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Virginia AG issues opinion finding that 2nd Amendment sanctuaries have 'no legal effect'

Attorney General Mark Herring speaking to an audience on April 17, 2019.
Attorney General Mark Herring speaking to an audience on April 17, 2019.(WHSV)
Published: Dec. 20, 2019 at 2:31 PM EST
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Virginia Attorney General Mark Herring has issued

concluding that the resolutions passed by dozens of localities across Virginia which declare themselves "Second Amendment sanctuaries" have “no legal effect.”

Herring concluded that localities and local constitutional officers “cannot nullify state laws” and must follow any gun violence prevention measures passed by the General Assembly.

Background on Second Amendment sanctuaries

In the month since Democrats

for the first time in decades, more than 60 localities across the commonwealth

declaring themselves Second Amendment sanctuaries.

The movement, a conservative spin on 'sanctuary cities,' which vowed not to work with ICE to deport undocumented immigrants, took off quickly in areas that voted along conservative lines in the recent elections, where many people believe that their constitutional rights may be threatened under a Democratic-controlled legislature.

Essentially, the resolutions stated that their specific county, town, or city declared their intent that public tax money in their jurisdiction not be used for any measures that violate the Second Amendment.

Most local officials who have passed such resolutions have fully acknowledged that the resolutions never had any legal power – they said, as the measures were passed, that they were intended to put political pressure on lawmakers in Richmond who will have to consider proposed gun laws in 2020.

Proposed gun bills

A range of bills have been filed for Virginia's 2020 session, including

, which would make it a Class 1 misdemeanor "to import, sell, barter, or transfer any firearm magazine designed to hold more than 10 rounds of ammunition" and expand the definition of "assault firearm" under Virginia law, prohibiting anyone from possessing a gun that meets the new definition of "assault firearm." Possessing or transporting a gun under the new definition of an "assault firearm" would become a Class 6 felony.

Senate Bill 18 would raise the age for purchasing a firearm in Virginia to 21 and require mandatory background checks for any transfer of firearms, including private sales, instructing State Police to establish a process for people to obtain the background checks.

Other bills would put red flag laws into place.

To counter possible gun control laws, the concept of becoming a 'Second Amendment sanctuary' means that a county expresses its intent that its public funds not be used to restrict Second Amendment rights.

According to the resolution passed in Rockingham County, for instance, the Board of Supervisors "expresses its continuing intent to uphold, support and defend all rights protected and guaranteed by the Constitution of the Commonwealth of Virginia and the Constitution of the United States."

Herring's opinion

Herring issued this statement:

“When the General Assembly passes new gun safety laws, they will be enforced, and they will be followed. These resolutions have no legal force, and they’re just part of an effort by the gun lobby to stoke fear,” said Attorney General Herring. “What we’re talking about are the kind of commonsense gun safety laws that Virginians voted for just a few weeks ago, like universal background checks to make sure that dangerous people aren’t buying guns. Too many Virginians have lost their lives to guns and it is well past time that we enact these gun safety measures that will save lives and make our communities safer.”

Herring's full opinion can be found

.

Some key lines from Herring's opinion:

• “…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.”

• “By their own terms, these resolutions have no legal effect.”

• “…all localities, local constitutional officers, and other local officials are obligated to follow duly enacted state laws…both the Virginia Constitution and the Code of Virginia specifically establish the supremacy of laws passed by the General Assembly over local ordinances and policies…Nor have localities been delegated any authority – either express or implied – to exempt themselves (or anyone else) from gun violence prevention statutes.”

• “…neither local governments nor local constitutional officers have the authority to declare state statutes unconstitutional or decline to follow them on that basis.”

Republican response

Outgoing House Majority Leader Todd Gilbert (R-Shenandoah) issued the following statement in response to Mark Herring's opinion:

"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. "In 2014, Herring declined to defend Virginia law in state court, despite a statutory duty to do so. He 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." 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 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."
Local ties

In the Shenandoah Valley,

,

,

, and

have all passed resolutions to become Second Amendment sanctuaries.

The towns of Grottoes, Stanley, and Strasburg have also passed their own resolutions doing the same.

Special hearings on the topic each drew thousands of people.

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