outside the purview of the federal government. The stark difference between the gun laws of California and Arizona demonstrates the effectiveness of this local political power.
The Pacific Northwest, and Oregon in particular, is no stranger to the more libertarian aspects of gun control politics, some of which is referred to as the “Patriot Movement.” During the 2016 Malheur Wildlife Refuge standoff, occupiers claimed their protest was over land use. However, before and after the occupation, reports focused on the amount of weaponry occupiers brought. An Idaho man who joined the occupiers was later arrested on multiple federal weapons charges, including the possession of a stolen Browning M2 .50 caliber machine gun.
Sanctuary from the Law
According to the Pew Research Center, more than 200 counties across nine states have voted not to enforce state gun control laws. Oregon, along with, Colorado, Illinois, Maryland, North Carolina, Nevada, New Mexico, New York, and Washington all have counties which have passed “nullification” laws known as Second Amendment sanctuary laws. In five of these states (CO, IL, NM, NY, WA), at least half of the state’s counties have passed a version of this law.
The majority of these counties have passed these laws within the last year, in tandem with an increased urgency for the passage of gun control legislation at the state level. Reporting from The New York Times and The Giffords Center showed that in 2017, 20 bills were passed nationwide that increased gun controls, and in 2018 that rose to almost 70 bills. Also in 2018, legislators at the national level rejected 90 percent of bills supported by the NRA.
This surge of local legislation began around the time of the shooting at Marjory Stoneman Douglas High School in Parkland, Florida in February 2018, when a former student shot and killed 17 students and staff – the deadliest school shooting in the country’s history. The Parkland shooting came only five months after 58 people were killed and 422 injured in Las Vegas, Nevada in October 2017, currently the deadliest public mass shooting in the country’s history.
Some supporters of Second Amendment sanctuary laws openly acknowledge they expected these events to generate more pressure to pass gun control laws and had already planned to resist it.
Support In Oregon
Last November, there was noticeable organizational support for passing Second Amendment sanctuary laws in Oregon — known locally as the “Second Amendment Preservation Ordinance” or SAPO. This campaign included government lobbying organizations like the Oregon Firearms Federation (OFFPAC), but also far-right paramilitary and militia groups like the Oath Keepers and the Three Percenters.
OFFPAC is a gun rights advocacy group who prides themselves on being a “no-compromise” organization. They were the largest donor to the Committee to Preserve the Second Amendment, which supported the Second Amendment sanctuary ballot measures in Oregon in 2018. OFFPAC donated almost $4,500 by mid-November 2018, which was a majority of the committee’s funds at that time.
The Oath Keepers are a national militia group whose members believe their oath of law enforcement or military service should continue into their civilian lives. Over the past few years however, many of their members have been associated with controversial incidents. Oath Keepers members were called into Ferguson, Missouri during the 2014 protests to act as vigilante police, and to the southern U.S. border last fall to forcibly stop immigrants from crossing. Neither action was sanctioned or requested by actual law enforcement or border protection.
The Three Percenters, another loosely-organized paramilitary group which grew out of the same community as the Oath Keepers, are pledged to engage in armed resistance if they determine their constitutional rights are being threatened. Their members were present at the Malheur Wildlife Refuge standoff in 2016 (some claimed they were there to prevent a “Waco-style situation”), and at the fatal Unite the Right rally in Charlottesville, Virginia in 2017. They have also provided security for Patriot Prayer, a right-wing group which organizes often-violent “counter-protests” in Portland.
The Anti-Defamation League and the Southern Poverty Law Center identify both organizations as part of the “anti-government extremist” movement.
According to reporting from the ADL, the Oath Keepers have encouraged their members still in the military or law enforcement to take an oath not to obey certain orders, like “to put American citizens in detention camps,” or “to disarm the American people.” These orders echo fears tied to long-standing conspiracy theories about the “New World Order” or the U.S. “Deep State.”
The SPLC reported that, in late February 2019, Three Percenters member Tyler TenBrink was sentenced to 15 years in prison for firing a gun at protestors opposing self-described “alt-right leader” Richard Spencer at a speaking event in Gainesville, Florida in 2017. TenBrink and his brothers drove from Houston, Texas to attend the event, and video of their trip shows them throwing both Nazi salutes as well as a three-fingered hand gesture commonly associated with the Three Percenter mythology.
Tom McKirgan of Camas Valley is a Three Percenters member, and was also the Southern Oregon coordinator for the Committee to Preserve the Second Amendment. He told OPB’s Jonathan Levinson before the elections last fall that he and other members aren’t “maniacal or fanatical…they’re focused on protecting individual rights.”
“And if we have to fight physically to do it we will,” McKirgan added, “It’s just that simple.”
A Problem With Authority
The legal trouble behind some of the measures passed in Oregon relate to the explicit discretionary powers they grant to sheriffs. Those opposed to these laws point out that the power to decide whether a law is constitutional traditionally belongs to the courts, not to local officials like sheriffs. Both legal experts and even the public voices of the Second Amendment sanctuary campaign agree that the sheriff’s authority to decide if a law is constitutional will likely be struck down by the courts.
However, the second half of the Second Amendment sanctuary law structure follows a different logic. The refusal to provide resources to enforce laws the community disagrees with, they argue, already exists in practice. It is the same legal structure that allows cities or counties to adopt “sanctuary” status, refusing to cooperate with federal officials on immigration. Second Amendment sanctuary supporters know this – that’s where they got the idea. They believe this precedent allows them to refuse cooperation with state and federal officials over gun control laws, and they know that mounting a court challenge would, in turn, challenge the underlying principle of the law that could compromise the legal structure for immigration sanctuary cities as well.
This underlying principle is known as the “anti-commandeering principle,” a term which emerges regularly in this legal debate. It doesn’t exist in the text of the Constitution itself, but instead through the Federalist papers, a series of public essays about the Constitution by early American politicians like James Madison, and through the history of decisions made in the Supreme Court.
It was a Supreme Court case that cemented the “anti-commandeering principle.” In Printz v. United States (1997), Sheriffs Jay Printz and Richard Mack successfully sued the federal government over a provision of the Brady Handgun Violence Prevention Act of 1993 that required background checks on all handgun purchasers. The Court struck down the background checks provision, deciding that the federal government could not command state officials to take actions against their will.
Sheriff Mack re-entered the public spotlight in 2013 (after several failed runs for various public offices following the case), when he openly supported a Florida sheriff who had gained national media attention for refusing to prosecute someone for carrying a concealed weapon without a permit. The publicity garnered Mack the attention and eventual support of right-wing agitator and conspiracy theorist Alex Jones.
Jones gained widespread attention for publicly denying the events of the school shooting at Sandy Hook Elementary in Newtown, Connecticut in 2012, claiming the deaths of 26 people, including 20 children, to be a staged operation by the Obama administration to implement gun control legislation. Jones provided Mack a platform on which Mack could build a different sort of political career.
Mack founded and leads the Constitutional Sheriffs and Peace Officers Association. They represent over 450 current and former sheriffs across the country.
Their members include former Maricopa County, Arizona sheriff Joe Arpaio, an infamous and controversial man. The allegations against Arpaio throughout his career include running “tent prisons” under inhumane conditions, failing to investigate hundreds of reports of sex crimes in his jurisdiction, and framing a young man for an assassination attempt against himself as a publicity stunt, among others. Arpaio was convicted for criminal contempt of court in July 2017 for ignoring court orders to stop his office from engaging in racial profiling behaviors while conducting immigration checks, which the court had found unconstitutional. One month later, in August 2017, President Donald Trump pardoned Arpaio’s contempt charge.
Also among their membership is former Milwaukee County, Wisconsin sheriff David Clarke, now a conservative television and social media figure. Clarke was featured in public radio ads in 2013 telling people to arm themselves, because the police could not be relied on for timely protection. He has been extensively involved with the NRA, including with Maria Butina, the now-imprisoned Russian spy who operated a fake Russian gun rights organization connected to the NRA. During Clarke’s tenure as sheriff, he and the sheriff’s office were also accused of abusing inmates, including the use of shackles on pregnant inmates during labor.
CSPOA’s position on gun control laws is clear.
“Gun control in America is against the law,” Mack told reporters recently.
Mack’s influence on local gun rights activists is apparent from their uncompromising stance and shared rhetoric. Kevin Starrett, a spokesperson for OFFPAC, was asked by reporters which specific laws his organization opposed, and he echoed Mack’s position.
“Not to sound snarky, because I don’t mean to,” Starrett said, “but we object to all of them.”
Controversial and fringe political figures like Arpaio and Clarke are not the only members of CSPOA who support these “Second Amendment sanctuary” laws. Sheriffs and other local law enforcement officials across the Pacific Northwest (and dozens more across the country) openly support them as well. Some just like the political statement being made about Second Amendment rights, but don’t believe the laws are actually enforceable. Others seem willing to take the legal rationale of “nullification” to its extreme, including using these laws to prevent state and federal police from enforcing gun laws locally.
In Oregon, Sheriffs John Hanlin (Douglas County), Craig Zanni (Coos County), and Jim Yon (Linn County) have all told reporters that the passage of the “sanctuary” laws in their county won’t affect the way they enforce the law. Hanlin and Zanni both voiced support for the political message of the law, but Sheriff Yon made a point to say that “at the end of the day, it is up to the courts to have the final say on what is constitutional.”
Law enforcement in Washington State have shown a wider range of reactions to state gun control measures. Unlike Oregon, the majority of Washington’s counties have already passed some kind of “Second Amendment sanctuary” law.
60 percent of voters in Washington recently passed Initiative 1639 (I-1639), which raises the age required to purchase semi-automatic assault rifles from 18 to 21. Over 20 county sheriffs have declared their opposition to enforcing this law. Some are more cautious, like Sheriff Brad Thurman in Cowlitz County, who cited an ongoing legal challenge from the NRA that he claimed would clear up the constitutional questions. Others, like Klickitat County Sheriff Bob Songer, said not only would he not enforce the new law, but was considering preventing other agencies from enforcing them locally.
Questionable Law, Effective Politics
Gun rights organizers like Rob Taylor, who led the Committee for the Preservation of the Second Amendment last fall, were aware of the potential legal issues with the original bill well before the election.
In an email exchange with The Advocate last fall, Taylor confirmed that the committee was prepared with a different version of a “Second Amendment sanctuary” law which removes the provision allowing local law enforcement to decide whether gun laws are constitutional. However, it retains the directive on the city or county “not to aid, assist or dedicate any funds or personnel for the enforcement of any state or federal laws concerning firearms or firearms accessories.”
In a public online post from January 2019, Taylor lays out why he thinks the sheriff’s constitutional powers could be overturned, but also why protecting the remainder of the bill is the better option for supporters to pursue. Sections of this post were almost verbatim copies of the response The Advocate received last fall.
While it may seem like Taylor and others are willing to water down their original measure, discretion over control of personnel and resources is still a powerful structural tool in shaping community law enforcement. Immigration sanctuary laws, regardless of their political intention, have caused problems for Immigration and Customs Enforcement, which was part of the goal of the sanctuary laws. Second Amendment sanctuary laws could create the same kinds of enforcement issues for both federal and state law enforcement working to enforce gun control if county sheriffs are allowed to simply refuse cooperation.
The relation between these two kinds of laws is close enough that legal challenges to the “anti-commandeering principle” in order to disrupt Second Amendment sanctuary laws could also affect the fate of immigration sanctuary laws.
Even this revised law faces challenges from administration and the judiciary. In January, the Columbia County clerk’s office rejected an initiative petition by Chris Brumbles of Deer Island to add a ballot measure on the 2020 ballot for the revised “Second Amendment sanctuary” law, even without the powers for sheriffs. Brumbles’ version failed to meet the county’s detailed criteria for a ballot measure. However, Columbia County accepted and passed the original ballot measure last year, with 55 percent in favor.
Brumbles maintained to reporters that the initiative “is totally legal,” adding “I believe if they go by the law, we’re going to win this.”
A Delicate Balance
Second Amendment sanctuary laws are growing most quickly in states with Democratic governments that have passed state gun control measures, but have large areas of conservative, rural citizens who feel as though urban liberals force their agenda on the rest of the state.
“Illinois is actually two states,” Richard Pearson, executive director of the Illinois State Rifle Association, told reporters, “You have Chicago, and you have Illinois.”
“If they [Chicago] want to have their own laws, that’s fine,” said David Campbell, a board member in Effingham County, IL, “Don’t shove them on us down here.”
In Oregon, this refrain is familiar, as there has long been a tension between the liberal-leaning voters in large cities like Portland and the more rural southern and eastern parts of the state. As the legislature discussed a bill to close the “boyfriend loophole,” to prevent violent stalkers and domestic abusers from getting or keeping firearms, the rhetoric of local control was present in the discourse at the Capitol.
“My concern is with the power of the state of Oregon,” said House Minority Leader Carol Wilson (R-Grants Pass), who opposed the bill, “Counties can already do essentially what this bill does.”
The “boyfriend loophole” bill passed in May 2019, but a walkout by an emboldened Republican “super-minority” ended with Democrats giving up a more comprehensive gun control bill strongly supported by activists and students.
Along with the Columbia County lawsuit, other Oregon counties are publicly discussing voting on “Second Amendment sanctuary” laws. Yamhill County Commissioners met in late March to discuss it, and the Curry County Commissioners held a workshop on it in late April.
These laws push on issues of state and federal power, community decision making, and core questions about constitutional rights. They bring these issues down from the lofty world of laws and courts and place them in the center of our towns and schools.
As the stage for national political battles moves into town squares, local communities may find themselves responsible for bearing both the cost and the responsibility over these issues, forced to make decisions on matters of freedom and responsibility, or even life and death.
By Ian MacRonald