The Applicability of Intergovernmental Immunity Doctrine to Second Amendment Sanctuary Laws

To what extent can states enact legislation that frustrates federal regulation of firearms—in an effort to maximize protections of the Second Amendment and related state constitutional provisions—without running afoul of the Supremacy Clause? The answer to that question lies within the intergovernmental immunity doctrine, a virtually obscure legal doctrine with origins in the Supremacy Clause and Chief Justice John Marshall’s famous opinion in McCulloch v. Maryland. For many years, the United States Supreme Court was reluctant to clarify the contours of intergovernmental immunity. This did not stop the federal government from asserting the doctrine in various actions to strike down state laws frustrating federal schemes—most notably to challenge California laws frustrating the federal government’s immigration framework. The federal government’s assertion of the doctrine achieved mixed results, with both district courts and the circuit courts applying the doctrine in a haphazard manner. However, the United States Supreme Court’s recent clarification of intergovernmental immunity in United States v. Washington breathed new life into the doctrine and cemented its importance in future disputes between the federal government and the states. In response to President Biden’s election and vow to increase federal regulation of firearms, many state legislatures passed what this Article calls Second Amendment sanctuary laws. The general purpose of these laws is to resist increasing federal regulation of firearms. Recently, the federal government has brought declaratory judgment actions seeking to declare some Second Amendment sanctuary laws unconstitutional, asserting intergovernmental immunity as a basis for declaring these state laws invalid. This Article recounts the history of intergovernmental immunity (and its doctrinal brethren), argues why the doctrine is important to Second Amendment sanctuary litigation, and applies it to various Second Amendment sanctuary laws in order to provide an applicable framework for future practitioners, legislators, and courts tackling intergovernmental immunity issues