On December 20, 2019, Attorney General Mark Herring issued a formal legal opinion stating (1) that Second Amendment Sanctuary Resolutions (SASRs) have “no legal effect,” (2) that local government officials “must comply with gun violence prevention measures that the General Assembly (GA) may enact,” and (3) that “neither local governments nor local constitutional officers have the authority to declare state statutes unconstitutional or decline to follow them on that basis.” These three statements fly not only in the face of the U.S. Constitution and the Virginia Constitution but also in face of Mark Herring’s own previous legal opinions.
The Virginia Civil Defense League (VCDL) and the Gun Owners of America, Inc. (GOA), which is based in Springfield, VA, issued a joint twelve-page statement pointing out the utter hypocrisy of Herring’s opinion, often using Herring’s own earlier legal opinions. SASRs do have “legal effect.” They indicate the intent of the 94 cities and counties (of Virginia’s 133 cities and counties) plus 17 incorporated towns (as of this writing) that have adopted them, and they represent an exercise in the right of the People to petition their government not to abuse the power that was given to the government by the People. With the SASRs, these local government entities have informed the GA that any attempt by the GA to forcibly disarm Virginians, to register their weapons (as a precursor to confiscating them), or otherwise to turn law-abiding Virginians into felons, would be ultra vires acts, void, and thus not law at all. The SASRs are not an effort to create conflict with the GA and the Governor, but rather to avoid it. But should the state government act lawlessly, then local officials and the people they represent will not cooperate and may actively resist that government lawlessness.
Herring’s second point is wrong because no constitutional or statutory provision requires people to comply with an unconstitutional state law. Herring’s statement that since the GA can create and remove counties then “all local authority is subject to the control of the General Assembly” is utter nonsense. The Virginia Constitution overrides the GA, and our Constitution (not the GA) establishes county boards and county sheriffs among other constitutionally mandated offices. In fact, Article I, Section 2 notes that “power is vested in, and consequently derived from, the people, that magistrates are their trustees and servants, and at all times amenable to them.” This makes the very Republican statement that power flows from the people up, not from the big wigs down. The VCDL/GOA, in their response to Herring’s ill-advised legal opinion, reiterate that local governments’ enactment of SASRs shows that “county boards, and sheriffs, are acting ‘subject to the control’ of the People as expressed in the Constitution, not the General Assembly.” Herring’s assertion that “when a statute and an ordinance conflict, the statute must prevail” does not apply when the statue is in conflict with the Virginia and U.S. Constitutions. County boards and city councils owe no allegiance to unconstitutional state laws, but rather to the Constitution and to the People, who are the authorities who gave the GA any power they might have in the first place.
Herring himself makes a lie of his third point because immediately after he was first inaugurated in 2014, Herring 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 two, an elected official has the power to take affirmative steps to block enforcement of an unconstitutional statute. That is exactly what each of the counties, cities, and towns is doing when they pass a SASR.
Even the GA 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 GA passed HB 1160, which prohibited Virginia from assisting the federal government in the unlawful detention of U.S. citizens under the federal 2012 National Defense Authorization Act. Thus, the GA 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 GA.
It is painfully obvious that Herring’s legal opinion – not to mention his grandiose inclination to overrule the stated will of the majority of Virginians – is based far more on his personal opinion than on the laws of the Commonwealth. And that is a terrible way to govern a country or a Commonwealth.