By: Michael Campbell | Twitter: @itsthesoup
Posted: January 12, 2020 | 1:45 p.m.
Dinwiddie declared itself a Second Amendment sanctuary in November 2019
VIRGINIA – As the number of communities that have declared themselves Second Amendment sanctuary localities reaches the triple digits, Attorney General Mark Herring released a formal opinion on the resolutions being adopted across the Commonwealth, saying they “have no legal effect.”
Just before Christmas, Herring released a four-page advisory opinion following a request from Delegate Jerrauld Jones for clarity on the legal standing of Second Amendment sanctuaries in the state after over 100 cities, counties, and towns have stated they intend to stand against any laws that unconstitutionally object the rights of their populations to be able to bear firearms as gun violence prevention measures are expected to headline this year’s session of the General Assembly, which starts this week.
Since last November’s election, where Democrats attained full control of the state legislature for the first time in over two decades, the Virginia Citizens Defense League has led a grassroots effort to encourage gun owners to contact their local government representatives, urging them to stand as Second Amendment sanctuaries. Over the last two months, Prince George, Sussex, and Dinwiddie have declared themselves as such, with other communities, such as Surry County, opting to stop short of passing a resolution saying they would legally challenge and oppose any laws that would unconstitutionally restrict the rights of gun owners. Instead, Surry’s resolution urged state leaders “to take no action which would violate the freedoms guaranteed in both” the state and U.S. Constitution.
In his letter, Herring noted efforts being undertaken by Governor Ralph Northam to address gun violence in the state in the face of sobering statistics from the state medical examiner’s office that shows over 10,000 Virginians have killed by a gun since 2007, along with Virginians being victims in a number of mass shootings, including last May’s deadly shooting in Virginia Beach.
“Gun violence prevention has been the subject of a vigorous public debate for many years,” he said. “This debate included a special session of the General Assembly that the Governor convened in July 2019 but was adjourned without action. Issues related to gun safety were also a central issue in Virginia’s recent legislative elections. Following those elections, the Governor has promised to work with legislative leaders to enact certain gun safety measures – such as universal background checks – once the General Assembly convenes in January 2020.”
As over 100 individual communities pass resolutions stating their opposition to laws they deem to be unconstitutional and encroaching on the rights of gun owners as provided by the Second Amendment, some leaders locally at the time of their community’s adoption of the resolution and Herring in his opinion noted Virginia’s operation as a Dillon Rule state, meaning communities can only pass ordinances and act on matters the state has given a local government the authority to do so.
“The Dillon Rule is one of strict construction: ‘If there is a reasonable doubt whether legislative power exists, the doubt must be resolved against the local governing body,’” Herring said. “‘Thus, when a Virginia locality seeks to take any action, the Dillion Rule applies “to determine in the first instance, from express words or by implication, whether a power exists at all.’ If a locality cannot identify a reasonably specific source of delegated authority, ‘the inquiry is at an end’ and the act in question is unauthorized.”
In Dinwiddie, at the time of 2A sanctuary passage, longtime supervisor Harrison Moody echoed Herring’s findings.
“Some laws we can pass that they have given us the authority to but, as far as guns go, we don’t have any authority to pass new legislation unless the state tells us we can,” he explained during November’s board of supervisors meeting. “We have a right to make a stand about how we feel about the Second Amendment and we did that tonight.”
According to Herring’s findings, the resolutions “neither have the force of law nor authorize localities or local constitutional officers to refuse to follow or decline to enforce gun violence prevention measures enacted by the General Assembly.”
“In any event, all localities, local constitutional officers, and other local officials are obligated to follow duly enacted state laws,” the attorney general said. “… both the Virginia Constitution and the Code of Virginia specifically establish the supremacy of laws passed by the General Assembly over local ordinances and policies, and “it is well settled that when a statute or an ordinance conflict, the statute must prevail.”
Herring continued, “Nor have any localities been delegated any authority – either expressed or implied – to exempt themselves (or anyone else) from gun violence prevention statutes,” adding local governments or constitutional officers lack the authority to declare state laws unconstitutional or “decline to follow them on that basis.”
“‘All actions of the General Assembly are presumed to be constitutional,’” Herring remarked. “Furthermore, it has long ‘been the indisputable and clear function of the courts, federal, and state, to pass upon the constitutionality of legislative acts.’ It follows from these well-established principles that all localities and local constitutional officers are required to comply with all laws enacted by the General Assembly unless and until those laws are repealed by the legislature or invalidated by the judiciary.”
The attorney general would conclude that the wave of 2A sanctuary resolutions being passed across Virginia “have no legal effect,” going on to say that “localities and local constitutional officers cannot nullify state laws and must comply with gun violence prevention measures the General Assembly may enact.”
For the VCDL, the leading organization pushing localities to pass resolutions to protect the rights of gun owners in their communities, they understand their opposition efforts will likely go beyond the current General Assembly session, as an update to their website details.
“Just because a locality is a sanctuary doesn’t mean you can’t be arrested,” the organization said in a section on their website regarding 2A sanctuaries. “We must stop the gun-control bills from ever becoming law. This fight will take at least two years, so stay engaged,” urging those concerned to attend their planned lobby day on January 20.
According to their website, as of last week, nearly 120 cities, counties, and towns have adopted some form of 2A sanctuary resolution. While the vast majority of jurisdictions have passed resolutions, some have not, based on the VCDL’s data. Neighboring Chesterfield have yet to take action on the measure following discussions in December, while efforts failed in Loudoun and Lynchburg.
In total, VCDL lists 17 localities as being “on the way” to passing similar 2A resolutions.
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