When Imitation Is Merely Sardonic and Dangerous

Sanctuary jurisdictions for immigrants became a target of this administration’s anti-immigrant activities and exaggerated as havens for criminals and criminal activities. The fact is that the term sanctuary reflects a very old and honorable tradition of protection or haven for persecuted individuals, especially in religious facilities. In current times, the term has been applied to specially designated environmental areas for marine, mammal, and plant species.

Over the past few years, sanctuary has been corrupted to serve a political agenda that paints immigrants in threatening and dangerous guises. However, this distortion has not prevented the zealous advocates for firearms from converting the term to a jurisdiction with a declaration as a “second amendment sanctuary.” This sardonic assertion creates a moral equivalency and serves to counter the designation of gun-free zones, another obstacle to unfettered firearm possession that stings advocates.

Virginia, to date based on VoxFairfax’s count, has now witnessed nine counties declaring, by resolution, their existence as “second amendment sanctuary” jurisdictions. VoxFairfax previously reported on the first Commonwealth county to declare itself a gun sanctuary (https://wp.me/p9wDCF-xQ; Take, Er, Don’t Take Your Guns to Town, Son; 6/24/2019). We also commented upon an allied development involving determinations by elected sheriffs to decline to enforce firearms-control laws with which they do not agree (https://wp.me/p9wDCF-qO; Nullification by Sheriff; 3/17/2019). Observers attribute the emergence of both phenomena as a political reaction to electoral changes, particularly by Democrats in state and local leadership. This dynamic has been amplified by the emergence of  gun control lobbies at the same time that the NRA has been experiencing serious internal disruption and external questioning of its political activities..

Carroll County declared itself a second amendment sanctuary in April 2019; now Appomattox, Campbell, Charlotte, Dinwiddie, Giles, Lee, Patrick, and Pittsylvania counties have followed suit, with several additional counties threatening to join the movement shortly. The declarations take the form of resolutions adopted by boards of supervisors, often as components of larger local statements of policies on behalf of county residents. The expressions of policy include “free market state” principles, support for right-to-work laws, and opposition to abortion, among others. In turn, these resolutions are then communicated to several statewide associations for consideration and communication to the General Assembly.

Although the Democratic candidate in 2016 carried the Commonwealth’s popular vote by 49% to 45%, the majority of counties adopting second amendment resolutions voted for the Republican by margins of over 70%.  Most observers attribute the upsurge to the fact of the Democratic majority success in taking control of both houses of the General Assembly and Governor Northam’s public posture in seeking firearm legislation.

While a county’s declaration by resolution that it is a second amendment sanctuary may have no legal force, it is often undertaken without consideration of possible consequences, both actual and probable. Where a county makes such a declaration, what is the responsibility of the county sheriff to enforce state legislation deemed to be in conflict with that local resolution?

While a county’s declaration by resolution that it is a second amendment sanctuary may have no legal force, it is often undertaken without consideration of possible consequences, both actual and probable. Where a county makes such a declaration, what is the responsibility of the county sheriff to enforce state legislation deemed to be in conflict with that local resolution? While such declarations are clearly those of the county, what are the lines of responsibility where a sheriff also decides to decline enforcement of duly adopted state laws? It does not require fiction to imagine the resulting legal mess where an abused spouse is shot or killed in a situation where a “red flag” law is alleged.

The Patrick County Sheriff issued a statement reflecting the potential conflict between state law and law enforcement. While the sheriff stopped short of espousing nullification, his position reflected at least resistance to the rule of law with respect to an elected official. “Overnight criminalization of someone who possesses a certain type of gun or ammunition magazine is an infringement [of Second Amendment rights]. The issuance of a gun confiscation warrant based on hearsay without proper due process is an infringement. In addition, the confiscation proposal places law enforcement, particularly sheriffs’ deputies, in grave danger because we are the ones that are most often commanded to carry out these protective orders.”

A meeting of the board of supervisors in Amelia County took place recently, where a resolution was discussed; it was attended by the county sheriff. If ordered by a judge to seize guns under a law he believed unconstitutional, he said, he would refuse to comply.  “That’s what I hang my hat on,” he replied. “My oath of office is to uphold the Constitution of the United States.” The language in some of the resolutions creates the potential conflict for law enforcement and state authority directing “law enforcement and judiciary” not to enforce any unconstitutional law. Encouraging such a choice mechanism will, sooner or later, result in a failure to prevent a deadly act or suicide involving a gun.

It is both curious and questionable for an elected official, particularly one of law enforcement, to render a legal opinion concerning a law that has not yet been adopted.  The statement also presumes that a gun confiscation warrant will be issued without judicial authority. Do not sheriffs seize property only upon the order of a judge? And what of the grave danger posed to the family or spouse of someone deemed a danger and in possession of a weapon? All are disturbed when law enforcement officers are injured in the line of duty; on the other hand, that is one of the risks of the profession. The sheriff’s speculation about the workings and criteria of the as-yet-unknown statute as well as his prospective legal interpretation of “hearsay” and “due process” are alarming insofar as they fuel the paranoia of gun activists.

One local Virginia newspaper recorded the opinion of a resident to the effect that, in his belief, a second amendment sanctuary would relieve sheriffs and police from liability if they refuse to enforce state-adopted gun laws. It does not require a law degree to pierce the fallacy of that view, as the primacy of state law clearly prevails. In the absence of a sanctuary declaration,  where does liability and responsibility lie for a sheriff who declines to enforce state law? How does such conduct comport with the rule of law? This question of conflict applies equally to a county’s declaration.

One local news report factually declared that the Supreme Court decision in Heller (https://www.supremecourt.gov/opinions/07pdf/07-290.pdf, 2007) stood for the proposition that the second amendment did not apply to state militias and that the right to bear arms was uninhibited. This is untrue. Sadly, any reading of the decision, written by the late Justice Antonin Scalia, clearly acknowledges the authority of legislative limitations on possession and use of firearms. This absolutist interpretation has been aggressively promoted by the NRA. It has not been enough for zealous gun advocates that firearm manufacturers were immunized from liability by an act of Congress in 2005. Recently, in Connecticut, attorneys for Sandy Hook parents pierced that immunity defense employing state laws.

Deeply held ideological and popular opinion coupled with uninformed news reporting creates an environment that may lead to serious, even lethal consequences, as well as an erosion of the rule of law. Peaceful resolutions by counties, that are combined with nullification of state laws by sheriffs, constitute, however misinformed, a far more serious situation. Second amendment advocates for sanctuary declarations are adopting a sardonic moral equivalence to guile followers into supporting second amendment sanctuaries. However, it appears that their zeal applies only to the term “sanctuary” itself and is not at all flattery in substance. In that comparison, there is no flattery to justify the similar use of the term sanctuary.

Feeble and transparent attempts to rationalize public policy such as second amendment sanctuaries is the type of deception that only damages public trust in the leaders who proffer such ideas. “Feel good” political ploys may draw some popular attention but, as always happens, cause disappointment or pain in the longer run. Perhaps if the tourism business suffers from the publicity surrounding the initial ballyhoo by advocates, common sense prevails. It’s difficult to imagine real estate brokers advertising gun sanctuary counties as friendly places in which to reside.

 



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