By Brandon Martin
Following the results of the last election cycle which led to a current Democrat-led Virginia state government, 23 counties have passed resolutions declaring themselves Second Amendment Sanctuaries.
The designation comes with the pledge to not use public resources to enforce any deemed unconstitutional federal or state gun laws.
Much debate has been had over the foreseeable legality of the resolutions.
During a Nov. 18 Patrick County Board of Supervisors meeting, County Attorney Alan Black raised opposition to a phrase in the resolution that stated the county’s refusal to use public county funds to restrict Second Amendment rights or to aid in the unnecessary and unconstitutional restriction of those rights.
“You can’t pass a resolution like this unless such resolution is authorized by the statute. The resolution, as written, is prohibited by this (15.2-915) statute,” Black said.
Similarly, Henry County Board of Supervisor Tommy Slaughter, representative of the Reed Creek District, voiced potential legal issues before the board’s 6-0 unanimous decision to become a Second Amendment Sanctuary during a Nov. 26 meeting.
“We need to look more into this,” Slaughter said. “I am a supporter of the 2nd Amendment but the thing is, I don’t know if this resolution is exactly legal. I don’t know if we can tell our law enforcement officers to not enforce laws handed down by the state.”
The term ‘preemption’ applies when law at a higher level of government is used to overrule authority at a lower level. State law can be used to preempt local ordinances, and federal law can be used to preempt state law, according to the National League of Cities.
One case of preemption that may shed light on the legality of sanctuary cities and counties involves the recent dispute of immigration between federal and local governments.
More than 300 jurisdictions across the U.S. are considered immigration sanctuaries. Hundreds of either states, cities or counties declined to tell federal immigration authorities about possible illegal immigrants in their custody and refuse to comply with detainer orders.
According to the Southern Poverty Law Center (SPLC), “sanctuary policies and laws restrict when and how local law enforcement can engage with the federal government in immigration enforcement, in order to maintain local law enforcement’s ability to work with and in the immigrant community. These cities cannot actually shield anyone from deportation, however, or prevent the federal government from enforcing immigration law within their city limits.”
The SPLC went on to say that “sanctuary” is a political term and not a legal one, and that cities and counties are not required to enforce federal immigration law in any way.
“The only federal law on this issue is 8 U.S.C. § 1373, and all it says is that cities and counties cannot prohibit communication with the federal government regarding a person’s citizenship or immigration status. That’s it—there is no requirement that cities or counties actually do anything,” the SPLC website said.
Last year, the executive branch moved to withhold tried to withhold federal money from cities, counties and states that it considers “sanctuaries” for undocumented immigrants.
During the same year, U.S. District Court judge in San Francisco ruled that President Donald Trump exceeded his presidential authority when he signed an executive order Jan. 25 directing his administration to withhold all federal funding from local jurisdictions deemed to be immigration sanctuaries.
The first of the two main legal arguments against the executive branch was that Congress has spending authority under the U.S. Constitution, so it’s illegal for the president to try to withhold money from jurisdictions without lawmakers’ approval. The second was that the 10th Amendment protected state’s rights.
According to the National Conference of State Legislatures, because of civil lawsuits claiming unreasonable search and seizure, courts have ruled that U.S. Immigration and Customs Enforcement (ICE) detainers violate the Fourth and Fifth Amendments. The Fourth Amendment is violated because ICE fails to demonstrate probable cause before issuing detainer forms. Fourth and Fifth Amendments are also violated because ICE fails to provide a notice of the detainer before it is issued.
While the courts have ruled in the favor of state and local governments for immigration, the question of 2nd Amendment Sanctuaries may be different. This issue involves cities and counties versus the state instead of local governments against the federal government.
The National Law Review states that because the Constitution specifies areas that the federal government has jurisdiction over, the states are powerless to act in those areas. Conversely, because those areas are specified and defined, the federal government cannot go outside those boundaries. Immigration law falls within those boundaries in which the federal government may exercise power, but that power does not include the commandeering of state entities without the approval of those states.
In the 1842 U.S. Supreme Court ruling of Prigg v. Commonwealth of Pennsylvania, majority opinion by Associate Justice Joseph Story held that without state approval, no state agency can be made to act on behalf of federal officers, which includes law enforcement agencies.
This notion upheld the concept of federalism but since 2nd Amendment Sanctuaries are primarily aimed at state laws, the same concept may not apply.
Martinsville City Attorney and Assistant City Manager Eric Monday says that the resolution may be solved in the courts.
“Put simply, local governments are to follow state laws,” he said. “Unless there is a specific court hearing stating why a particular state law should or cannot be followed, it is the responsibility of localities to follow the laws outlined by the states.”
Other experts say that the question over the dynamic between state and local governments has already been solved.
“It’s not a new thing that Virginia’s doing. It’s kind of just fitting into the trend,” said Dr. Ben Melusky, an assistant professor of political science with Old Dominion University. “Ultimately the state has control of the localities and can step in pretty heavy handed if the locality refuses to implement the law.”
Melusky also stated that Democrats may run into a case of hypocrisy over sanctuary policies.
“You had (Gov. Ralph) Northam, who vetoed a bill banning sanctuary cities,” he said. Melusky also went on to note that Democrats have overlooked many commonwealth’s attorneys who have dropped small marijuana possession charges.
“You have the same people saying for the longest time that ‘we are effectively going to do this’ as it relates to other policy areas, now telling the other side ‘you can’t do these things’ related to the Second Amendment,” Melusky said. “It’s kind of awkward.”
Delegate Jay Jones (D-Norfolk) on Dec. 2, sent a letter to Attorney General Mark Hearing asking for an opinion on the “Second Amendment Sanctuaries.”
“The legal precedent we would set by allowing communities to selectively ignore those laws at will is alarming and indicative of the same mindset that nearly one hundred and fifty years ago led this county to dissolve into a civil war,” Jones wrote.
While Herring has not given an official ruling yet, he did release a statement hinting that localities will comply with laws passed down by the state government.
“The resolutions that are being passed are being ginned up by the gun lobby to try to scare people. What we’re talking about here are laws that will make our communities and our streets safer. We’re talking about universal background checks, finally, maybe, Virginia will pass universal background checks to make sure that people who are dangerous, who are criminals and who aren’t permitted to buy guns, won’t be able to buy guns,” said Herring. “So, when Virginia passes these gun safety laws that they will be followed, they will be enforced.”
Supporters of the resolutions agree that the movement is more symbolic than legally binding.
“This is the localities making a show of force to the legislators in Richmond that the gun laws they are proposing are not what we want,” said Ashley Chriscoe, Chair of the Gloucester County Board of Supervisors.
During a Dec. 5 conversation with 10 On Your Side, Sen. Mark Warner (D- Va.) urged patience by local residents before voicing opposition.
“I think you will see rational, legitimate gun safety legislation taken up as appropriate in the Virginia General Assembly,” Warner said. “My hope would be that some of these communities would watch and see, you know, what the General Assembly actually passes and what Gov. Northam might sign before they assume the worst.”
