Do These Second Amendment “Resolutions” Have Any Teeth And Are They Legal?
BY Herschel Smith
5 years ago
Via Virginia reporter Mack, this bit of interesting analysis.
But do these resolutions have any teeth?
The short answer is: Not really. If local officials refuse to enforce the new state laws, they themselves would be breaking the law. Since most wouldn’t do that, the measure is really just symbolic.
[ … ]
The term “sanctuary cities” might remind some of similar efforts taken on the issue of immigration enforcement — cities that said they would not do the government’s bidding when it came to pursuing undocumented immigrants.
But there are key differences between those and the current situation, said Richard Schragger, a law professor at the University of Virginia. States and localities have the option to cooperate with federal immigration laws because the Constitution limits the ways the feds can force locals to enforce federal law.
But if a local official refuses to follow state law, that becomes more of a problem, he said.
Police officers do have discretion when it comes to certain laws. Little could be done legally, for example, in a situation where a cop pulls someone over and finds they have a gun they’re not allowed to have and decides not to do anything about it.
But local officials then open themselves up to contempt charges and police officers to individual liability, Schragger said. Say the officer doesn’t confiscate a gun that’s supposed to be under a new law, and then someone gets killed with the same weapon. The officer could become liable.
This is all a pregnant bit of prose and requires some unpacking. Richard Schragger, a law professor at the University of Virginia, has misled the reporter and the readers. It’s all quite a bit more complicated than that, and he knows it.
His analysis is similar in import to the one today by a member of the Virginia legislature, David Toscano, written at Slate.
Conservatives have railed for years against so-called sanctuary jurisdictions, criticizing localities that refuse to cooperate with federal immigration policies they deem heartless and ineffective. In the past year, however, some conservative lawmakers have taken a page from the progressive playbook, employing sanctuary imagery in opposition to gun safety legislation they deem to be an unconstitutional restriction of their rights under the Second Amendment.
The two approaches are classic cases of false equivalency. Jurisdictions that proclaim themselves sanctuaries for immigrants do not seek to violate the law; they simply refuse to engage local law enforcement in supporting actions that are federal responsibilities. They do not block the law, but simply insist that it should be enforced by those who have the responsibility to do so. For some proponents of so-called gun sanctuaries, however, the goal is to prevent enforcement of state law that the jurisdiction (not a court) deems unconstitutional.
Oh. Is that the way it works? Well then. I guess Reuters is wrong to point out that “Sanctuary cities are those where local officials decline to hand over illegal immigrants for deportation.” Yes, in fact, that’s exactly what an illegal alien sanctuary city is.
Professor Schragger, a little digging shows, absolutely hates preemption (this link also works). You see, he wants cities and towns to be able to levy taxes, impose regulations and do all sorts of things not granted authority by the state. He calls preemption an “an attack on American cities.” As long as the tilt is towards more and more regulation, he’s okay with it all. If cities seek to ignore state law, he’s not.
So by attempting to pose a quick defeater argument for the equivalence between illegal alien sanctuary cities and 2A cities and counties, both authors have introduced more problems to deal with. The most significant illegal alien sanctuary city case Trump has won merely allowed the FedGov to “give preferential treatment in awarding community policing grants to cities that cooperate with immigration authorities.” That’s it. That’s the sum total of the judicial victory.
So what Toscano and Schragger have done is pose a defeater, and hope that you didn’t dig to find the details enough to see that their argument fails, and does so miserably. Their attempt at defeating the “false equivalence” ends up showing the similarity, and yet they still dislike state attempts at preemption on illegal alien sanctuaries, and like it for 2A sanctuaries.
They’ve done nothing more than restate their own axiomatic irreducibles, or presuppositions. They both bias towards so-called progressive views, while denying the right of others to invoke those same tools for their own uses. But the law is the result of these philosophic pre-commitments, not the source of them. Philosophic pre-commitments come first, not last. The law comes last, not first.
We do the very same thing, recognizing that our own pre-commitments are not theirs. The fundamental divide has nothing to do with the law, per se. It has to do with the polarization of America, which not just continues unabated, but is accelerating. We dislike preemption when it comes to preservation of our 2A rights, and like it when it comes to illegal alien sanctuary cities. These views have to do with preservation of certain God-given rights, tendency in the Latino voters to undermine those rights, and other issues too involved to fisk at the moment.
Again, philosophic pre-commitments govern the outcome of the debate, not the law, the law being the result of the debate. That’s why judge-shopping is so in vogue with the progressives. Philosophic pre-commitments can change your view of everything, not least of which is how mankind should be governed.
But that doesn’t end the issues with the analysis above. Professor Schragger has oversimplified the issue when he discusses failing to remove weapons from a citizen and that weapon being used in a crime, leading to culpability and liability by the LEO. Does the professor think that LEOs are going to log in weapons owners, along with the respective serial numbers of all firearms, make permanent records searchable by NICS or some other means (i.e., a registry), and make them available for future use by law enforcement? Form 4473 isn’t a registration, and firearms can be sold to others in person-to-person transfers. Having your information on Form 4473 proves nothing concerning present ownership of a firearm. What tool does professor Schragger think will be used for this draconian scheme of culpability? He posits all sorts of wet dreams for controllers, but has no idea how this all functions in real time and space.
Piling problem on top of problem, professor Schragger knows, or at least he should know, that LEOs bear no responsibility whatsoever for the protection of the public. We’ve seen that from the doctrines established in Castle Rock versus Gonzalez and Warren versus the District of Columbia. No LEO will stand trial for failing to confiscate a weapon because of it being used later in a crime. That’s a preposterous notion, a sophomoric pretension suitable only for scare-tactics.
As to the extent of efficacy of these ordinances and resolutions, that’s an open question and both of the authors know it. Sheriffs may lose their nerve, individuals may not find support among neighbors, and militias may fall apart. My bet is against this.
Sheriffs may arrest state agents for enforcing new gun control laws. Sheriffs can be thrown out of office and new ones elected. Militias may end up forming road blocks and preventing state agents from enforcing any new laws. Firearms will be purchased across state lines and from person-to-person. Existing firearms will not go away, and most assuredly will never be registered in a state registry. The compliance rate for these kinds of laws in New York and Connecticut was virtually non-existent, and Virginia isn’t Connecticut.
What I’m certain of, however, is that state agents and politicians of Virginia have absolutely no idea what’s coming, and presume the wrong things about the people of Virginia. Pollyanna analyses like that from professor Schragger are misleading, and a much better gauge of what this will look like is knowing the people of Virginia.
In summary, 2A ordinances and resolutions have exactly as much teeth as the people of Virginia and their willingness to oppose new laws – not one ounce more, and not one ounce less, the professor and the politician notwithstanding.
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On December 12, 2019 at 1:27 am, Longbow said:
Legal: We have a vote to decide whether or not to kill Herschel and cook and eat him for dinner. Majority vote makes it “legal”.
Lawful: “… ,the right of the people… ,shall not be infringed.”
Common Law. Natural Law.
It was Christianity which gave rise to the recognition of Common Law. There is a Law higher than the King’s whim. Murder, when done by the King, is still murder. Theft, when done by the King, is still theft. The Nobles have rights too, as well as the commoners, good King John be damned!
The other side DOES NOT CARE about anything they do being lawful.
To them, right and wrong are defined as “What I want, and what I don’t want”.
To them, Lawful and Legal have the same definition. “What I can get away with, and what I can’t get away with”.
Satan, in his rebellion, was the first, and photo-typical, Narcissist. That is what we are dealing with.
The other side (Marxists, Socialists, DemonRats) is at WAR with the rest of Humanity. We have refused to acknowledge this fact and continually assign rationality and reasonableness to them. We have refused to accept the reality that they hate us. Why do they hate us? Why are they at war with us? Because we are not under their boot heel. That is reason enough. We want only to be left alone. They cannot abide that. Ever.
Once over this hump, the rest is easy.
On December 12, 2019 at 7:29 am, Badger said:
VCDL’s blurb in my Inbox this morning discusses serious arrangements already made, for serious numbers of buses chartered, with online ticketing, and stops along the way from around VA to Richmond on January 20. This is individual work coordinating in support of the whole; quite impressive. Would that many other such areas of the country were that organized, something the tyrants already have, the more Americans get in their head. “Let George do it” just gets you on the boxcar.
On December 12, 2019 at 9:42 am, Wes Rhinier said:
Ramping up….
https://ncrenegade.com/editorial/the-law-is-the-law-virginia-democrats-float-prosecution-and-national-guard-for-police-who-fail-to-enforce-gun-control-legislation/
https://ncrenegade.com/editorial/bfytw-state-level/
On December 12, 2019 at 10:16 am, Fred said:
@Longbow,
Nicely done. Thank you. Theology and intent are settled.
All those people who turned out will think that they have won and will go back to their Fox News mistakenly satisfied. Where were they when Republicans, Trump specifically, promoted the notion of Red Flag laws? Where were they when the Trump/NRA Red Flag laws passed in FL, IN, SD and other Conservative Inc. states?
I’m way less optimistic. Watching vids, reading and listening to the ordinances and resolutions, it looks like Republicans, all over 50, most fat, are simply reacting to Democrats. If the left is smart they can avoid the war entirely by simply waiting another 20 years. Traditional Americans still fail to understand the nature of this war. Those local Republicans don’t give a rip about you or your rights. I know, I’ve met them at length here in TN. They are simply playing the game. They will flip on you faster than a five dollar hooker if a Republican of prominence tells them to, I know this first hand.
As to the Resolutions; those carry all the weight of giving the dog catcher a plague for rescuing a kitten in a tree. As to the Ordinances that I’ve seen/heard they all SUBMIT to the current Federal and State gun laws.
Again; all those people who turned out will think that they have won, will go back to their Fox News mistakenly satisfied. This is what the Conservatives have been doing for decades, while the Left is building the people and infrastructure to bulldoze them into trenches.
Nothing has changed. I’m all for a huge, robust, intimidating rally at Richmond but the second a politician, ANY politician gets up to speak, or a government incorporated and regulated non-profit head(s) speaks, it is then a total sham. I’m certain that this whole thing will be subsumed by Republican Party Inc, and then die a slow, and painful, at least to me, death. Unless and until Traditional Americans reject all parties and all incorporations and submit to God Almighty only, nothing will change.
No power of men can save America. For the hundredth time; there are 70 million dead babies. No man will or can save you!!!
The very best thing that could, yay, SHOULD come out of this is that folks make local contacts with neighbors, not governments at all, but neighbors. Make plans for your street and neighborhood. The pantie waists in local gov will do nothing, I know.
On December 12, 2019 at 10:21 am, Fred said:
I pray no dog catchers in VA get plague. There should be a q in that word somewhere. Heh.
On December 12, 2019 at 12:04 pm, Phil Carson said:
Regardless of it’s political origins or it’s usurpations of powers, undoubtably 1860 was the turning point, and what we are witnessing in Virginia, and elsewhere is the enevitable outcome of 1860 and the wat of northern agression which both has never stopped, was not “won” by the north, and whatever you want to call this tyranny is certainly up to you and your perspectives and knowledge.
I’ll call it the deep state because it fits, or as Fabian, or cultural marxist, or organized crime dressed up in elected representative skin suits, it matters not, only as a convenient handle.
The “deep state” was born in violence.
It has ruled through threat and application of violence as an instrument of fear.
It has survived using violence in all instances, from world war to genocide of unborn children.
So it will die in violence.
Rightfully so it will end.
This is what the future will bring.
It is a constant feature of tyrants to hold vast contempt for anyone who has spirit of dignity, achieved actualization of self reliance, creation of wealth, acquisition of property, most especially the infantry combat suitable rifle, knowledge of the truth of us as free men and the unrevised historical record of where, how, why, and the means of the birth of Liberty.
The dignity of Liberty and independence of self determination and self reliance, the mental and spiritual means to take the philosophical road less traveled and create from the ideas and precepts the man who is free to his bones, this is the biggie. This is as large as property called the AR15 in terms of absolutely how critical it is for this so called deep state to deprive us of our ownership, clear unequivocal understanding of the rifles place in the scheme of our freedom and ultimate means of self determinations.
There would not be tyrants and Freemen otherwise. Seems obvious to say. It can not be forgotten for one second This truth of us must be cultivated, nurtured, tended and harvested, otherwise we will remain un-sovereign subjects of the regime of these tyrants.
An armed to the teeth citizenry who know what they are about does not get any more dangerous, nothing is as dangerous, nothing so indomitable, no humans possess such motive power, there is no audacity like our audacity, we represent the ultimate in not just defiance but the ultimate in the sense of the citizen warrior, which has nothing to do with military doctrine tactics or standards of the GI solder, and everything to do with men who will not be denied.
It don’t need explaining.
We all know what it’s about.
The usurpers at the top, and the badged armed leg breakers at the bottom of the deep state hierarchy got them a lick of work, they are playing catch with a fucking grenade thats pin is pulled.
Their system of power is predicated on the only rule, there are no rules, but for us dirt people. They have created the state where rules are arbitrary, invented and justified as convenient to them and their intent, other words rule of law has ceased to exist. A state of absolute lawlessness exists now. You do understand what this implies, because the last noble honorable effort to use peaceful means of petition and redress are mocked as illegitimate, and that leaves no other remedies but the ultimate, the use of naked power, for underneath everything all there is is power. Power to hurt, power to destroy, power to kill, power that enjoys the greatest equality and only equality that really exists.
Legitimate Virginia state government no longer exists, they replaced that with fucking fucked up scumbag FUBAR state of elitist anarchy.
They have laid bare as the consequences of eliminating the rule of law, the constitutional imperatives and agency of sovereign representative form of governance, replacing it with rule of men, the power of force and application of violence, as the ultimate in equal employment opportunity.
If yu are a Freeman you are no longer bound by the honorable notion of rule of law above all else. You are now absolutely free in every sense possible to understand and actualize.
Looking at developments from an outlier position, we have been gifted an incredible opportunity, something that comes maybe once in an age if it shows up at all, the conditions to do things we as American’s in the patriotic sovereign sense could never do under any other circumstances. Northram and his masters along with his minions have legitimized total resistance to them, they have created the most legitimate thing possible, which they have worked tirelessly to subvert undermine and destroy, they made us totally completely free men.
Nothing holds us back now but our perceptions, our prudence, how effectively we use our brains and our rifles, and as it will become brutally clear, for the grace of God for where each of us dare go.
There it is.
I wonder if they grok the terrible implications, and if they do, they must be feeling pretty front of the bus and everything they have the resources and manpower, never mind the indomitable commitment of their ulterior motives across their ranks, from armed badged legbreakers to minions of the inner circles of their hierarchy to carry out the ultimate enforcement of totalitarian power. It is a monstrous task in every sense. Bring out the National Guard? Cut off the flow of tax dollars? Unbridled confiscation of private property arbitrarily? The clearly inferred threat of use of force and violence to carry out their proclaimed diktat? Complete abandonment of Habeas Corpus, Posse Comitatus as a matter of course, Attainder of Writ as the instrument of proscribing living people and their private property along with the natural born elements which are the most unalienable things imaginable about us short of extinguishing our lives for the sake of refusing to comply with the whole cloth edicts of tin pot despots?
You couldn’t ask for a better set-up to push the re-set button. To go back to the beginning and make good on all the mistakes that got us in this predicament to begin with. All that remains now is an illusion of a civil society, a fig leaf if that of legitimacy of government and the legitimacy of those running it.
They have zeroed out the clock. Under the illusion they are trying to maintain, everything has gone back to the ultimate basics, which begin with the constant of law of the jungle, survival of the fittest. From there where we go is totally up to us. Doesn’t get any better than this.
Lets Win.
On December 12, 2019 at 12:05 pm, Mack said:
@Longbow,
Nicely done. Thank you. Theology and intent are settled.
I 100% concur with Fred: NICELY done!
Thank you and God Bless.
On December 12, 2019 at 12:19 pm, kaiserworks said:
“Do These Second Amendment “Resolutions” Have Any Teeth And Are They Legal?”
Is the Patriot Act legal?
Is the NFA legal?
Is the war on some drugs legal?
Are forfeiture laws legal?
Are property taxes legal?
Are national / state ID’s legal?
Why does the common man care what is “legal” any longer?
On December 12, 2019 at 12:27 pm, Wes Rhinier said:
https://ncrenegade.com/editorial/inevitable/
On December 12, 2019 at 12:56 pm, Fred said:
You know what Mr. Rhinier, I wouldn’t dust off an old pen knife sitting in the bottom of a junk drawer for Trump and his National, yes Barr has made it National, Red Flag apparatus. If some Democrat nutjob put a bullet in his head I wouldn’t even read the news stories about it. Go to war over Trump, do you mean kill a man or men and further wreck Western Civilization over Trump? Seriously?!?! That’s just stupid. And why aren’t Republicans on your list of “domestic enemies”?
Trump is a traitor. He SHOULD be impeached and hanged. The first time the joke was on them. You elect him again and the joke is on you. Go to war for him and satan gets the last laugh.
His promotion of Extreme Risk Protection orders, known as Red Flag laws, is a violation of civil rights under 18 U.S. Code Chapter 13 – § 241 Conspiracy against rights and – § 242 Deprivation of rights under color of law. These Red Flag laws overturn more than four centuries of American jurisprudence by effectively nullifying the 6th Amendment, the 5th Amendment, the 4th Amendment, and the 2nd Amendment and where federal agents WILL conduct such acts as a Red Flag raid they would violate the 10th Amendment as well, and all of the common law of our post Reformation ancestors. Trump is as lawless as any man who has sat in that office. He is a proven Globalist, Zionist, NWO, CFR, House of Saud traitor. War over Donald “Take the guns first” Trump?
On December 12, 2019 at 1:08 pm, 15Fixer said:
It is a fundamental principle that all acts of officials not derived from the delegated powers of the constitution are null and void from inception, not just from the point at which a court may find them unconstitutional.
On December 12, 2019 at 2:00 pm, Wes Rhinier said:
@Fred I understand and agree with some of your sentiment. Anyone who has followed and read any of my previous articles understands that I include most Republicans in the Deep State.
As Far as going to war over Trump, what some 63 million people voted for the guy. When a vast majority of those people who voted for him realize that their vote is useless, many are going to feel they have nothing to lose, if you know what I mean.
Trump has been no friend to the 2nd Amendment and I have hammered him on many issues.
So thanks to jumping to conclusions about me even though you obviously know nothing about me or have read any of my previous articles.
It’s a serious problem we have in this Freedom movement. We are quick to attack each other, while ignoring the real enemies.
On December 12, 2019 at 3:33 pm, Mack said:
I gave a link to this EXCELLENT analysis, and here is David’s Post:
* http://waronguns.blogspot.com/2019/12/toothless.html
“Totalitarian apologists rationalize why resistance to tyranny should be illegal.”
Totalitarian apologists is what they are.
On December 12, 2019 at 3:40 pm, Mack said:
Herschel,
I do need to clarify this that you wrote:
“Piling problem on top of problem, professor Schragger knows, or at least he should know, that LEOs bear no responsibility whatsoever for the protection of the public. We’ve seen that from the doctrines established in Castle Rock versus Gonzalez and Warren versus the District of Columbia. No LEO will stand trial for failing to confiscate a weapon because of it being used later in a crime. That’s a preposterous notion, a sophomoric pretension suitable only for scare-tactics.”
That’s fine as far as it goes, but everyone here should understand the controlling case here in the Fourth Circuit is Pinder v. Johnson (En Banc), 54 F.3d 1169 (4th Cir., 1995).
Here it is:
* https://casetext.com/case/pinder-v-johnson
The really controversial passage is Part V.
You really need to read this, Herschel.
On December 12, 2019 at 3:45 pm, Phil Ossiferz Stone said:
Both the gun ban and the red flag law openly violate the Virginia state Constitution — never mind the national one. The question begs itself: What is the enforcement mechanism? File suit and suffer for a decade while the case wends its way through a rigged court system, and your blue-state overlords pass more unConstitutional edicts every year? That’s the California model.
https://law.lis.virginia.gov/constitution/article1/
Section 13. Militia; standing armies; military subordinate to civil power
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.
Section 10. General warrants of search or seizure prohibited
That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.
On December 12, 2019 at 4:48 pm, Chris Mallory said:
“Firearms will be purchased across state lines and from person-to-person. ”
Be careful with both of those. Person to person will depend upon state law.
Crossing state lines is where you really get into trouble. According to Federal law, person to person sales across state lines are illegal and the ATF has been known to run stings to catch people both buying and/or selling face to face across state lines.
A citizen can legally buy a long gun across state lines, as long as the sale follows the rules of both states and happens at an FFL dealer. Kentucky dealers are required to enforce the Illinois waiting period for Illinois buyers. And for the sake of discussion, say VA bans the sale of all semi auto rifles. A VA resident could cross into KY and buy a bolt or lever gun, but even though the semi is legal to sell in KY, a VA resident could not legally buy the semi in KY since the sale would not be legal in VA. I doubt very many FFLs will risk their license to make that illegal sale.
Do what you think best, but remember the ATF has unlimited funds to try and snare you when you cross a state line. Never talk to the cops/Feds.
On December 13, 2019 at 5:09 am, Chicolini said:
(((Schragger)))
On December 13, 2019 at 8:41 am, Ned2 said:
Any law passed is supposed to have passed Constitutional muster.
If not, it’s unenforceable, in theory that is.
The total disregard for the law by the left needs to have consequences. Until that happens, they’ll keep doing what they do.
On December 14, 2019 at 5:24 am, Dan said:
If a cop sees you ‘roll’ a stop sign and doesn’t cite you then technically he is breaking the law just as surely as if he refuses to enforce a gun control law he doesn’t agree with. Which in the REAL WORLD means that both cops AND DA’s pick and choose WHO to target and WHICH laws they choose to arrest, charge and prosecute for. This would be no different in Virginia. The state can’t go after a cop for refusing to enforce gun laws and NOT go after them for ignoring OTHER transgressions…the most specious and obvious being the “Sanctuary City” insanity where blatantly violent criminals are shoved back out onto the streets to victimize society without fear of arrest, incarceration or deportation. The threats to use the National Guard to impose these laws is exactly that….an empty threat.
On December 14, 2019 at 10:56 am, TRX said:
> If local officials refuse to enforce the new state laws, they themselves would be breaking the law.
—
The law says, “…the right of the people to keep and bear arms shall not be infringed.”
Virginia can pass whatever local laws they want, but the Constitution of the United States trumps all of them.
Once you decide to ignore the Constitution, which is the root of *all* US law, then… you have *no* law at all.
They really shouldn’t want to open that box.