Among other rationales put forward by some second amendment sanctuary advocates in Virginia is the idea that the Commonwealth’s Constitution authorizes an “unorganized militia” which, by their interpretation, grants the right to bear arms notwithstanding any state laws to the contrary. The “contrary” term is that asserted by sanctuary advocates to oppose laws they deem unconstitutional. Opposition to laws as unconstitutional and not yet passed by the General Assembly is a phantom gesture. Interestingly, such also is inconsistent with the opinion of Supreme Court Justice Antonin Scalia in District of Columbia v. Heller (2008), which granted an individual right to bear arms as the opinion specifically includes a right of legislative or administrative regulation of that privilege.
Nor is that privilege “unalienable” as that term is used in the Declaration of Independence. Those rights emanate from the essence of people as members of a polity. The privilege of bearing arms is a mere property right not unalienable. Advocates of second amendment sanctuaries also argue the absolute necessity to bear arms as a last ditch defense against some phantom threat to the Commonwealth and nation.un.
By way of history, in 1771, the Virginia Bill of Rights under Article I, Section 13, by popular vote read:
That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.
The current Virginia Militia under Virginia Code states:
The militia of the Commonwealth of Virginia shall consist of all able-bodied citizens of this Commonwealth and all other able-bodied persons resident in this Commonwealth who have declared their intention to become citizens of the United States, who are at least sixteen years of age and, except as hereinafter provided, not more than fifty-five years of age. The militia shall be divided into four classes, the Virginia National Guard, which includes the Virginia Army National Guard and the Virginia Air National Guard, the Virginia State Defense Force, the naval militia, and the unorganized militia.
The “good feeling” that second amendment sanctuary resolutions generate potentially face other lawful obstacles to enjoyment, even for an unorganized militia. State law (Sec. 18.2-433.2, Paramilitary activity prohibited) states:
A person shall be guilty of unlawful paramilitary activity, punishable as a Class 5 felony, if he:
- Teaches or demonstrates to any other person the use, application, or making of any firearm, explosive or incendiary device, or technique capable of causing injury or death to persons, knowing or having reason to know or intending that such training will be employed for use in, or in furtherance of, a civil disorder; or
- Assembles with one or more persons for the purpose of training with, practicing with, or being instructed in the use of any firearm, explosive or incendiary device, or technique capable of causing injury or death to persons, intending to employ such training for use in, or in furtherance of, a civil disorder.
Thus, the statement of one sheriff boasting that he would deputize thousands of county citizens to defend a second amendment sanctuary resolution may be committing a felony along with those deputized. Constitutional blindness caused by ideology is not a defense to a felony offense. But that same blindness applies also to other provisions of Virginia law, specifically Virginia Code Sec. 44.8 (Governor as Commander in Chief):
The Governor shall be Commander in Chief of the armed forces of the Commonwealth, and shall have power to employ such forces to repel invasion, suppress insurrection, and enforce the execution of the laws.
In this way, the armed second amendment sanctuary advocates, presumably as part of the unorganized militia, would be under the command of one of their adversaries in the gun control debate. As Commander in Chief, the Governor, pursuant to military chain of authority, would reasonably require each militiaperson to register his/her firearms as a measure to evaluate military readiness, i.e. “that in all cases the military should be under strict subordination to, and governed by, the civil power.” [Emphasis added.]