December 26, 2019 To the Members of the Virginia General Assembly To Constitutional Officers of the Commonwealth To the People of Virginia RESPONSE TO VIRGINIA ATTORNEY GENERAL’S ADVISORY OPINION REGARDING SECOND AMENDMENT SANCTUARY RESOLUTIONS Executive Summary Virginia Attorney General (“AG”) Mark Herring was asked to issue a formal legal opinion regarding Second Amendment Sanctuary Resolutions being adopted by counties, cities, and towns across Virginia. AG Herring’s official advisory opinion (“Herring AO”) was issued on December20, 2019. In it, AG Herring argues that Second Amendment sanctuary resolutions (i) have “no legal effect,” (ii) local government officials “must comply with gun violence prevention measures that the General Assembly may enact,” and (iii) “neither local governments nor local constitutional officers have the authority to declare state statutes unconstitutional or decline to follow them on that basis.” Each of these contentions is untrue. Based on the Herring AO, and various statements reported in the press, it is apparent that AG Herring and Governor Ralph Northam believe that Virginia localities have a duty to actively assist the Commonwealth in the enforcement of any law enacted by the General Assembly. These officials appear to believe that such blind obedience is required irrespective of whether a law violates the U.S. Constitution, the Virginia Constitution, or is manifestly destructive of the pre-existing rights of the People of Virginia. This radical view is demonstrably false, and ignores the significance of the fact that local officials are required by law to take an oath to support the federal and state constitutions above the laws enacted by the General Assembly. Moreover, neither Attorney General Herring nor Governor Northam can credibly demand that local governments must implement every Act of the General Assembly, because that view directly contradicts the positions they have taken in the past. Indeed, on three recent occasions,AG Herring and Governor Northam have taken exactly the opposite legal position, with respect to: (i) the defense of the Virginia Marriage Amendment to the Virginia Constitution; (ii) the General Assembly’s refusal to assist the federal government with the arrest and detention of 2civilians as authorized by the National Defense Appropriations Act of 2012; and (iii) the right of localities in Virginia to become sanctuary cities with respect to the enforcement of federal immigration laws.Finally, the assertion that lesser magistrates owe slavish obedience to abusive higher authorities was never the view of the Founding Fathers, particularly those from the Commonwealth of Virginia. Had the English barons embraced this view, there might never have been a confrontation with King John at Runnymede, leading to the protections provided by Magna Carta. Had our nation’s founders embraced this view, Virginia might still be a colony of England. Truly, this view is contrary to the most basic principles which underlay our form of government,is anti-Biblical, and is profoundly abusive of the pre-existing and inalienable rights of the People of Virginia.
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