Virginia’s Second Amendment Sanctuaries: Do They Have Legal Effect?

37 Pages Posted: 5 Dec 2020

Date Written: November 22, 2020

Abstract

In response to draconian gun-ban bills pending in the General Assembly, in 2019-20 nearly all Virginia counties and many cities declared themselves “Second Amendment sanctuaries” or otherwise passed resolutions opposing infringement on the right to keep and bear arms. The Virginia Attorney General opined that this response has “no legal effect” and that any such laws must be enforced and obeyed without question.

However, the sanctuary resolutions do constitute exercise of the right to petition. Moreover, local officials have an obligation not to enforce laws of questionable constitutionality that have not been upheld by the courts. This Article argues that the proposed gun bans are unconstitutional infringements on the right to keep and bear arms. That is clear from the constitutional text, the original understanding, and decisions of the U.S. Supreme Court and the Virginia courts.

Moreover, local officials have authority to apply scarce resources to combat violent crime and other crimes that have actual victims. Prosecutorial discretion is basic to our criminal justice system. Some Commonwealth’s Attorneys have a policy of not prosecuting marijuana crimes. The Attorney General himself repudiated a provision of the Virginia Constitution with which he disagreed. Enforcement of gun laws is also limited by due process rights and the prohibition on unreasonable searches and seizures.

The firearm prohibitions that passed or are still pending in Virginia criminalize previously-lawful conduct rather than focus on violent criminals. In other jurisdictions where firearms have been banned or required to be registered, citizens have responded with low rates of compliance. Enactment of mala prohibita gun crimes makes criminals out of law-abiding citizens while distracting from actual crime.

Keywords: Second Amendment Sanctuaries, Right to Bear Arms, Virginia gun prohibitions, Oath to support Constitution, Non-enforcement of Second Amendment infringements

Suggested Citation

Halbrook, Stephen P., Virginia’s Second Amendment Sanctuaries: Do They Have Legal Effect? (November 22, 2020). Available at SSRN: https://ssrn.com/abstract=3735216 or http://dx.doi.org/10.2139/ssrn.3735216

Stephen P. Halbrook (Contact Author)

Independent Institute ( email )

100 Swan Way
Oakland, CA 94621
United States

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