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Documents Reveal Many Virginia Lawless Counties Admit Their ‘Second Amendment Sanctuaries’ Are Legally Meaningless; They Are Also Rooted In Discredited Legal Theories

By Everytown Law

The below is excerpted from an Everytown Law memorandum, which is available in full here.

The last few months in Virginia have seen many local governments pass resolutions declaring themselves “Second Amendment Sanctuaries.” A close reading of the text of dozens of these resolutions shows they generally have no actual legal effect — and typically are little more than symbolic political gestures. But by confusing Virginians who reside in these counties about their obligations to follow state law (and, conversely, the obligations of local law enforcement officers to enforce state law and protect the safety of all Virginians), these resolutions threaten public safety.

Advocates of these resolutions also invoke fringe legal theories that were relied upon by segregationists and defenders of slavery, including heavy reliance on one theory — “interposition” — that the courts have emphatically rejected as “illegal defiance of constitutional authority.” Far from providing any legal sanctuary, these resolutions are better described as “Lawless County Resolutions.” [1]

To learn more about the passage of these resolutions, Everytown for Gun Safety Support Fund issued Freedom of Information Act (“FOIA”) requests to select counties and cities in Virginia. Everytown also has reviewed the “analysis” supporting these resolutions recently put forward by the two gun lobby organizations that have been behind the efforts to pass these resolutions throughout Virginia, Gun Owners of America (“GOA”) and the Virginia Citizen Defense League (“VCDL”).

Everytown Law’s memo analyzing the FOIA results and the GOA/VCDL analysis is available here. Below is a selection of key findings:

I. Many Local Officials Acknowledge Resolutions are Legally Meaningless

Proponents of these resolutions have argued that “Second Amendment Resolutions Have Significant Legal Effect.” However, email traffic discovered in the course of Everytown’s FOIA reveals something else: local employees and their lawyers have privately acknowledged that resolutions adopted or considered in their jurisdictions are legally meaningless and have no effect.

For example, the County Administrator of Buckingham County, a jurisdiction in Virginia that passed such a resolution, wrote in an email: “you all can adopt a resolution to become a sanctuary county but that does not mean you can legally be one.” Likewise, a member of the Hanover County (Virginia) Board of Supervisors who voted for the resolution that passed in their county, candidly emailed this to a constituent:.

A county attorney for Fauquier County, Virginia, meanwhile, advised the Board of Supervisors that “the consensus is that an explicit declaration of being a ‘Second Amendment Sanctuary’ is problematic because it (1) has no real legal enforceable meaning….” She also counseled that the resolutions set up an expectation for residents that the County will challenge such laws in Court, but that she had a “hard time conceiving of a likely case where the County would have standing to try to invalidate any new state or federal law in this area….”

A local government attorney writing to a listserv of Virginia local government attorneys was even more blunt about the import of these resolutions, saying “[b]ottom line, I see such resolution as a political document sought by people for political purposes, and many elected officials will want to make a political statement of some sort.” This attorney went on to reference hearing “one official” comparing a so-called Second Amendment Sanctuary Resolution to little more than declaring “heart healthy month.” And in Tazewell County, the County Administrator wrote this to the Board of Supervisors (that ultimately passed a so-called sanctuary resolution):

Thus, while gun extremists have trumpeted the so-called sanctuary county resolutions, behind the scenes the very people involved in their consideration and adoption understood them as purely symbolic. Of course, towns, cities and counties may pass resolutions calling on state legislators to vote in favor of or oppose gun safety bills, but that does not alter the plainly evident fact that counties have no legal right or ability to defy duly enacted state laws.

II. Resolutions Dangerously Sow Confusion Among Law Enforcement and Gun Owners

While these resolutions are recognized by many to be legally meaningless, they are also dangerous and aim to sow confusion — as county officials have also recognized in internal emails. In one exchange produced via Everytown’s FOIA request, a law enforcement advisor for the Virginia Beach Sheriff’s Office said that VCDL, which has been leading efforts to pass these resolutions offered “a word of caution:”

Indeed, VCDL’s model sanctuary resolution seems to intentionally set up this very conflict, saying the county will use “the power to direct law enforcement and employees of [the County] to not enforce any unconstitutional law.”

The confusion also extends to citizens. After passage of such a resolution in Tazewell County Virginia, the County Administrator wrote in an email uncovered by Everytown that “we are getting calls from people who believe this resolution has swept away ALL gun laws in the County,” even a couple that “called because they were denied licenses to sell guns and now want to sell them.” The same County Administrator wrote in a subsequent email, when questioned if there was really need for clarification, that “maybe” the inquiries are from “felons, persons with mental disabilities, and wife beaters who are asking.” He also wrote “I am worried people are going to get arrested for selling guns without a license.”

It appears his concerns about the confusion such resolutions can cause were well-founded: Everytown’s FOIA to Tazewell County also turned up correspondence from a local pawn shop asking the County whether the county resolution changed its legal obligations as it pertained to firearms. These emails underscore the danger and confusion caused by Lawless County Resolutions.

III. Resolutions Are Rooted in Fringe and Discredited Legal Theories

The same Virginia Beach legal advisor quoted above wrote in another email uncovered by Everytown’s FOIA request that the closest historical parallel to this “Second Amendment Sanctuary” movement was “nullification.” Nullification is the rejected legal theory that some states invoked in the lead-up to the Civil War and later in attempting to prevent integration of schools and other measures aimed at dismantling the legacy of slavery and segregation. [2]

The GOA/VCDL memorandum also refers to the doctrine of “interposition” as justification for ignoring the rule of law. To be clear: like nullification, interposition is a doctrine with a dark history of being perverted to defend slavery, segregation, and the worst laws and practices of the Jim Crow era. The theory of interposition was invoked by John Calhoun to justify his disregard of the supremacy of federal law, and by state legislatures passing resolutions to block implementation of federal court orders to desegregate public schools. This doctrine has been squarely rejected by the U.S. Supreme Court, which adopted language from a federal district court nearly sixty years ago in stating that state interposition is “not a constitutional doctrine,” but rather “illegal defiance of constitutional authority.”

VCDL and GOA further attempt to bolster their arguments by citing to “the doctrine of the lesser magistrate.” That doctrine — which is a variation on the doctrines of nullification and interposition — has its roots in early Calvinism and Lutheranism. It has not been a part of mainstream theology (let alone political theory) for centuries. Which is, perhaps, why it has also not been cited by a single published decision in any American court (federal or state).

IV. Resolutions Misrepresent the Role of Local Government and Sheriffs

These lawless resolutions also fundamentally misunderstand and misrepresent the role of local government bodies, sheriffs, and courts in enforcing laws and determining if laws are constitutional. For example, Everytown’s FOIA turned up an email from an attorney for Fauquier County, Virginia — which passed a “Second Amendment Sanctuary” Resolution — acknowledging in a listserv of local government attorneys throughout Virginia that county boards cannot order Sheriffs “to not enforce a single type of law or how to carry out their duties.” Another Virginia attorney who advises local governments, including those that passed such resolutions, wrote in an email that “there’s also the issue that a Board of Supervisors can’t direct the Sheriff on how to carry out his duties. There are a lot of AG’s opinions and Supreme Court cases on that point.” Despite what the GOA/VCDL memorandum contends (at p. 5), the oath that local officials (and, in fact, all public officials) take to obey and uphold the state and federal constitutions does nothing to change the analysis. As courts to consider similar arguments have explained, “the oath of office ‘to obey the Constitution’ means to obey the Constitution, not as the officer decides, but as judicially determined.” In other words, a local official’s “oath of office requires [the official] to follow the law until a court decides it is unconstitutional.”

The Virginia Supreme Court has similarly and repeatedly explained — as Attorney General Herring emphasized in his December 20, 2019 legal opinion (“AGO”) (at p. 3) — that “[a]ll actions of the General Assembly are presumed to be constitutional.” That includes, of course, gun safety laws. And, despite what VCDL and GOA might wish, any disputes over the constitutionality of state laws are left to be resolved not by county, city, and other local officials, but by the state and federal judiciary.

Both the Virginia Supreme Court and the U.S. Supreme Court could not be clearer on this point: “[i]t is emphatically the province and duty of the judicial department to say what the law is.” As Attorney General Herring noted in his opinion, “it has long ‘been the indisputable and clear function of the courts, federal and state, to pass upon the constitutionality of legislative acts.’” This is not the role and function of local officials. They are instead “charged to enforce laws until and unless they are declared unconstitutional” by a court.

Efforts by local officials in other parts of the country to assert authority not to enforce other types of state laws because of their own personal interpretation of the state or federal constitutions have been consistently and repeatedly rejected by courts. That principle applies to gun laws just as it does to any other.

Finally, within all the noise created here by the local resolutions and the dangerous arguments espoused by VCDL and GOA, it must not be forgotten that the proposed gun safety laws at issue here, which are currently under consideration by the Virginia General Assembly, are plainly constitutional. For example, background checks, red flag laws, and assault weapon and large-capacity magazine prohibitions have been repeatedly found by courts throughout the country not to violate the Second Amendment or any other constitutional provision. This includes the federal appeals court with jurisdiction over Virginia, which upheld Maryland’s assault weapon and large-capacity magazine prohibition against a Second Amendment challenge.

Conclusion

While so-called Second Amendment Sanctuary Resolutions generally have no legal force or effect, they nonetheless threaten to undermine the rule of law all across the country and rely upon discredited legal doctrines with a history of ties to white supremacist ideology. Sheriffs, county boards, and other local politicians take an oath to uphold and enforce the law; they are not empowered — as the resolutions wrongly suggest — to decide for themselves which laws are constitutional and which are not. The documents revealed in Everytown’s FOIA also demonstrate that some of the organizers of such resolutions are selling their supporters a false bill of goods, as they well-know of the legal insignificance of such resolutions. Finally, the resolutions are dangerous: they misleadingly suggest some or all gun laws don’t apply or can’t or won’t be enforced in the jurisdiction; they are likely to have a chilling effect on people who otherwise might use a life-saving gun safety law to prevent a suicide, homicide, or mass shooting; and they also may result in more guns in the hands of people with criminal or other dangerous histories if new, strong gun safety laws go unenforced.

[1] The confusion in Tazewell County is perhaps not surprising as that County’s resolution (available here) goes well beyond most others that we’ve seen in Virginia (and elsewhere), purporting to prohibit any department or employee of the County from “participat[ing] in any way in the enforcement of any” number of new firearms laws that may be enacted, and further purporting to declare such laws “null, void, and of no effect in Tazewell County.” Such a formulation is a particularly dangerous, confusing and lawless assertion of non-existent county authority to nullify state law.

[2] See Cooper v. Aaron, 358 U.S. 1 (1958) (rejecting the legal theory of nullification advanced by Arkansas to ignore the Supreme Court’s opinion in Brown v. Board of Education).

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Everytown for Gun Safety is a movement of Americans working together to end gun violence and build safer communities.