Sanctuary Cities and Nullification Theory

So conservatives who complain the loudest about “sanctuary cities” when it comes to immigration seem to be lining up to support “Second Amendment Sanctuaries” now that Democrats control the General Assembly. Yesterday I saw this first-hand at the Hanover and Westmoreland County Board of Supervisors meetings. Both Boards passed resolutions objecting to gun control laws that has not yet passed the General Assembly on the assumption they will infringe on Second Amendment rights.

I spoke with my Supervisor, W. Canova Peterson, before the meeting and he told me the Hanover resolution would not include the word “sanctuary” and he turned out to be correct, though during the meeting Supervisor Bucky Stanley asked why not. Supervisor Wayne Hazzard made a good point in response: that characterizing Hanover County as a gun rights sanctuary might make some citizens think any new Virginia gun regulations would not apply in Hanover. This would not be true, at least until courts adjudicated Constitutionality. As it happens, the Hanover resolution also does not prohibit use of public funds for enforcement of laws that would restrict Second Amendment rights.

The Westmoreland County version does both. So besides making citizens believe its resolution protects them from prosecution for violating laws they don’t like it could also create liability should injury or death result from County refusal to enforce, for example, a Red Flag law.

All of this amounts to a revival of the nullification theory Calhoun came up with when tariffs intended to protect US industry threatened trade relations between southern slave states and European manufacturers and increased the cost of slave agricultural production. Virginia officials revived it to justify massive resistance to school desegregation and more recently a few states claimed the power to nullify the Affordable Care Act and in one case environmental regulations. 

The general idea here is that each individual State retains a sovereign power to determine its own Constitutional rights and obligations. Under this theory States, not courts, have the power to adjudicate the Constitutionality of legislation passed by Congress, at least within their State borders.  In effect, Hanover, Westmoreland, and other Virginia counties that have in some fashion declared themselves the protectors of Second Amendment rights, as well as jurisdictions that have declared themselves immigration sanctuary cities, have claimed this power at the State and County level.

To be sure, elected officials in places where citizens place a very high value on their gun rights face quite a bit of political pressure to take action on this when asked. Hundreds of people showed up to support these resolutions at both meetings I attended as they have at others, so it does not surprise me that officials in conservative jurisdictions did as their voters demanded. 

These resolutions will have the effect of sending a message to the General Assembly that it needs to craft legislation carefully to gun violence without needlessly restricting Second Amendment rights, though I doubt many will listen unless and until legislative districts are drawn so they’re more competitive. Democratic legislators from very blue districts are also hearing from voters who want something done about gun violence and mass shootings.

In any event, gun rights supporters may find that Democrats have less unity on this issue than they think. Moms Demand Action endorsed me as a “Gunsense Candidate” during my campaign but I would have trouble supporting SB 16 because I find its definition of “assault weapon” flawed. And while I support strict regulations on the security, transfer, and use of powerful weapons I worry about the implications of prohibiting mere possession of weapons many people already own. 

Finally, this isn’t Calhoun’s Nullification Theory, a top-down version elected officials and other elites used to justify rejection of policies that affected their wealth, social status, and control over social institutions. This one comes from and is driven by citizens claiming for themselves the power to declare legislation unconstitutional and refuse to obey them once they have. This is in fact why they so carefully guard their Second Amendment rights – so they can protect this power at the point of a gun if necessary. The people I met at these meetings believe gun control is the first act of tyrannical government, and Molon labe is not just a bumper sticker for them. Virginia’s next General Assembly session could get very interesting.

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