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Attorney General Mark Herring, in advisory opinion, says Second Amendment resolutions have 'no legal effect'

Attorney General Mark Herring, in advisory opinion, says Second Amendment resolutions have 'no legal effect'


The resolutions local governments have passed in more than 100 localities declaring themselves Second Amendment sanctuaries have “no legal effect,” Virginia Attorney General Mark Herring wrote in an advisory opinion.

Herring, a Democrat, said Friday the localities and local constitutional officers “cannot nullify state laws” and must follow the gun laws passed by the General Assembly.

“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,” Herring wrote in his opinion.

Spooked by Democrats taking control of the General Assembly in January and promising to pass gun control measures, thousands of people have urged their local governments to pass Second Amendment sanctuary resolutions. Some Republican lawmakers have vocally supported the movement.

Democrats, who have control of both the House of Delegates and Senate, already have filed several gun control bills ahead of the January legislative session. Proposals include universal background checks, civil penalties for not reporting lost or stolen firearms to police, reinstating the state’s lapsed one-handgun-a-month law and giving localities the ability to prohibit the carrying of firearms in a public space during an event that would require a permit.

Some proposals, such as universal background checks, have broad public support, according to polls. But gun rights advocates have been stepping up now that it appears more likely Democrats will be able to pass the gun control measures they campaigned on this year.

Gun rights advocates have been particularly upset over legislation that would expand the definition of assault firearms and prohibit ownership of one. Gov. Ralph Northam has said he supports an assault weapons ban with a grandfather clause for existing gun owners, who will have to register their weapons before the end of an established grace period.

Herring has been an advocate for passing gun control measures, including a red flag law that would allow courts to temporarily ban people from possessing firearms if there are clear signs that they pose a danger to themselves or others.

“When the General Assembly passes new gun safety laws, they will be enforced, and they will be followed,” Herring said in a statement. “These resolutions have no legal force, and they’re just part of an effort by the gun lobby to stoke fear. 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.”

Del. Todd Gilbert, R-Shenandoah, who will soon transition from House majority to minority leader, said Herring’s opinion is in conflict with his refusal to defend Virginia’s same-sex marriage ban in 2014 before it was officially struck down because he deemed it unconstitutional.

“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,” Gilbert said in a statement, referencing commonwealth’s attorneys not prosecuting marijuana possession cases.

The opinion came at the request of Del. Jay Jones, D-Norfolk, who said an opinion would be helpful to localities as they receive requests to join the Second Amendment sanctuary movement.

“The legal precedent we would set by allowing communities to selectively ignore these laws at will is alarming and indicative of the same mindset that nearly 150 years ago led this country to dissolve into a civil war,” Jones wrote to Herring. “Assuredly, if the duly-elected General Assembly passes measures to advance gun safety in the commonwealth, I believe the legislature should be able to do so without actions by localities to undermine its efforts.”

The General Assembly session starts Jan. 8.

The Second Amendment sanctuary movement has highlighted the divide among blue and red localities, the influence of grassroots gun activists and the sense that the gun debate is intractable.

The Virginia Citizens Defense League, an influential gun rights lobbying group, has been key in organizing the push for local governments to identify as Second Amendment sanctuaries. Philip Van Cleave, who leads the group, is working to assemble a large showing of activists on the annual Lobbying Day in Richmond.

“No 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 wrote in an email to activists.

Democrats aren’t backing down. Incoming House Majority Leader Charniele Herring, D-Alexandria, warned elected sheriffs that their localities could lose funding if they refuse to enforce state laws.

“They should tread lightly and carefully on that,” she said earlier this month.

Sen. Bill Stanley, R-Franklin, was shocked U.S. Rep. Donald McEachin suggested to the Washington Examiner that Northam call out the National Guard to enforce gun control laws. Northam’s spokeswoman said the governor does not plan to deploy the National Guard to enforce gun laws.

Stanley was also bothered by incoming Senate Majority Leader Richard Saslaw, D-Fairfax, calling people supporting Second Amendment sanctuaries “delusional.”

“I think you’re delusional, my friend,” Stanley said last week. “You’re not helping when people are standing up for their rights, and you’re calling them ‘delusional.’ ”

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