Virginia County Approves "Second Amendment Preservation Ordinance"

As Virginia Attorney General Mark Herring warns counties that their Second Amendment Sanctuary resolutions have “no legal effect” and that they must enforce any new gun control laws, one Virginia county is doubling down by approving an actual ordinance to prevent unconstitutional gun laws from being enforced within its borders.

Buchanan County has already approved a Second Amendment Sanctuary resolution, but county supervisors also approved the Second Amendment Preservation Ordinance this week, putting a new law on the country’s books that blocks any county funds from being spent to enforce new gun control legislation. From the Bluefield Daily Telegraph:

Buchanan County’s Preservation Ordinance is similar to Tazewell County’s resolution on the reaction to any legislation passed that is deemed unconstitutional, including a ban on spending local funds and resources for enforcement, as well as the intent to go through the court system if needed.

Carroll Branham, chair of the county’s board of supervisors, said residents are supportive of the resolutions, as they have been in most of the other counties, cities and towns around the state.

Branham said he thinks much of the talk about passing new gun laws is a “bunch of rhetoric” and done for political purposes, but he wants to be prepared just in case.

“It is scary what they could do,” he said of legislators, adding that he is not happy with their agenda on guns. “We will continue to work together to be ready to deal with the situation.”

Branham said he expects any laws passed that are questionable would end up in court quickly.

“That we can count on, that the courts will do what they constitutionally should do,” he said. “You can’t go against Second Amendment rights.”

Unfortunately, the 4th U.S. Circuit Court of Appeals issued a decision back in 2017 that gun control advocates are going to use to try and portray their semi-automatic gun ban as constitutional. In a case challenging Maryland’s ban on so-called “assault weapons,” the court declared that the most commonly produced rifle in the United States isn’t protected by the Second Amendment.

The 4th Circuit held that Maryland’s ban on military-style assault rifles is constitutional regardless of the standard of scrutiny because the Second Amendment does not give civilians a right to own such weapons.

“We are convinced that the banned assault weapons and large-capacity magazines are among those arms that are ‘like’ ‘M-16 rifles’ — ‘weapons that are most useful in military service’ — which the Heller Court singled out as being beyond the Second Amendment’s reach,” the 4th Circuit said. “Put simply, we have no power to extend Second Amendment protection to the weapons of war that the Heller decision explicitly excluded from such coverage.”

The dissent, in an opinion by Judge William Traxler, complained that the majority “has gone to greater lengths than any other court to eviscerate the constitutionally guaranteed right to keep and bear arms.” (The majority responded that although its holding on the scope of the Second Amendment “may seem novel in some quarters, it is solidly predicated on the plain language of Heller and was raised and argued by the state in both the district court proceedings and this appeal.”) Judge Traxler said that millions of law-abiding Americans own semi-automatic weapons for lawful purposes, including the defense of their homes, so the guns are squarely within the Second Amendment. The judge – who had written the Kolbe panel opinion now replaced by the en banc decision – also reiterated his conclusion that Maryland’s law is subject to strict scrutiny.

The U.S. Supreme Court declined to take up the case, meaning that the 4th Circuit opinion has the force of law in Virginia. That won’t stop a lawsuit from being filed challenging any ban on semi-automatic firearms signed by Governor Ralph Northam, but it does make relief from the lower courts less likely. A good decision from SCOTUS in the NYC gun case would be a tremendous help for those intent on challenging Virginia’s impending gun control laws, but for now Second Amendment supporters in Virginia are going to face an uphill battle in their attempts to use the courts to block Northam’s gun grab.

The decision by Buchanan and Tazewell counties to include language about “ordering the militia” may provide a new legal avenue to pursue, however. Both counties claim that under Virginia’s constitution, the “ordering” of the militia is done at the county level, and the counties are arguing that their ordering of the militia includes the ability to own and train with firearms like the AR-15. It’s a new argument, and one that wasn’t addressed by the 4th Circuit in the Kolbe case out of Maryland, so it should provide Virginians with a way to bring the issue back before the courts for consideration.



Oct 27, 2021 12:30 PM ET