The Applicability of Intergovernmental Immunity Doctrine to Second Amendment Sanctuary Laws.

• Author: Biffignani, Dominic

TABLE OF CONTENTS ABSTRACT 369 TABLE OF CONTENTS 371 I. INTRODUCTION 372 II. LEGAL BACKGROUND 374 A. The Federalist Scheme: The Supremacy Clause and the Tenth 374 Amendment B. Federal Preemption 376 C. Anticommandeering Doctrine 379 D. Intergovernmental Immunity Doctrine 381 1. The United States Supreme Court's Broadening of the 383 Doctrine: North Dakota v. United States 2. Affirmation of the Expanded Doctrine: United States v. 384 Washington III. RECENT DEVELOPMENTS 387 A. The Ninth Circuit's Recent Gloss on Intergovernmental 387 Immunity: United States v. City of Areata & Boeing v. Movassaghi B. Intergovernmental Immunity in Immigration: United States 389 v. California; GEO Group, Inc. v. Newsom; and McHenry County v. Kwame Roul IV. APPLYING THE EXPANDED DOCTRINE TO SECOND AMENDMENT SANCTUARY 396 LAWS A. Missouri (Second Amendment Preservation Act) 398 B. Wyoming (Wyoming Firearms Freedom Act) 402 C. Alaska (Alaska Firearms Freedom Act) 403 D. Texas 404 E. Arizona, Montana, North Dakota, and West Virginia 405 V. CONCLUSION 408 I. INTRODUCTION

While running for President in 2020, Joe Biden campaigned on increasing the federal government's regulation of firearms. Among President Biden's proposed reforms were: federally banning "assault weapons" and "high-capacity magazines"; repealing the Protection of Lawful Commerce in Arms Act; limiting an individual's firearm purchases to one firearm per month; and ending the online sale of "firearms, ammunition, kits, and gun parts." (1) In response to President Biden's election and vows to pass more restrictive firearms legislation, many states enacted what this Article calls "Second Amendment sanctuary laws." (2) The scope of these laws varies, but their general aim is to prevent the enforcement of federal firearm laws inconsistent with the second Amendment. Following their enactment, the federal government has initiated litigation, arguing that these laws violate the supremacy clause of the United States Constitution. (3)

Recently, the United States sued the State of Missouri over its Second Amendment sanctuary law, known as the Missouri Second Amendment Preservation Act ("SAPA"). (4) In March 2023, the United States District Court for the Western District of Missouri struck down SAPA. (5) Among other things, the district court held that provisions of SAPA violated the intergovernmental immunity doctrine, (6) a judge-made doctrine rooted in the Supremacy Clause prohibiting states from regulating the federal government and "discriminat[ing] against the Federal Government or those with whom it deals[.]" (7) The intergovernmental immunity doctrine has been used to prevent states and local municipalities from: "imposing more onerous clean-up standards on a federal hazardous waste site than a non-federal project... banning only the U.S. military and its agents from recruiting minors, and... taxing the lessees of federal property while exempting from the tax lessees of state property." (8) Recently, intergovernmental immunity doctrine has been used, with mixed results, to invalidate state laws the federal government believes frustrate its immigration framework. (9)

Now, the federal government looks to employ arguments used in the immigration context to strike down state law it deems inconsistent with federal firearms law. This Article argues that Second Amendment sanctuary laws violate intergovernmental immunity doctrine where they seek to directly regulate the federal government's ability to enforce federal firearms law or discriminate against the federal government or those with whom it deals. (10) Second Amendment sanctuary laws that avoid these two pitfalls likely fall within the states' traditional police powers, and attempts to strike down such laws likely violate anticommandeering doctrine as expressed by the United States Supreme Court in New York v. United States, (11) Printz v. United States, (12) and Murphy v. NCAA. (2) Lawmakers interested in maximizing Second Amendment protections should consider laws that successfully avoid the pitfalls of regulating or discriminating against the federal government when drafting their own legislation. (14)

This Article proceeds in three parts. Part II gives a summary of the United States' system of dual sovereignty and relevant doctrines arising under the Supremacy Clause. Part III analyzes recent developments in intergovernmental immunity doctrine, including recent litigation in the immigration law context that involves arguments like those made in litigation surrounding certain Second Amendment sanctuary laws. Part IV analyzes Second Amendment sanctuary laws in Missouri, Wyoming, Alaska, Texas, Arizona, Montana, North Dakota, and West Virginia and explores how Second Amendment sanctuary laws could be tailored to avoid future intergovernmental immunity challenges.

2. LEGAL BACKGROUND

   1. The Federalist Scheme: The Supremacy Clause and the Tenth Amendment

      The doctrines of anticommandeering, federal preemption, and intergovernmental immunity all arise from the federalist scheme implicit in the United States Constitution. This scheme emerges from two key provisions within the federal constitution: (1) the Supremacy Clause and (2) the Tenth Amendment. (15)

      The Supremacy Clause states "[t]his constitution, and the Laws of the United States... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." (16) The Supremacy Clause has been used on countless occasions to invalidate state or local legislation that conflicts with federal legislation. (17) However, the Supreme Court of the United States in Armstrong v. Exceptional Child Care Center, Inc., concluded that the Supremacy Clause does not confer a private right of action. (18) Rather, the Supremacy Clause creates a rule of decision that "instructs courts what to do when state and federal law clash, but is silent regarding who may enforce federal laws in court, and in what circumstances they may do so." (19) While the Court's statement in Armstrong seems to forbid using the Supremacy Clause as a cause of action, its holding was limited to private rights of action and not suits "to enjoin the unconstitutional actions by state and federal officers." (20) The Court noted that those suits were "the creation of courts of equity, and reflect[] a long history of judicial review of illegal executive action, tracing back to England." (21) Additionally, the Court found that it had never held or suggested that these suits "rest[] upon an implied right of action contained in the Supremacy Clause." (22) Therefore, there is still some debate as to whether the United States can bring a suit to enjoin unconstitutional state laws, either under an implied right of action under the Supremacy Clause or a suit in equity to enjoin unconstitutional actions of state officers. (23)

      The second of the twin pillars of the United States' federal scheme--the Tenth Amendment--states that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." (24) The true meaning of the Tenth Amendment's seemingly uncomplicated demand--and the Supreme Court's application of the Amendment to disputes between the federal government and the states--is a hotly contested issue. (25) One well-known approach to interpreting the Tenth Amendment is that the Amendment was a reminder that Congress could legislate only if it has authority to do so under the federal constitution. (26) Under this approach, used by the Court in the nineteenth century and most of the twentieth century, federal laws were not invalidated under the Tenth Amendment. (27) More recently, however, the Court has interpreted the Tenth Amendment to "reserve[] a zone of activity to the states for their exclusive control" and invalidated federal laws intruding into the States' zone. (28)

   2. Federal Preemption

      The doctrine of federal preemption--rooted in the Supremacy Clause of the U.S. Constitution (29)--offers a mechanism for litigants to have state and local laws inconsistent with federal law declared void. (30) The basic operation of preemption can be summarized as follows. Congress enacts a law or regulation that broadens or narrows the rights of private actors. (31) Then, either an existing or newly passed state law broadens or narrows those same rights in a way that conflicts with the federal law. (32) After the enactment of the state law, a party with standing challenges the state law on several grounds, including that the law violates the doctrine of preemption. Finally, the conflict resolves with the federal law supplanting the state law or regulation. (33)

      The United States Supreme Court has identified three types of preemption used to supersede inconsistent state laws/regulations: (1) express preemption, (2) conflict preemption, and (3) field preemption. (34) All three types of preemption share the same basic goal: to remedy "a clash between a constitutional exercise of Congress's legislative power and conflicting state law." (35) However, the situations in which each type of preemption is used vary and therefore necessitate a more in-depth inspection.

      Express preemption is relatively straightforward. Federal law preempts state law when Congress "has explicitly stated in the statute's language or implicitly contained within its structure or purpose" a desire to preempt state law. (36) The Airline Deregulation Act of 1978, for instance, expressly preempted state law by providing that "no State or political subdivision thereof... shall enact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law relating to rates, routes, or services of any [covered] air carrier." (37) The Supreme Court held that the Act's preemption provision--even with the broad "relating to"...