Fears of unlikely federal gun-control measures lead to raft of state laws
By Bob Ortega, CNN Investigates
Brandon Steele, a second-term Republican in West Virginia’s House, worked hard this year to get his colleagues to pass his “Second Amendment Preservation Act.” It seeks to bar state or local police from enforcing new federal gun restrictions the Biden administration might adopt.
Mind you, Steele himself concedes he doesn’t see significant new federal restrictions getting passed anytime soon.
“The Biden administration has not gotten anywhere in terms of pushing their firearms regulatory agenda; they haven’t even got their ATF guy in there,” he told CNN. “There are a lot of forces in play to keep that from happening.”
With a 50-50 US Senate, a paper-thin margin in the House, and Biden focused on other priorities, advocates on both sides acknowledge that sweeping measures to address gun violence appear unlikely.
But that hasn’t stopped gun-rights groups and politicians across the country from ginning up fears that Biden wants to, as Texas Republican Sen. Ted Cruz put it, “erase the Second Amendment,” and come to people’s homes and take away their guns.
GOP lawmakers in at least 17 states have introduced bills this year taking aim at possible federal gun restrictions, a CNN review has found. Nine of those states signed new laws that take a page from the immigration sanctuary movement (which limited state and local police from helping with federal immigration enforcement), by barring local and state police agencies from helping enforce any new federal gun laws. And two states, Missouri and Arizona, enacted measures that conflict with existing federal gun laws in ways that prosecutors tell CNN already are making it harder, or risk making it harder, to investigate gun crimes.
The inflammatory rhetoric surrounding these new laws, critics says, is similar and even connected to claims of 2020 election fraud and pushback against Covid-19 vaccine or mask mandates in that they rely on a denial of reality.
“They are part of an ideological system, [and believe] that the other side — in this case, the Democrats — are devious and intent on taking political rights away and imposing a socialistic tyranny,” said Alexandra Filindra, a political science professor at University of Illinois, Chicago, who studies gun politics, disinformation and social media.
“Information that conflicts with this narrative is dismissed,” she said. “Saying Biden is a Democrat and coming for your guns is a great way to motivate anger and get people to vote in the midterm, especially.”
Missouri “suspends participation”
While most of the new gun laws are aimed at some perceived future threat to gun ownership, the ones in Missouri and Arizona, at a minimum, have the potential to undermine present-day law enforcement investigations.
Soon after Missouri adopted its “Second Amendment Preservation Act” in June, at least a dozen federally deputized state and local law enforcement officers withdrew from joint task forces where they’d worked with the Bureau of Alcohol, Tobacco, Firearms and Explosives to investigate violent gun crimes and illegal gun trafficking, according to Frederic Winston, the head of ATF’s Kansas City field office.
Missouri State Highway Patrol Capt. John Hotz confirmed it “has suspended participation” in ATF’s joint task force. As a result, Winston said, the patrol stopped submitting firearms-trace requests to ATF, and stopped assisting in referrals to the FBI’s National Instant Criminal Background Check System, for investigations of people who get a firearm from a licensed dealer despite being prohibited from doing so.
Missouri’s act seeks to nullify any federal gun laws that tax guns, ammunition or accessories; that register or track firearms or firearms ownership; or that would confiscate or forbid the ownership, use, or transfer of guns by “law-abiding citizens.” It says no state or local officers or officials “can have authority to enforce or attempt to enforce” such laws.
State lawmakers also adopted an approach used in Texas’ controversial abortion legislation by letting residents sue, for up to $50,000, local or state police who enforce federal gun laws that fall afoul of the act.
Frederic Winston, the head of the ATF’s Kansas City field office, said in a court declaration that the act “deprives law enforcement of information needed to successfully investigate crimes, including violent crimes.”
The city of St. Louis filed a lawsuit seeking to block the law shortly after it was passed. The Department of Justice supported that effort, arguing that under the US “Constitution’s Supremacy Clause, the State of Missouri has no power to nullify federal laws.”
Like Missouri’s law, Arizona’s “Second Amendment Sanctuary” act, signed into law by Gov. Doug Ducey in May, applies to current federal firearms laws. It orders state and local police agencies not to enforce or cooperate with any federal measures that are “inconsistent with any law of this state regarding the regulation of firearms.” That bar on enforcement is modeled on California’s 2017 immigration sanctuary law, state Rep. Leo Biasiucci, its author, told The Washington Monthly. Biasiucci didn’t respond to repeated interview requests from CNN.
States can’t simply claim to nullify federal firearms laws that go farther than state laws, said Jonathan Lowy, chief legal counsel of the Brady Campaign to Prevent Gun Violence. If they think a law is unconstitutional, they can challenge it in court, he said. “That’s the way you do it: You challenge laws. You don’t say, ‘I’m not going to follow federal law.'”
Unlike in Missouri, federal and state law enforcement officials in Arizona say they haven’t seen changes in joint task forces or other collaborations to investigate illegal gun trafficking or violent gun crimes.
Arizona’s gun law did swiftly draw a backlash from the Tucson City Council, which in June adopted a resolution to continue enforcing federal gun laws.
Tucson, where several churches were early leaders in the 1980s immigration sanctuary movement, and where the 2011 shooting of Congresswoman Gabby Giffords and 18 other people in a grocery-store parking lot remains etched into memory, has often clashed with the state’s GOP-dominated leadership.
“We fully intend to enforce federal gun laws in Arizona,” said Tucson City Council Member Steve Kozachik. “I believe their nullification amendment is highly unconstitutional, and it’s not anywhere close to being in the best interests of our constituents to say we’re going to opt out of federal gun laws.”
Immigration sanctuary model
Legal experts across the spectrum say that while provisions in Missouri and Arizona’s laws appear to go too far, other recent acts, such as West Virginia’s “Second Amendment Preservation and Anti-Federal Commandeering Act,” are likely to survive legal challenges. Those measures rely on what’s known as the “anti-commandeering” doctrine, which holds that the federal government can’t make state or local authorities enforce federal regulations on its behalf.
That doctrine has repeatedly been upheld in recent cases involving immigration-sanctuary laws adopted by dozens of cities, from Seattle and San Francisco to Jackson, Mississippi.
“It’s perfectly constitutional for state officials to opt not to cooperate with federal immigration enforcement or federal gun enforcement,” said Eric Ruben, an assistant professor of law at Southern Methodist University and a fellow at the Brennan Center for Justice, a progressive policy think tank.
Some state GOP lawmakers who, under President Donald Trump, passed laws to preempt cities from declaring themselves immigration sanctuaries, initially shied at embracing a sanctuary approach for guns.
“I actually had some members balk at the concept of using the word sanctuary,” said state Rep. Scotty Campbell, of Mountain City, Tennessee, about his gun-protection bill. “I argued it was known and understood as a Second Amendment Sanctuary. They didn’t want to use the word sanctuary.”
The new laws seeking to stave off gun restrictions echo gun-advocacy efforts under President Barack Obama that led to seven states adopting similar measures between 2010 and 2016.
Even modest efforts to address gun safety often are painted by opponents as apocalyptic threats. Groups such as Gun Owners of America characterized Biden’s recent call to restrict stabilizing gun braces, for example, as “disarming the American people.”
Last fall, the Trump campaign ran ads in key battleground states that clipped comments Biden made during a CNN interview, taking them out of context to falsely make it sound as though he planned to take away voters’ guns. Cruz shared a similar false video on social media on the eve of Biden’s first joint address to Congress, and claimed that Biden wants to “erase the Second Amendment.”
In September, Fox News explicitly tied guns and Covid-19 together with a piece titled: “Second Amendment groups on Biden mandate: If he can force a needle in your arm, can he take your gun?”
In interviews with CNN, lawmakers in several states cited such fears as justification for their gun-rights bills.
“We didn’t know how far they’d go to restrict private gun ownership,” said Arkansas state Rep. Brandt Smith, for example. “Confiscation of guns? Restrictions of the purchase of firearms? We wanted to be proactive and prevent that.”
Americans own more guns than ever, and more guns per capita than any other country in the world.
Researchers for the Switzerland-based Small Arms Survey estimated that Americans, with 4.3% of the world’s population, owned 393 million guns, or 46% of all guns owned by private citizens worldwide, in 2018, the most recent year the survey was conducted. And Americans have bought an estimated 36.9 million more firearms in the past two years, according to Small Arms Analytics, a consulting firm based in South Carolina. Since the US has no national gun registry, gun ownership and sales are estimated by surveys, firearms industry publications, and background checks.
These GOP-led efforts to guard against future gun restrictions come at a time when some gun-control measures enjoy broad support. More than 80 percent of people in the US (including 70 percent of Republicans) said they support expanded background checks for guns, in an April 2021 survey by the Pew Research Center. The survey said about half of Americans see gun violence as a major problem in the US — understandable, given that, according to the Gun Violence Archive, 37,820 people have been shot to death in the US this year through Nov. 4, including 20,328 suicides.
But it’s the fear of losing guns that animates the call to bar such measures. State Sen. Joey Hensley, who cosponsored a Second Amendment sanctuary bill in Tennessee, said his constituents “were very concerned about the federal government making more restrictions” on guns.
“I’m personally not afraid so much of the federal government. I think we have plenty of protections under the Second Amendment and I think the Supreme Court would protect our rights,” said Hensley. “But we wanted to get some legislation on the books, so people knew where we stood.”
Filindra, the political scientist, said that the gun-rights narrative has been shifting, from a focus on using guns for self or home protection, to “the idea that citizens have a right to arms as a check on government, and that without that, the franchise is insecure … if the voting box is insufficient to guarantee our rights, we have the ammo box.” In this narrative, she said, “threats to gun rights are existential threats to democracy.”
Whether or not Congress actually can pass a substantial gun-control measure is beside the point, said Sarah Byner, research director for Open Secrets, a nonpartisan group that tracks money in politics and its effect on public policies and elections.
“That’s something about the political climate we’re in. Even if it’s out of the realm of anything being discussed in the Congress, people aren’t following Congress; people aren’t police experts. They respond to the messages and that’s what these groups are putting out into the world, facts be damned,” she said.
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