We’ve been hearing a lot about “Second Amendment sanctuaries” lately. But what, precisely, are they? And do they have any legal significance? To answer these questions, we need a little constitutional context.
Look around. Wherever you are in these United States, you are probably subject to the laws of at least three different governments: 1) the national government; 2) your state government; 3) your county government. If you happen to live in a town or city, add a fourth government to your list. Oh, and don’t forget your local school board and other governing bodies, such as water and sewage districts. That’s why you get all those tax bills each year.
Constitutional scholars have a word for this multi-layered governmental system. They call it “federalism,” at least with regard to the national and state governments. James Madison baked federalism into the first seven articles of the United States Constitution in 1787, partly out of practicality — the original 13 states weren’t going to abolish themselves — and partly as a way to disperse political power over a wide geographic area.
While federalism is designed to prevent any one entity from grabbing too much power, it also creates a bit of complexity and friction. Madison tried to mediate the inevitable conflicts by giving the national government only specific enumerated powers, but making it supreme within its limited realm. That’s why Article VI of the Constitution provides:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
Article VI is pretty clear: The Feds are supreme. Indeed, the “Supremacy Clause,” as it’s commonly known, makes it seem like there is no such thing as “states’ rights.” But not so fast. While the national government has only specific enumerated powers, the states have all governmental powers, limited only by the Constitution. In other words, states can do pretty much anything they want to do, so long as it doesn’t conflict with national law.
Consequently, when it comes to how a state treats its own counties and cities and towns, well, a state can be as “supreme” as it wishes. And that’s what most states — including the Commonwealth of Virginia — have chosen to do. They follow something called the “Dillon Rule,” which provides that local governments have only those powers specifically granted by the state. Any ambiguity in the law is construed against the local government. In Virginia, a local government is effectively a subordinate branch of the state government.
Which brings us to the current controversy. A number of Virginia towns and cities and counties have recently passed resolutions declaring themselves “Second Amendment sanctuaries.” Most of these resolutions are somewhat vague, simply asserting support for “gun rights,” and opposition to “gun control.” Well, okay. Those are political statements, not laws.
But can local officials go further? Can they resist the gun control statutes that the General Assembly may soon enact? In case you haven’t noticed, Democrats gained majorities in both houses of the General Assembly last November — for the first time in over 20 years — partly because of their support for “commonsense” gun control.
If the General Assembly passes a new gun control statute, the Dillon Rule presents a real problem for local officials who disagree. As noted in a recent Advisory Opinion by Virginia Attorney General Mark Herring:
Virginia law currently provides that localities are prohibited from “adopt[ing] or enforc[ing] any ordinance, resolution or motion … governing the purchase, possession, transfer, ownership, carrying, storage or transporting of firearms, ammunition, or components or combination thereof other than those expressly authorized by statute.”
That’s pretty clear. Moreover, every state official takes an oath stating:
I do solemnly swear (or affirm) that I will support the Constitution of the United States, and the Constitution of the Commonwealth of Virginia, and that I will faithfully and impartially discharge all the duties incumbent upon me . . . according to the best of my ability, (so help me God).
So a local official would have to think long and hard before acting in opposition to state law.
The Virginia Citizens Defense League, one of the more ardent gun rights groups in the Commonwealth, has acknowledged as much. In a December 20, 2019, article in The Roanoke Times, VCDL leader Philip Van Cleave was quoted, “[n]o resolution can fully protect us from any bad bills that are passed by the General Assembly, hence we must focus on stopping those bills from ever becoming law.”
Van Cleave is right: If gun rights advocates want to prevail in Virginia, they need to convince the General Assembly to do as they wish. They need to go to Richmond and make their case. If a majority of their state representatives agree with them, they will win. If not, well, that’s called representative democracy.