Following the American Revolution but before the U.S. Constitution was adopted, a group in the trans-Appalachian area claimed by North Carolina (now Tennessee) felt neglected by its parent state. The members continued their revolutionary road by seceding from North Carolina and forming the State of Franklin.
The Congress had no mechanism to deal with this development under the Articles of Confederation. North Carolina was livid, but before anyone could draw a line in the sand and challenge the other side to a shootout, a settlement was reached. This incident may have inspired part of the U.S. Constitution.
A county in Mississippi, Jones County, did not formally secede in the Civil War period but rather resisted the Confederate government.
According to the U.S. Constitution, Article IV, Section 3, “…no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more states, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.” The only state so formed was West Virginia in 1863; Virginia did not appear to contest the new state, as it was, at the time, occupied with its own secession from the Union.
A county in Mississippi, Jones County, did not formally secede in the Civil War period but rather resisted the Confederate government. The county did not have the military strength or access to Union forces to enable them to openly defy the Confederates. Today, it remains a part of Mississippi.
More recently, the state of Virginia has passed a number of anti-gun-rights laws, and some residents have responded by declaring their counties “sanctuary counties” for the purpose of protection of local gun rights. These sanctuaries seem to be inspired by cities declaring themselves “sanctuary cities” for the purpose of federal immigration laws. Under the cities’ theory, they can continue to receive money for federal crime-control efforts but refuse to cooperate in federal immigration efforts. Historically, this has not been a successful argument. An entity accepting federal funds for any reason is subject to federal regulation — right down to its coffee fund.
With Attorney General Bill Barr coming down on immigration-inspired sanctuary cities, this leaves the sanctuary county movement on shaky legal ground. The federal government has not drawn a line in the sand and enforced it. But this is an election year, and the government has enough crises to deal with.
Sanctuary counties do not completely secede from the state — only from that state’s restrictions on gun rights. The offending state could continue other activities, such as collecting taxes and regulating commerce. But the state could not use county law enforcement to arrest or imprison people for violation of state gun laws.
Certain Virginia counties have been invited to join West Virginia, a reversal of the Civil War actions. This would be a violation of the U.S. Constitution, and this time around Virginia would be expected to appear and object to the arrangement.
Who’s Executing It?
The Virginia Constitution provides for the powers and organization of county government at Article VII:
CONSTITUTION OF VIRGINIA — Article VII.
Section 2. Organization and government.
The General Assembly shall provide by general law for the organization, government, powers, change of boundaries, consolidation, and dissolution of counties, cities, towns, and regional governments…
The General Assembly may also provide by special act for the organization, government, and powers of any county, city, town, or regional government, including such powers of legislation, taxation, and assessment as the General Assembly may determine…
Section 3. Powers.
The General Assembly may provide by general law or special act that any county, city, town, or other unit of government may exercise any of its powers or perform any of its functions and may participate in the financing thereof jointly or in cooperation with the Commonwealth or any other unit of government within or without the Commonwealth. The General Assembly may provide by general law or special act for transfer to or sharing with a regional government of any services, functions, and related facilities of any county, city, town, or other unit of government within the boundaries of such regional government.
These provisions demonstrate that the Virginia Legislature may remove powers of county government or require any action. The trick is enforcement; if the capital says, “do thus” and the county government replies “no,” what can force them to obey?
Two county officials are key to preventing oppressive gun laws from being enforced. First is the sheriff, the chief law enforcement officer in the county. If he or she refuses to enforce a law, it would be difficult for any city in the county to do so. If he or she refused to accept prisoners in the county jail on charges of owning AR-15s, the city would have to find some facility that would take them. Other counties do not have a budget for extra prisoners, and such a county would have to find an entity to pay for their stay.
The law requires that charges be brought in the county where the crime occurred, and the county prosecutor is the chief legal officer of the county. Charges will not be presented to the court unless he or she does so. The prosecutor also has absolute power to dismiss charges, regardless of evidence.
Stubborn people have filled these jobs, but there are higher authorities with higher powers. The quickest way for them to assert authority is to file a petition in mandamus, which is a court order to a public official to perform a non-discretionary act. It can be filed by a higher public official or a private citizen. There are some technicalities, but the result is a court order that is contempt of court to defy.
If the sheriff defies a court order, who will arrest him or her? The penalty could, of course, be monetary. It can be easier to reach a person’s assets than the person. Once pay is garnished and assets seized, these two officials may reconsider their devotion to the cause.
The attorney general can usually be relied upon to tell the governor that the law is whatever he or she wants it to be. It is an elected position.
Then there is force. The prosecutor may be the chief legal officer of the county, but the governor has an attorney general who is the chief legal officer of the state. The attorney general can usually be relied upon to tell the governor that the law is whatever he or she wants it to be. It is an elected position. The attorney general may think for himself or herself in opposition to the governor, but this cannot be relied upon.
The governor has his or her own chief law enforcement officer in the commander of the state police or highway patrol. These badges have statewide jurisdiction and are not confined to roads. Also not confined to roads is the National Guard, of which the governor is Commander in Chief (unless it is federalized).
Citizens of the sanctuary county may back up their local government, which has the makings of a nice little civil war. Those with knowledge of the last civil war do not look forward to such a development. Perhaps this is why the governor has not attempted to force the issue. This is an election year, and the parties may expect to see a political advantage develop. This is possible.
Federal troops are not allowed to interfere, as the Reconstruction-era Posse Comitatus Act prohibits the use of federal troops to enforce state or federal laws. In theory, a friendly president could federalize National Guard troops and remove the governor’s ability to use them against sanctuary counties.
A Solution? Vote
Many have blamed gun-owing Virginians for not organizing and “getting out the vote” in 2018. This left them with a Legislature and a governor who targeted their rights.
The next election may improve the governor’s position, though this is no time to place blame for something that happened in the previous election. It is time to improve the existing sanctuary county organization and elect state representatives who will protect the rights of gun owners in the next election and the next and the next.
A number of individuals have proclaimed themselves “militias” or “sovereign citizens” and even more bizarre entities on the theory this would exempt them from inconvenient laws. They have also often gone to prison insisting that the government could not imprison them. They have sat in prison cells denying the reality that put them there. I have not found any case in which such a person was victorious, and I see no reason to believe that declaring a sanctuary county would have a better result — at least by itself.
Declaring a sanctuary county does, however, create a problem for an anti-gun-rights state government. It is at least a speed bump, but by itself it will not stop oppressive laws. That will require political organization to remove the usual suspects from state government and replace them with candidates who respect our rights.
Kevin L. Jamison is an attorney in the Kansas City, Missouri, area concentrating in the area of weapons and self-defense.
Please send questions to Kevin L. Jamison at 2614 NE 56th Terrace, Gladstone, Missouri 64119-2311 or email [email protected]. Individual answers are not usually possible but may be addressed in future columns.
This information is for legal information purposes and does not constitute legal advice. For specific questions you should consult a qualified attorney.