Virginia Counties Declare Gun Sanctuaries, But Experts Say They ‘Don’t Have Force Of Law’
BY Herschel Smith
4 years, 11 months ago
More perspective from Virginia.
A wave of resolutions have been passed in Virginia counties, declaring sanctuaries and constitutional havens in support of the Second Amendment as a new Democratic majority prepares to take over the state General Assembly in January.
But what do they really mean?
“I think it’s a form of political protest,” said Richard Schragger, Perre Bowen professor of law at the University of Virginia School of Law. “Obviously, it’s caught a certain amount of fire in Virginia.”
This week, Prince William and Spotsylvania counties became some of the latest to pass resolutions affirming their commitment to residents’ rights to keep and carry guns.
In the end, Prince William’s resolution may be short-lived and is likely to be reversed when a new board of supervisors led by Democrats takes control in the county, according to a statement from incoming supervisor Ann Wheeler that was made days before that vote.
Fauquier County seems poised to pass its own resolution in support of gun rights in the coming days. After a public comment period that lasted more than four hours Thursday night and amid concerns about the resolution’s wording, the county’s board decided to delay the vote on their resolution in support of Second Amendment rights until Dec. 23.
“I think there’s a lot of, maybe, misunderstandings about what the impact of these statements, these resolutions that are being adopted, will do,” said Dana Schrad, executive director of the Virginia Association of Chiefs of Police. “They are nothing more than position statements. They don’t have the force of law.”
[ … ]
Professor Schragger said that if gun laws that may be perceived as over restrictive of gun rights do pass, “those laws are enforced and citizens have to abide by them.”
“There’s no ability for citizens in any of these Second Amendment sanctuaries to assert that they don’t have to comply with state law,” Schragger said.
“The sheriffs and local officers have to comply with state law, and the state police will enforce state law,” Schragger added.
We’ve met up with professor Schragger before. Do you think he might be a wee bit biased in his analysis?
So any levelheaded analysis would have concluded that the Sheriff is elected by the people of the county, and is not a state employee. Any levelheaded analysis would have also concluded that county commissioners can make laws just like state lawmakers. What they’ve done is indeed make a law.
And any levelheaded analysis would have concluded that the notion that “if we make laws they must be obeyed” is preposterous given that these very same laws in Connecticut and New York were roundly ignored by the citizens of those states.
The entire paradigm of the folks making these statements is different (and directly contrary) to the existing paradigm in place today in the counties voting these resolutions. Mr. Schragger’s thinking is confused, outdated, outmoded and lacks a critical and legitimate understanding of where we are in America today.
The citizens have guns. Millions of them. The citizens have ammunition. Billions of rounds of it. Mr. Schragger would do well to let that sink in for a while. I’ll say it again. The 2A laws made in the counties have exactly as much power and legitimacy as the people of the counties are willing to give them, and the force with which they are willing to defend them, not one ounce more, and not one ounce less.
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On December 16, 2019 at 12:15 pm, Duke Norfolk said:
Your last sentence says it all. That’s where this is going. It’ll be put up or shut up time soon. I pray for them to have the courage and fortitude to stand up to the tyrants, because it won’t be easy.
On December 16, 2019 at 4:02 pm, Jimbo said:
It’ll be lots easier when you have a million man army of patriots ready to join the party.
On December 16, 2019 at 5:15 pm, TRX said:
> don’t have force of law.
The Second Amendment *IS* the law.
On December 17, 2019 at 4:53 am, Rick Costello said:
I don’t see the laws as being ‘lawful’.
The ‘government’ (both state and federal) thoroughly enjoys making ‘laws’ and their enforcers (police) thoroughly enjoy enforcing them. They are, however, constrained by the courts (especially our Supreme Court) in their application of their “laws” . While government doesn’t like to admit there are limits on their authority to create “laws” and their enforcers claim that they enjoy legal immunity as long as they’re “just following orders” (Adolf Eichmann claimed the same excuse before he was hung in Israel) our Supreme Court warned them quite clearly in Schick v. United States, (1904) 195 US 65, 49 L.Ed. 99, 24 S.Ct. 826 that: “If there is any conflict between the provisions of the Constitution {enumerated powers to make law} and the provisions of the Amendments {Bill of Rights}. Amendments MUST control.”
Government ignores this directive from our highest court and would have you believe they have lawful power and authority to regulate, license and, as it sees fit, – deprive by legislation – the Right of the people to “keep and bear arms” in spite of the fact the our Supreme Court reminded them in Miranda v. Arizona: “Where rights, secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.” Thus, the legislature (state or federal) can not simply ‘pass a law’ that strips the Rights from Citizens and have it be lawful or Constitutional. Read and think very carefully about their directive: ”there can be no rule making or legislation which would abrogate them.” Decisions of the Supreme Court and Rights protected by our Constitution can only be overturned by constitutional amendment.
Indeed, the only way government can “infringe” upon the Right of the People to keep and bear arms is to Amend our Constitution using Article V of our Constitution to acquire the ‘authority’ to “infringe” before they ‘legislate’ any limitations, restrictions, rules or regulations. Until they have the lawful authority as a result of a Constitutional Amendment, our Supreme Court has said (Norton v Shelby) that: “An unconstitutional act is not law; it confers no right; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed” What that means is merely passing ‘laws’ doesn’t make them ‘lawful’ or binding on the public. A ‘law’ needs to be Constitutional to be “lawful” and effective.
The court has said quite clearly (in Miller v. U.S.) that: “The claim and exercise of a constitutional right cannot thus be converted into a crime.” They’ve said quite clearly (in Shuttlesworth v. City of Birmingham) that: “If the State converts a right (liberty) into a privilege, the citizen can ignore the license and fee and engage in the right (liberty) with impunity.” and gone on (in Sherer v. Cullen) that: “There can be no sanction or penalty imposed upon one because of the exercise of constitutional rights.“
Ask yourself, if the legislature passed a law making it a felony for anyone in Moscow to drink Vodka would such a law have any real “lawful” effect? The legislature has no authority/power to write laws effecting Moscow or prohibiting their residents from having a drink. Likewise, the legislative branches have no authority to rewrite or Amend our Constitution using mere legislation. As the court said in Miranda ~ “Where rights, secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.” Without an Article V amendment, ratified/adopted by three fourths of the States, giving the legislatures the power/authority to “infringe” on the Right that the 2nd Amendment precluded the government the authority to “infringe” upon, any ‘gun law’ they pass “imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed”.
https://resistancetononsense.wordpress.com/2018/06/29/our-preexisting-irrevolkable-right-of-self-defense/
On December 17, 2019 at 1:39 pm, Ben said:
The sanctuary laws most likely have no legal effect. Prof. Schragger most likely is correct, whether we like it or not. The reason is that counties are not sovereign entities like the state–instead they are under and subject to the state and have only those rights and powers that the state chooses to give them. In theory, the relationship between states and the federal government is different, because the states are sovereign entities that came together to create the federal government and give it certain powers over them. Counties are nothing more than a part of the state. Sanctuaries are a nice political statement, and a law doesn’t exist if you refuse to enforce it (think about immigration), but the legal fight is at the state capitol and court on Second Amendment grounds, not the counties. I don’t like what the state is doing, but don’t kid yourself that the counties can stop the state from passing whatever law a majority in the legislature wants to pass.
On December 17, 2019 at 1:49 pm, Herschel Smith said:
@Ben,
You’ve missed the point of everything I said.
The sanctuary resolutions/laws at the county level have whatever effect the counties choose to give them. If they back those laws up with force, they will have the force of law. If they don’t, they don’t.
My whole point was that the paradigm the professor has is changing in reality, depending upon the resolve and will of the people.
On December 17, 2019 at 11:22 pm, Ben said:
My point is that they probably don’t have the force of law. They may have force, if the counties back them up, but it’s not the force of law, because a county cannot make law in defiance of the state (unless the state has specifically given the counties that power, which is extremely unlikely).
On December 17, 2019 at 11:37 pm, Herschel Smith said:
Cities and Counties can certainly make a law in defiance of the state (and even the FedGov), and the judicial system has backed them up before (viz. immigration sanctuary cities).
On December 18, 2019 at 10:50 am, Fred said:
@Ben, States don’t give power, people give power, as they see fit, to government(s), and where these governments fail, the people retain all power to abolish it and start over. Please stop thinking like a slave, be like Freemen.