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Virginia AG Herring: ‘Second Amendment sanctuary’ proclamations have no force

Virginia Attorney General Mark R. Herring (D) in May. (H. Darr Beiser for The Washington Post)

RICHMOND — Virginia Attorney General Mark R. Herring issued an opinion Friday that there is no legal weight to the "Second Amendment sanctuary" resolutions being passed in localities around the state in reaction to potential new gun-control laws.

If the General Assembly passes new gun restrictions, “they will be enforced, and they will be followed,” Herring (D) said in announcing the opinion. “These resolutions have no legal force, and they’re just part of an effort by the gun lobby to stoke fear.”

Gun rights advocates say more than 110 Virginia localities have passed some form of the resolutions, which say that local agencies will not enforce any gun restrictions they deem to be unconstitutional.

Many advocates call the proclamations a symbolic way to speak up for rural values. But as the movement has gathered momentum, some communities have talked of forming a militia and actively resisting the state’s authority.

The sanctuary phenomenon began last year in the western United States. It ignited in Virginia after the Nov. 5 elections, when Democrats won majorities in the House of Delegates and the state Senate and pledged to pass gun laws Republicans have blocked for years.

Gov. Ralph Northam (D) has called for eight gun-restricting measures, including universal background checks, banning assault-style weapons, requiring owners to report lost or stolen guns, and a “red flag” law allowing authorities to temporarily seize firearms from someone deemed a threat.

Herring’s opinion, issued in response to a request from Del. Jerrauld C. “Jay” Jones (D-Norfolk), says that “the scale of the gun violence epidemic is staggering; over 10,000 Virginians have been killed by gun violence since 2007.” A gunman killed 12 people at a municipal building in Virginia Beach on May 31.

Herring noted that the state constitution establishes that all localities are subject to the authority of the General Assembly and that Virginia’s status as a “Dillon rule” state means localities have only the power specifically granted to them by the legislature.

“Neither local governments nor local constitutional officers have the authority to declare state statutes unconstitutional or decline to follow them on that basis,” Herring writes.

He adds that “localities and local constitutional officers cannot nullify state laws and must comply with gun violence prevention measures that the General Assembly may enact.”

House Majority Leader Todd Gilbert (R-Shenandoah) said Herring’s opinion contradicts his stance from 2014, when the attorney general declined to defend the state’s ban on same-sex marriage because he considered it unconstitutional. That was 18 months before the Supreme Court struck down such bans nationally.

“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,” Gilbert’s statement said. “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.’ ”

Northam said in a recent interview that he hopes various stakeholders will sit down and find areas of agreement to help reduce gun violence. “I’m confident the pieces of legislation we’re proposing . . . are constitutional,” Northam said. “They will save lives and make Virginia safer, and so I’m confident that our law enforcement agencies will enforce constitutional laws.”

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