Will ‘Second Amendment sanctuaries’ test authority of Virginia government?

A fundamental clash over gun rights and gun control looms a few weeks away and resolving it could test the operational structure of Virginia government and the rule of law.  

Across the commonwealth, rural localities are declaring themselves “Second Amendment sanctuaries” in response to last month’s election that gave Democrats unfettered control of state government for the first time in 26 years.

Virginia’s Republican-ruled General Assembly for decades was a dead-end for gun control bills. Nothing – not the April 2007 Virginia Tech massacre or this May’s deadly Virginia Beach shooting – changed the way that even marginally restrictive gun legislation methodically died.

In the wake of the Virginia Beach killings, Gov. Ralph Northam called for a special legislative session in July to consider a package of gun control bills, including restricting high-capacity magazines, closing the gun-show loophole and “red-flag” measures to keep firearms out of the reach of disturbed individuals adjudged likely to harm themsvelves or others. House and Senate GOP leaders sidetracked the bills for studies and shut the session down in barely an hour with no votes taken. 

That, combined with President Donald Trump’s low popularity, didn’t play well in Virginia’s burgeoning cities and suburbs and drove a large Democratic turnout in the Nov. 5 election. It cost Republicans their two-decade lease on legislative power. 

Overnight, the script was flipped. Long-moribund measures such as the Equal Rights Amendment, raising the minimum wage and easing absentee voting requirements now look on track for passage. None has triggered the visceral reaction of the Democrats’ proposed gun restrictions. 

Officials in a growing number of localities, mostly rural, have pledged not to enforce new gun controls should they become law. 

“More than anything, this is symbolic,” said Larry J. Sabato, director of the University of Virginia Center for Politics. “This is an opportunity for sheriffs and other local officials out in rural areas to show their constituents that they’re tough and that they’ll protect their guns.”

“This shows the extent to which fear has crept into our politics,” he said.

In a Facebook post last month, Lee County Sheriff Gary Parsons assured his constituents: “I want to assure the citizens of Lee County that me and my officers will stand up to any federal or state agency that attempts to infringe upon our gun rights.” In a subsequent interview with The Virginia Mercury, he said the post was intended to make clear that his office would not take part in any effort to seize once-legal guns that are later outlawed. 

The News Leader of Staunton quoted Augusta County Supervisor Pam Carter as telling a crowd that packed a board meeting where a sanctuary resolution was passed that the board was “taking a stand to protect your constitutional rights and sending a message to Richmond that we will not stand by and do nothing.”

In Prince William County, the outgoing GOP-dominated Board of County Supervisors is expected to pass a Second Amendment sanctuary resolution at its final meeting on Tuesday, said retiring Republican Chairman Corey Stewart. Twenty-eight days later, a new Democratic-led board will repeal it when it meets for the first time, said Ann Wheeler, the board’s Democratic chair-elect.

And in Virginia Beach, as City Council met last Tuesday near the same city government building where a dozen people were shot dead in May, a pro-gun crowd demanded the city enact a Second Amendment sanctuary measure and chanted “No more gun control.” 

Democrats aren’t sitting idle. Del. Jay Jones, D-Norfolk, has asked Attorney General Mark Herring for a formal opinion regarding the legality of localities defying state law.

A.E. Dick Howard, a University of Virginia law professor and executive director of the commission that wrote Virginia’s current Constitution, compares the Second Amendment sanctuary movement to the discredited legal theory of “interposition” that underpinned “Massive Resistance,” Virginia’s failed effort to thwart federal orders to desegregate public schools after the U.S. Supreme Court’s 1954 Brown v. Board of Education ruling. 

“This has the specter of interposition hovering over it,” Howard said. “That effort went nowhere and had no basis in law, and neither does this.”

He notes that gun-rights advocates appropriated the left’s own language for “sanctuary cities” that refuse to use local tax-funded resources to carry out federal immigration crackdowns. But there is a critical legal distinction between the two, Howard said. 

The federal government can’t commandeer local law enforcement to enforce federal law, the high court ruled in its 1997 Printz v. United States decision. Writing for the court majority, the late conservative Justice Antonin Scalia upheld the principle of federalism, noting that the 10th Amendment limits what the federal government can direct states and their political subdivisions to do. 

For Second Amendment sanctuaries, however, “no such limit stands between states and their localities,” Howard said. “Cities and counties in Virginia are creatures of the state,” he said, meaning that they only have such powers as the General Assembly grants them.

What recourse might the state have if localities defy new state laws? It’s not clear, Howard said, but options could include arrests and removal from office of local officials and possibly withholding state funding. 

The remedy for opponents of new gun laws is not arbitrary and extra-judicial nullification by local officials but due process guaranteed by state and federal courts of law, Howard said. 

“Local officials don’t get to decide which state laws are constitutional. That’s for the courts to decide,” Howard said. “You don’t just shake your fist and say ‘No! I’m not going to abide by the law!’”

“We fight these battles through the legal process,” Howard said. “You don’t just shake your fist and say ‘No! I’m not going to abide by the law!’”

UPDATE: This post has been edited to add more background information about A.E. Dick Howard.