Guns, Guns . . . the More You Carry, the Better You Feel

In 1997, Fairfax County adopted legislation barring the carrying of firearms into recreation centers and government buildings. However, the measure ran afoul of a 1987 state law prohibiting localities from adopting any ordinance governing “the purchase, possession, transfer, ownership, carrying or transporting firearms.” The county ban was stricken by a judge following a challenge by five county residents.

A similar attempt by Alexandria in 2002 to ban weapons from government buildings was instituted following a shooting outside a recreation center. That effort was met by more stringent legislation from the General Assembly, stripping localities of any authority to undertake action to restrict firearms.

Virginia law prohibits localities from restricting firearms in any way. It’s called a preemption law, and Virginia is one of 45 states with that kind of statute on the books.

While weapons are banned in state offices, courtrooms, and federal buildings, Virginia law prohibits localities from restricting firearms in any way. It’s called a preemption law, and Virginia is one of 45 states with that kind of statute on the books. On May 31, 2019, 12 people were killed by a city employee gunman in a Virginia Beach government building, causing renewed efforts to allow localities to enact control measures. That discussion was short lived, and recently a Virginia Beach resident began advocating to declare the area a second amendment sanctuary.

The NRA was quick to join the dialogue on the basis that allowing localities to regulate guns would defeat the purpose of the preemption law. The organization’s spokesperson said, “They didn’t want a patchwork of different laws in each jurisdiction and each locality. So if you were to cross over from Hanover County to Henrico County to the City of Richmond, that there weren’t three different sets of laws. A gun ban would not make people safer.” As proof, the spokesperson pointed to Virginia Beach’s workplace policy barring city employees from carrying guns at work. “We really believe and our members believe that you should have the right to defend yourself, carry a firearm unless you are in a secure facility.” Unfortunately,  that very logic also promotes the firearm carrier’s intent to harm others. Following the November 5 elections and the majority of the two General Assembly chambers passing to Democratic control, a number of Commonwealth counties have adopted resolutions declaring themselves second amendment sanctuaries.

Attorney General Mark Herring has been requested to issue an opinion on the lawfulness of these resolutions. In some cases, the resolutions have received the support of local sheriffs, one of whom announced he would not even enforce a court order in regard to seizure of a weapon. In other instances, counties have also invoked or sought the agreement of Commonwealth’s attorneys not to enforce state laws in this regard. In a radio interview on December 6, Herring said,

These resolutions have absolutely no legal effect whatsoever. What this is about is the gun lobby going around stoking fear, trying to scare people, when what Virginians want is to do something about the epidemic of gun violence. This is really about saving lives and reducing gun violence…. 

Herring added,

You’ve got groups like the [Virginia] Citizens Defense League … out stoking a lot of fear before one bill is even heard. I support addressing this epidemic of gun violence with laws like universal background checks; … and reinstating the one-handgun-a-month law that Gov. Wilder got passed, that served Virginia for two decades really well up until Republicans in the General Assembly repealed it.… What really should be the outrage is that in the last 10 years more than 9,000 Virginians have been killed using a gun … that’s the level of carnage and death that should really drive people to demand action, which it has done.

At its core, the contest second amendment advocates have constructed is one setting the duly elected representatives of the Commonwealth against a vocal minority. The net effect pits nullification of yet-to-be-adopted state laws against republican governance.  Elections have consequences. Anarchy and chaos challenge the rule of law and the orderly processes of civic society.

VoxFairfax searched some of Virginia’s statutes relevant to localities with respect to their authority to affect firearms. At least two statutes may receive attention in AG Herring’s formal review:

Sec. 15.2-1425 [Actions by localities] reads:

The governing body of every locality in the performance of its duties, obligations and functions may adopt, as appropriate, ordinances, resolutions and motions.

Sec. 15.2-915 [Control of firearms: applicability to authorities and local government agencies], in contrast, holds:

No locality shall adopt or enforce any ordinance, resolution or motion, as permitted by 15.2-1425 [above], and no agent of such locality shall take any administrative action, governing the purchase, possession, transfer, ownership, carrying, storage or transporting of firearms, ammunition, or components or combination thereof other than those expressly authorized by statute. For purposes of this section, a statute that does not refer to firearms, ammunition, or components or combination thereof, shall not be construed to provide express authorization. (Emphasis added.)

This latter statute appears on its face to preclude any locality from passing a resolution or motion declaring its jurisdiction to be a firearms sanctuary. Since the preclusion applies broadly [“no agent”], including sheriff and Commonwealth attorney, the expressions of local officials, their inclusion, or participation is likewise prohibited.  Logically, the effect of such county resolutions is moot since proposed new firearms restrictions by the General Assembly have not yet been written, debated, or considered.  While the resolutions will make some feel good, they will have no effect.

The legal conundrum that may be argued is that the resolutions are not gun control laws but statements of resistance to enforcement of gun control laws.

The legal conundrum that may be argued is that the resolutions are not gun control laws but statements of resistance to enforcement of gun control laws. This, of course, becomes a tautology, since 15.2-915 specifically includes “resolutions” that address “possession,” “ownership,” and other functions related to firearms. Further, the section bans the “taking of any administrative action,” which, under the terms of many of the second amendment resolutions, would apply to the withholding by counties of funds related to enforcement of gun control statutes. 

The official opinion requested of AG Herring is likely to be issued reasonably soon, and it will be interesting to read. Surely, members of the General Assembly will be interested. Of historical note, when Ken Cuccinelli was Attorney General, he issued an opinion in support of the 1987 and 2002 statutes prohibiting localities from adopting gun control measures. What a difference a decade may make.

 



Categories: gun control, Issues, Local

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