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‘Constitutional’ and ‘sanctuary’ resolutions have ‘no legal effect,’ AG says

WINDSOR

Isle of Wight County Sheriff James Clarke Jr. and Windsor Police Chief R.D. “Dan” Riddle have both stated that they support the right of citizens to keep and bear arms as guaranteed by the Second Amendment of the U.S. Constitution.

However, each still plans to enforce any new gun laws that are passed during the 2020 General Assembly session, when the new Democratic majority takes office — unless those laws are actually ruled unconstitutional in court. That’s because both law enforcement department heads have taken the position that it is up to the courts, and not local officials, to decide on the constitutionality of laws — a position shared by Virginia Attorney General Mark Herring.

Herring’s office released an official advisory opinion the morning of Friday, Dec. 20, in which Herring stated that any resolutions passed by localities across Virginia declaring themselves exempt from new gun laws have “no legal effect.” His opinion also concluded that local constitutional officers such as sheriffs “cannot nullify state law.”

While Herring’s opinion did not mention any specific bills that have been pre-filed for the 2020 General Assembly session — such as Senate Bill 16 — he did state that, “All actions of the General Assembly are presumed to be constitutional” and that “it has long been the indisputable and clear function of the courts, federal and state, to pass upon the constitutionality of legislative acts.”

Senate Bill 16, which is sponsored by state Sen. Richard Saslaw (D-35), would expand the definition of “assault” firearms and would make the import, sale, transfer, manufacture, purchase, possession or transport of these weapons a Class 6 felony. According to Virginia’s online Legislative Information System, the bill further prohibits a person from carrying in a public place any shotgun with a magazine that will hold more than seven rounds of the longest ammunition for which it is chambered, and makes it a Class 1 misdemeanor to import, sell, barter or transfer any firearm magazine designed to hold more than 10 rounds of ammunition.

The week before Herring issued his opinion — Clarke had pledged via Facebook that his office would “not enforce any laws deemed unconstitutional.” This was on Dec. 12, the same day Isle of Wight’s Board of Supervisors voted unanimously to declare the locality a “Constitutional County” with regard to gun rights. The resolution, however, stopped short of declaring any intent on the part of the Board to ignore or not enforce any new state gun laws, and Clarke then clarified the next day to The Tidewater News that “deemed unconstitutional” had been in reference to “the judicial system.” He further indicated that his office would indeed enforce any and all new gun laws unless they were successfully challenged in court. Riddle echoed Clarke’s comments when The Tidewater News asked if he planned to enforce the proposed gun laws if they are passed.

“Windsor Police officers are given the latitude to exercise discretion every day in the enforcement of the law,” Riddle said. “These resolutions are statements of preference being made by localities but do not allow a locality to avert state laws.”

Riddle did, however, add, “I suspect it would be extremely difficult to enforce the proposed changes to the law, as they appear unconstitutional and would be immediately challenged in the courts. It is important to remember and respect the separation and balance of powers, it will ultimately be up to the courts to decide what laws can pass a constitutional muster.”

When asked for his opinion as to whether Windsor has a gun violence problem, and if he felt any of the proposed laws would be effective in combatting gun violence, Riddle said, “Windsor residents enjoy a safe and secure lifestyle within the town. We have low crime rates and violent crime in our community is almost nonexistent. The new [proposed] laws, as written, would not make our community any safer.”