Virginia AG Says 2A Sanctuaries “Have No Legal Force.” But Is That Actually True?

Authored by Daisy Luther via The Organic Prepper blog,

The Attorney General of Virginia stepped into the fray yesterday with an opinion on the validity of Second Amendment Sanctuaries that have sprung up across the state in response to draconian gun control legislation. He said that the Second Amendment Sanctuary resolutions have no legal force and that municipalities will have no choice but to enforce the unconstitutional laws, should the bill be turned into law in January.

But is this actually true? Or is it just a statement meant to discourage dissent? Digging into this, it seems that it’s certainly not as cut and dried as the AG would have us all believe.

This article will be filled with lots of quotes from pertinent legal documents. I’m not an attorney so I’m just laying out my findings. The emphasis throughout is mine.

You can draw your own conclusions.

The Official Statement

Let’s start out with what AG Mark Herring had to say.

The Virginia Constitution, the Code of Virginia, and established common law doctrines all bear on these questions.

First, the Constitution of Virginia provides that all local authority is subject to the control of the General Assembly. For example, Article V Il, Section 2 of the Constitution provides that “[t]he General Assembly shall provide by general law for the . powers . of counties, cities, towns, and regional governments.”[1]

Second, the Code of Virginia establishes the supremacy of state law over local ordinances and policies. Section 1-248 provides:

The Constitution and laws of the United States and of the Commonwealth shall be supreme. Any ordinance, resolution, bylaw, rule, regulation, or order of any governing body or any corporation, board, or number of persons shall not be inconsistent with the Constitution and laws of the United States or of the Commonwealth.[[2][3][4])

As the Virginia Supreme Court has explained, because local authority is subordinate to state law, “local ordinances must conform to and not be in conflict with the public policy of the State as embodied in its statutes.

Third, established common law doctrines specifically limit the authority of local governments. Virginia follows the Dillon Rule, which provides that local governments may exercise “only those powers expressly granted by the General Assembly, those necessarily or fairly implied therefrom, and those that are essential and indispensable. The Dillon Rule is one of strict construction: “[I]f there is a reasonable doubt whether legislative power exists, the doubt must be resolved against the local governing body. Thus, when a Virginia locality seeks to take any action, the Dillon Rule applies “to determine in the first instance, from express words or by implication, whether a power exists at all. If a locality cannot identify a reasonably specific source of delegated authority, “the inquiry is at an end” and the act in question is unauthorized.

These constitutional, statutory, and common law doctrines establish that these resolutions neither have the force of law nor authorize localities or local constitutional officials to refuse to follow or decline to enforce gun violence prevention measures enacted by the General Assembly.

l . By their own terms, these resolutions have no legal effect. Although the resolutions typically contain several “Whereas” clauses, the “be it resolved” clauses generally do not purport to take any concrete action. 15 Instead, the operative clauses: (a) “express[]” the “intent” of the locality’s Board of Supervisors “to uphold the Second Amendment rights of [the county’s] citizens,” (b) “express[]” the Board’s “intent that public funds of the [clounty not be used to restrict the Second Amendment rights of the [county’s] citizens,” and (c) “declare[]” the Board’s “intent to oppose” any “infringement” or “restrictions” of their residents’ Second Amendment rights using “such legal means [as] may be expedient, including without limitation, court action. These general statements do not direct or require any specific result, and any suggestion of potential future action is entirely speculative.

It also bears emphasis that neither local governments nor local constitutional officers have the authority to declare state statutes unconstitutional or decline to follow them on that basis. “All actions of the General Assembly are presumed to be constitutional. Furthermore, it has long “been the indisputable and clear function of the courts, federal and state, to pass upon the constitutionality of legislative acts. It follows from these well-established principles that all localities and local constitutional officers are required to comply with all laws enacted by the General Assembly unless and until those laws are repealed by the legislature or invalidated by the judiciary.

Nor may localities or local constitutional officers decline to enforce laws enacted by the General Assembly on the theory that requiring them to do so would “commandeer” local resources. Although the United States Supreme Court has held that “the Federal Government may not compel the States to implement . . . federal regulatory programs, that doctrine derives from the specific limitations on Congress’s legislative powers and the “residuary and inviolable sovereignty” retained by the states in our federal system. 25 In contrast, “the Constitution of Virginia is not a grant of legislative power to the General Assembly,„ 26 and, unlike Congress, [tlhe authority of the General Assembly shall extend to all subjects of legislation” not specifically “forbidden or restricted” by the State Constitution. 27 And neither the Federal Constitution nor Virginia law recognizes any “anti-commandeering” principle that allows localities or local constitutional officers to refuse to participate in the enforcement of state law.28

Conclusion

It is my opinion that these resolutions have no legal effect. It is my further opinion that localities and local constitutional officers cannot nullify state laws and must comply with gun violence prevention measures that the General Assembly may enact. (source)

You can read Herring’s entire opinion and get the citations here.

What is the Dillon Rule?

This is a rule of government embraced by 39 states.

Dillon’s Rule is derived from written decision by Judge John F. Dillon of Iowa in 1868. It is a cornerstone of American municipal law. It maintains that a political subdivision of a state is connected to the state as a child is connected to a parent. Dillon’s Rule is used in interpreting state law when there is a question of whether or not a local government has a certain power. Dillon’s Rule narrowly defines the power of local governments.

The first part of Dillon’s Rule states that local governments have only three types of powers:

-those granted in express words,
-those necessarily or fairly implied in or incident to the powers expressly granted, and
-those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable.

The second part of Dillon’s Rule states that if there is any reasonable doubt whether a power has been conferred on a local government, then the power has NOT been conferred. This is the rule of strict construction of local government powers. (source)

Virginia set a precedent with Dillon’s Rule back in 1896 and is considered one of the strictest states for the rule. It has been applied consistently ever since, taking power from local governments and centralizing it at a state level.

However…

It’s important to note that Dillon’s Rule is no more a law than Second Amendment Sanctuary resolutions. It’s a philosophy, albeit one that has consistently been applied in the Virginia Supreme Court for 125 years.

The Dillon Rule was adopted by the Virginia Supreme Court 120 years after Virginia declared its independence and created its first constitution. The rule is not a law passed by the General Assembly, and it was not based on a specific section in the 1869 state constitution that was in effect when the court ruled on the Winchester arson reward lawsuit.

The Virginia Supreme Court did not violate the separation of powers and somehow create a new law when adopting the Dillon Rule. Instead, when the court cited the Iowa justice’s rulings, it created the legal framework for interpreting the legality of many laws passed by state and local governments.

The framework has empowered the General Assembly and limited the authority of local governments. Judge Dillon’s legal philosophy was based on the assumption that local government was less competent and more corrupt than state government. However, that ignores the professionalization of local government since 1896. (source)

Dillon’s Rule can be federally preempted, too.

The American University Law Review published a paper regarding the Dillon Law in regard to sanctuary states and cities that were acting in defiance of federal immigration laws.

The issue of federal preemption of state law is a complex and prevalent topic in the immigration debate today,and the issue is relevant to Dillon’s Rule because it could be argued that preempts the outcome of a Dillon analysis in this context.

Furthermore, the issue of preemption is particularly tricky here because Dillon’s Rule deals with what the law does not say, rather than an express provision of state law in conflict with federal law. Under preemption principles, where state and federal law conflict, federal law governs. However, where there is no conflict, state law applies. (source)

The question here is whether federal law would conflict with state law enough to preempt Dillon’s rule.

Does the Dillon Rule override the power of County Sheriffs?

County sheriffs are often considered the last against unconstitutional legislation, with the authority to defy even federal law.

Historically, some sheriffs have not only enforced the laws; they have also decided which laws not to enforce. They view this as protecting the people from the intrusions of the federal government.

The “constitutional sheriff” movement is comprised of current and former members of law enforcement who believe that sheriffs are the ultimate authority in their jurisdiction—even above federal law enforcement…

…While it may seem like a fringe movement, it is prevalent enough to be taken seriously. In 2013, 500 sheriffs agreed not to enforce any gun laws created by the federal government. In Utah, almost all elected sheriffs signed an agreement to protect the Bill of Rights—and fight any federal officials who tried to limit them. [Robert Tsai / Politico] (source)

In 2013, Sheriff John D’Agostini of El Dorado County, California, famously kicked a federal agency out of his county.

“The U.S. Forest Service, after many attempts and given many opportunities, has failed to meet that standard.”

The sheriff has sent a letter to the US Forestry Service stating officers will no longer be able to enforce state law in his county.

“The U.S. Forest Service, after many attempts and given many opportunities, has failed to meet that standard.”

CBS 13 in Sacramento contacted a law professor to ask him if the sheriff’s actions are legal.

“Looks to me as though the sheriff can do this,” he said. “They don’t have state powers in the first place, but essentially the sheriff can deputize individuals to have authority in his or her jurisdiction.”

Fact: federal agencies do not have state powers. Due to the Constitution’s structure of dual sovereignty, the feds have no authority to enforce state laws. Furthermore, states cannot be compelled to enforce federal laws. (source)

So does that mean that Dillon’s Rule does or does not apply to county sheriffs? It’s complicated.

This Comment argues that Dillon’s Rule, a doctrine which limits the authority of cities, towns, and other localities to act unilaterally without authorization from the state legislature, creates a barrier to the enforcement of the 287(g) agreements currently in place between sheriffs’ offices and the federal government. Specifically, Dillon’s Rule precludes sheriffs from entering 287(g) agreements without authorization from the state legislature, rendering these agreements invalid in most cases. Accordingly, when an individual is detained or otherwise deprived of liberty or due process under an invalid 287(g) agreement, constitutional protections should apply. (source)

Wouldn’t depriving gun owners of their Second Amendment rights fall under the category of something constitutionally protected?

AG Herring’s statement contradicts a 2014 opinion.

Attorney General Herring’s current opinion seems politically biased since he has previously rendered more than one opinion at odds with this statement. House Majority Leader C. Todd Gilbert (R) said:

“Attorney General Herring’s opinion is interesting, as it directly contradicts his own statements and actions regarding the supremacy of state law over the preferences of the officials who must enforce them,” Gilbert states in a news release. “In 2014, Herring declined to defend Virginia law in state court, despite a statutory duty to do so.”

Gilbert adds that Herring told the Richmond Times-Dispatch: “…If I think the laws are adopted and constitutional, (then) I will defend them…”

“His opinion today notes that ‘it has long been the indisputable and clear function of the courts … to pass upon the constitutionality of legislative acts,’” Gilbert states. “This not only conflicts with his previous statement about his own conduct, but also the position of a number of Democratic commonwealth’s attorneys regarding (the) prosecution of marijuana possession. 

“I look forward to the Attorney General following up with the Commonwealth’s Attorneys and Commonwealth’s Attorneys-elect in Arlington, Fairfax, Loudoun, Portsmouth, and Norfolk about the supremacy of state law over the policy preferences of local elected officials,” Gilbert adds. (source)

Gilbert also provided another example of inconsistency.

Todd Gilbert, R-Shenandoah, the current majority leader in the House of Delegates who will serve as minority leader in the next legislative session, issued a statement Friday afternoon drawing attention to what he sees as a contradiction between the sanctuaries opinion and Herring’s previous decision to not defend Virginia’s ban on same-sex marriages when Herring concluded the prohibition was unconstitutional, despite what Gilbert argues was a statutory requirement to do so. (source)

That certainly does seem inconsistent with a “rule of strict construction.”

Virginians are unlikely to back down over the AG’s opinion.

Virginians are outraged at the prospective new laws and many gun owners are openly defiant. Counties, cities, and municipalities across the state are decrying the unconstitutional new laws and they are getting organized.

When gun owners were threatened with the National Guard to enforce compliance, it only seemed to accelerate the Second Amendment Sanctuary movement.  One county officially established a militia and more sure to follow, either officially or unofficially.

This is a battle of wills that’s being watched closely around the country. Where Virginia goes, the nation will follow, whether that’s compliance or outright refusal.

Gun control advocates may have chosen the wrong state as a testing ground. The state government seems to have underestimated the unflinching resolve of rural residents. So far, despite the state government’s threats and posturing, Virginians seem unbowed and gun owners across the nation are supporting them.