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Exploring Sen. Murphy’s Claim About ‘Second Amendment Sanctuaries’

FactCheck.org logo FactCheck.org 12/6/2022 D'Angelo Gore
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By some counts, about 2,000 of the more than 3,100 counties in the U.S. are so-called “Second Amendment sanctuaries,” which generally means that the counties – or the state of which they are a part — oppose gun laws they deem unconstitutional. In some cases, county or state politicians have enacted laws or resolutions that direct local law enforcement not to use their resources to enforce certain state or federal gun laws.

But that does not necessarily mean “60% of counties in this country are refusing to implement the nation’s gun laws,” as Democratic Sen. Chris Murphy of Connecticut claimed in a Nov. 27 CNN interview.

We found some examples of sanctuary counties that still enforce gun laws, including a Colorado county that Murphy mentioned in the interview.

Also, legal experts have said that many of the declarations by states and counties are largely symbolic – meant to merely proclaim support for the protection of Second Amendment rights. As for counties, most are legally required to follow the gun laws of their state.

‘Second Amendment Sanctuaries’

Murphy and CNN’s Dana Bash started the interview by talking about President Joe Biden saying that he wants Congress to pass a new ban on the sale of “semiautomatic weapons” by the end of the year. They transitioned to discussing recent mass shootings in Virginia and Colorado, states that Bash said already have other gun laws that did not prevent those killings. 

Murphy said part of the problem is when counties decide not to enforce existing laws. He said Congress needs to consider whether to withhold funding from those jurisdictions.

“The majority of counties in this country have declared that they are not going to enforce state and federal gun laws,” Murphy said. “They have decided that they are going to essentially refuse to implement laws that are on the books. That is a growing problem in this country.”

He continued: “I think we have to have a conversation about whether we can continue to fund law enforcement in states where they are refusing to implement these gun laws. I will talk to my colleagues about what our approach should be to this problem, but 60% of counties in this country are refusing to implement the nation’s gun laws. We have got to do something about that.”

A customer browses guns for sale at RTD Arms & Sport in Goffstown, New Hampshire on June 2, 2022. Photo by Ed Jones/AFP via Getty Images. © Provided by FactCheck.org A customer browses guns for sale at RTD Arms & Sport in Goffstown, New Hampshire on June 2, 2022. Photo by Ed Jones/AFP via Getty Images.

To support the claim, a congressional aide for Murphy sent us hyperlinks to stories from the Associated Press and tacticalgear.com – both of which said that about 2,000 counties, or roughly 63% of the U.S. total, have been declared sanctuaries for the Second Amendment.

Definitions for “Second Amendment sanctuaries” vary from place to place, but, generally, the term refers to jurisdictions that oppose laws they believe infringe on the gun rights of Americans. The sanctuary moniker was modeled after other so-called sanctuary jurisdictions that limit how much state and local law enforcement cooperate with the execution of federal immigration laws.

But when a location is designated a sanctuary for gun rights, that does not necessarily mean that gun laws are not being enforced in those areas – as Murphy said.

For example, in the interview, Murphy made a reference to El Paso County in Colorado, where a gunman killed five people and wounded many others at an LGBTQ nightclub on Nov. 19. That county is one of more than 30 in the state that have declared themselves a sanctuary for the Second Amendment. 

News reports said that local law enforcement in El Paso County potentially could have requested an extreme risk protection order, which, if granted by a court, would have allowed local police to temporarily confiscate the gun of the suspected shooter – who previously had been arrested in 2021 for allegedly making a bomb threat against his mother. 

ERPOs, also known as red-flag orders, aim to keep weapons away from individuals who may be a threat to themselves or others.

Colorado is one of 19 states and the District of Columbia that have red-flag laws in place, according to the Giffords Law Center to Prevent Gun Violence, which advocates gun control laws. Five states – not including Colorado – permit only law enforcement to petition a court for an order.

It’s true that when Colorado’s red-flag law was being debated by the state Legislature, El Paso County Sheriff Bill Elder, who opposed the legislation, made it clear that his office would not go out of its way to request protection orders.

“We’re not going to pursue these on our own, meaning the sheriff’s office isn’t going to run over and try to get a court order,” Elder said in a 2019 interview. 

The website of the El Paso County Sheriff’s Office further explains that an employee of the office will not ask for an ERPO “unless exigent circumstances exist, and probable cause can be established … that a crime is being or has been committed.”

However, Elder explained that the sheriff’s office will enforce a court order issued at the request of a family member, which also is allowed in Colorado.

“The fact of the matter is, we support the rule of law. And if a judge issues an order of the court, then it is up to law enforcement to execute that order,” Elder said.

The AP story from early September said that 37 sanctuary counties in Colorado issued a total of 45 ERPOs, or orders for firearms to be surrendered, in 2020 and 2021 — “a fifth fewer than non-sanctuary counties did per resident.” 

In El Paso County, courts approved eight out of 39 petitions in that time period, according to a May story from Denver’s 9News. In nearby Douglas County, another sanctuary county, 11 of 17 petitions were granted, the local NBC News affiliate said.

Douglas County Sheriff Tony Spurlock, a Republican, told Kaiser Health News in June that his office filed four of the protection orders.

So some sanctuaries are still enforcing gun laws — although perhaps not as aggressively as non-sanctuaries.

‘Symbolic’ Measures

In an interview with FactCheck.org, Sheila Simon, an assistant professor at Southern Illinois University School of Law and a former Democratic lieutenant governor of Illinois, said that in many cases sanctuary ordinances and resolutions are mostly a “communicative device.”

“There is a lot of activity where the local government takes a position on some state or federal law and says, ‘We oppose this. We want our representatives not to vote in favor of this,'” she said. “And the sanctuary ordinances are like a step further. They are like, ‘We really want you to know that we really don’t like these laws.'” 

But Simon told us that even officials in what is recognized as the nation’s first Second Amendment sanctuary “understood that this is more of a statement than a change in law or law enforcement.”

That county, Illinois’ Effingham County, passed its resolution in 2018, saying, in part, that it “will prohibit its employees from enforcing the unconstitutional actions of the state government.” 

Yet the county’s former state’s attorney, Bryan Kibler, whom Simon said proposed the wording himself, acknowledged at the time that the ordinance was largely symbolic and would not dictate how the sheriff’s office enforced gun laws, according to the Effingham Daily News.

As another example, according to an article published on tacticalgear.com, all of Nebraska’s counties are considered sanctuaries because, in 2021, Republican Gov. Pete Ricketts signed a proclamation designating the entire state a “Second Amendment Sanctuary State.”

“The White House and U.S. Congress have announced their intention to pursue measures that would infringe on the right to keep and bear arms,” the proclamation says, adding that, “Nebraska will stand up against federal overreach and attempts to regulate gun ownership and use.” 

But a statement from Ricketts’ office said the proclamation was a “symbolic” effort reaffirming the state’s “support for the right to bear arms.”

Fifty-four of Nebraska’s 93 counties have separately declared themselves to be sanctuaries, according to the list on tacticalgear.com.

Legal Arguments

In addition, Simon and other law experts have said that most counties are legally required to follow state gun laws.

“Whenever there is a conflict between a local ordinance and a state law, the state law wins,” Simon said. “This is just the nature of how state and local government works.”

However, Darrell Miller, a Duke law professor and co-director of its Center for Firearms Law, told us that whether there are consequences for not implementing state law depends on a number of factors.

“Ordinarily, state and local law enforcement are obliged to enforce state law,” he wrote in an email. “The consequences of a county official, for example, refusing to enforce state law depends very much on the politics of the state, the willingness of state officials to remove or otherwise sanction local officials who defy state officials, and the legal mechanisms available for state officials to compel local enforcement.”

On the other hand, Miller said that the 10th Amendment to the U.S. Constitution prevents the federal government from commandeering state law enforcement to enforce federal laws.

But he said that if a local sheriff instructed a deputy not to follow a federal gun regulation, federal law enforcement could still enforce the law in that jurisdiction, and local law enforcement would not be able to stop them.

In an email to FactCheck.org, Murphy’s office said that “so-called ‘Second Amendment Sanctuary’ counties are counties that have declared they will not enforce or allow enforcement of state and federal gun safety legislation.” 

Some have – but not every one of them has gone that far. 

Ultimately, we cannot say how many of the nearly 2,000 sanctuary counties enforce state or federal gun laws. But at least some of them do, which contradicts Murphy’s statement that “60% of counties … are refusing to implement the nation’s gun laws.”

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