Montana’s GOP-controlled lawmaker recently passed law banning state and local law enforcement agencies from contributing to the enforcement of federal gun restrictions. While many media reports portray this as an “annulment” case, it is actually quite similar to the protection laws of liberal states and local governments, and limits support to the enforcement of federal laws aimed at undocumented immigrants for deportation.
Both Montana immigration and gun laws are denying state and local assistance to federal officials seeking to enforce the laws and regulations in question. However, unlike genuine repeal efforts (as advocated in the 19th century by John C. Calhoun and others), they do not deny that these laws apply within the state, and do not prevent federal officials from enforcing the laws in question themselves.
It is important that the protective laws do not protect state and local officials from having to obey federal law themselves (e.g., they do not empower them to violate federal constitutional rights). They merely prevent them from enforcing certain federal laws against possible violations by private parties.
USA Today has a helpful summary of the Montana Act that refutes the misleading description of its own heading (which incorrectly describes the Montana Act as “repealing” federal law):
Governor Greg Gianforte signed a bill on Friday banning state and local law enforcement agencies in Montana from enforcing federal bans on firearms, ammunition and magazines.
Montana law would prohibit law enforcement officers and other government employees from enforcing, implementing, or spending government funds to maintain federal bans on certain types of firearms, ammunition, and magazines.
The protective laws do not make the federal law ineffective, but make enforcement more difficult. In many cases, the federal government simply lacks the resources and personnel to enforce its laws without substantial state and local support. There are far more state and local law enforcement officers than federal agencies.
Trump-era efforts to use ICE raids to compensate for immigration sanctuaries have had limited success. If the Biden administration tries to use federal ATF agents to balance Montana’s policies, it could well result in similar restrictions.
The Trump administration launched an extensive campaign to try to pressure liberal immigration areas to abandon their policies. Most of these efforts have been put down by the courts for violating constitutional prohibitions on federal “commanding” of federal and local government and the imposition of conditions on state recipients of federal funds without the approval of Congress. The Liberal Democrats were happy to use constitutional protections for federalism to protect protected cities and states from Trump, while many Republicans advocated broad theories of federal power to try to circumvent these limits.
Now that there’s a Democrat in the White House and it’s gun rights rather than immigration, the shoe is on the other foot. Many of those who defended liberal sanctuaries are likely to denounce Montana law, and vice versa. “Fair weather federalism” is a ubiquitous element of American politics, and in this case it is likely to reappear.
I am one of the relatively few people who sympathize with both liberal immigration sanctuaries and conservative gun rifle sanctuaries. In my opinion, both of these contradict federal laws, which are counterproductive at best and deeply harmful and unjust at worst.
But apart from the merits of specific policies, it is of great value to have a federal system that leaves room for protected areas of different ideological stripes. I outline a few reasons for this here:
[T]There is a lot of inconsistency and “selective morality” in the discourse about protected cities. People who sympathize with the causes of the left sanctuary tend to condemn the right and vice versa, even in cases where the legal and moral issues are remarkably similar. Such an ideological – and often purely partisan – tendency is part of the broader phenomenon of “fair weather federalism,” in which both Republicans and Democrats all too often condemn or praise restrictions on federal power that depend primarily on whose ox is eaten.
I would prefer a broader and more principled commitment to limiting federal power, both left and right. But I’m afraid we may not get it anytime soon.
In the meantime, even hypocritical protected area movements can still provide valuable foot-vote options and protect people from excessive federal government policies. Immigration sanctuaries can still provide valuable refuge for undocumented immigrants, their families, and those who wish to engage in various economic and social transactions with them. Gun sanctuaries can do the same for those who value the right to bear arms. And they can serve this purpose, even if the politicians who take such measures do so primarily for ideological or partisan reasons and not out of a fundamental obligation to limit federal power.