In Virginia, 91 counties, 14 cities, and 29 towns have declared themselves Second Amendment Sanctuary jurisdictions. However, in Harrisonburg, 50 Second Amendment supporters showed up to a city council meeting to discover their councilors would not even discuss it. In Waynesboro, after a rather lengthy public hearing, the vice-mayor withdrew the resolution, in part, because of the rowdy crowd reaction when council did not appear to share the crowd’s views. In Lynchburg, Mayor Tweedy, to her credit, accommodated applause and cheers to speakers but drew the line at jeers.
Many speakers in both Waynesboro and Lynchburg pleaded not to have their gun rights taken away. Those arguments should be made to the General Assembly not to the local governments. The more appropriate argument is to ask the local government to protect the local citizens from unconstitutional laws passed by the state. The statement I made at the public hearing in Lynchburg went something like this:
“A couple of years ago, Virginia’s Sixth Congressional District Republican Committee sued the state because of an unconstitutional law commonly called the “Incumbent Protection Act.” We won our case in Federal District Court and again in the Federal Appeals Court. It cost the state a lot of money to defend this unconstitutional law. BUT because the case was about a violation of the Constitution the state also had to pay plaintiff’s legal team nearly a quarter million dollars to cover their fees. The gun laws currently before the General Assembly are unconstitutional. They will be taken to court. They will lose. The state will have to pay both the state’s lawyers and the plaintiff’s lawyers, and that will be very expensive.
“If City Council supports these unconstitutional laws by its silence, the City could be financially liable as well. And if City police confiscate weapons, and especially if someone is assaulted or killed in the absence of their personal weapons, the City could face not only legal bills, but also compensatory and punitive damages as well. To save the City a lot of money, you need to pass this ordinance and declare that our City will not enforce unconstitutional laws.
“Can you do that? Contrary to what a few people have told you tonight, you can. Attorney General Herring, after he was first inaugurated in 2014, declined to defend in Federal Court the Marriage Amendment to the Virginia Constitution stating that “irrespective of the action of the People in amending their Constitution, that as ‘an exercise of’ his ‘independent judgement,’ he had concluded that when a provision of the Virginia Constitution or Statute ‘violates the federal constitution, he is not duty bound to defend it.” This established two precedents. One, an elected official who reaches the “independent judgement” that a state statute is in violation of the U.S. Constitution is at liberty to decline to enforce that statute. And, an elected official has the power to take affirmative steps to block enforcement of an unconstitutional statute.
“The General Assembly has established the precedent of governmental non-cooperation with the unconstitutional laws of a superior governmental authority. On February 28, 2012 – with both Attorney General Herring and Governor Northam, then legislators, voting in the affirmative – the General Assembly passed HB 1160, which prohibited Virginia from assisting the federal government in the unlawful detention of U.S. citizens under the 2012 National Defense Authorization Act. Thus, the General Assembly established the principle that: “A subordinate level of government has the authority and, indeed, the responsibility to refuse to cooperate with a higher level of government when the higher government enacts a law which violates the Constitution of the United States.” It only follows that this “non-cooperation” applies when local governments are faced with unconstitutional statues enacted by the General Assembly.
“It only follows that City Council not only has the right, but the duty to pass this ordinance to protect the City from legal action and from doing “the wrong thing” in regard to both our state and national constitutions – documents that you swore to uphold when you took office.”
Lynchburg City Council ignored my statement and those of the more than 100 (of the 120 who spoke) others who supported this ordinance and voted against the ordinance by 5-2. I hope that Second Amendment supporters will remember these council actions when election day comes. If you can’t persuade elected officials to vote the way they should, then they need to be replaced by elected officials who will.
Steve “Doc” Troxel, Ph.D.