Ethan Kessler: Illegitimate resistance

Monday, February 18, 2019 - 4:00pm

The arrangement of powers between lawmakers and law enforcement can seem very simple in the abstract. Lawmakers make the laws, and law enforcement enforces those laws. In practice, this relationship can be a bit more complicated. Politics and personal convictions muddy up an otherwise clear delineation of authority.  

In Washington state, authority has been muddied up beyond mere complication. Sheriffs in a dozen counties have committed to stop enforcing the expansive gun control law I-1639, passed in November by state referendum, at least until courts have decided on its constitutionality. Genuine, yet still illegitimate, the Washington sheriffs’ principled resistance illustrates a larger, troubling ideology of extremist Second Amendment interpretation.

What should first be made clear is that the sheriffs in question are not unaware of the moral dilemma posed by their actions. On one hand, there is the duty of law enforcement to carry out orders as they are given. This expectation is what enables us, as citizens, to trust that laws are worth the paper they are printed on. As Attorney General Robert Kennedy pointedly remarked to white Georgians in 1961, on the subject of federally mandated school desegregation, “… (M)y belief does not matter – it is the law. Some of you may believe the decision was wrong. That does not matter. It is the law.” Washington state’s current attorney general, Bob Ferguson, has similarly reminded the sheriffs that “as public officers, (their) duty is to abide by the will of the people (they) serve, and implement and enforce the laws they adopt.”

On the other hand, society does well to ensure that law enforcement still maintains its oath to high principle. It is reassuring to have our laws enforced by real human beings, and not by blindly loyal androids devoid of moral conviction. Whichever of these conflicting commitments the 12 sheriffs prioritize, in this case, is aptly laid out by Grant County Sheriff Tom Jones: “I swore an oath to defend our citizens and their constitutionally protected rights. I do not believe the popular vote overrules that.”

In essence, the actions of the sheriffs then constitute a rule departure, or the deliberate decision by authorities to not properly discharge their duties as their office requires. Are such acts inherently wrong? Recent American history would have us lean toward the affirmative. From Southern whites who resisted federal civil rights legislation to Rowan County Clerk Kim Davis and her infamous refusal to issue marriage licenses for gay couples, public officials supplanting professional loyalty with personal judgment have generally been overruled swiftly and without lasting repercussions.

Yet, the protestors do not likely view themselves in such light. To them, such dissidence is for the ultimate good of the people, whose liberty is secured by strong gun rights and thereby threatened by the referendum. Intelligent individuals could debate endlessly on the merits of this abrogation of traditional legislative power. In this case, however, one needs only to look at the sheriffs’ purported justifications for dissidence to see that they are, indeed, wrong to disobey the Washington referendum.

By reasonable standards, the actual policy measures put forth by I-1639 are wholly acceptable. The law raises the minimum age to purchase semi-automatic rifles from 18 to 21, and requires those purchasing them take a training course, pass an enhanced background check and wait 10 business days before their purchased rifle can be delivered to them. What is at all unreasonable about a state requiring its residents to be of responsible age and capacity to own guns? How about a state ensuring guns are not sold to those with dangerous pasts or in unsound states of mind?

To those propositions, a truly reasonable gun enthusiast would not balk. Guns are powerful implements, so requiring gun owners to prove they are generally responsible and capable is far from the radical imposition these sheriffs have decried it as. Yet preventive measures such as these are often lamented by Second Amendment extremists as futile — as one of the participatory dissidents, Sheriff Bob Songer of Klickitat County fatalistically explains, “Bad guys are going to have guns regardless.” Songer may find it shocking that banks still enclose their cash in vaults, a truly useless protection against robbers who could seemingly “get in regardless.”

In addition to putting forth entirely reasonable public safety measures, I-1639 successfully avoids imposing undue burdens on responsible gun owners. It does not categorically ban any type of firearm, and thereby protects the existing gun protections of all Washingtonians above the age of 21. Those who would invoke traditional definitions of the American militia in decrying this age increase would be hard-pressed to explain why a militia comprised of Americans aged 17 and up is impinged by gun purchase limits set at 21 years of age, but not at 18 years of age (as is the case in most of the country). And, even though the law prevents 18 to 21-year-old Washingtonians from owning semiautomatic rifles, a host of other firearms are still purchasable for hunting or home defense.

Yet it is perhaps in one of I-1639’s other provisions that the core of the problem is best illuminated. The law, in addition to these measures, establishes penalties for those adults careless enough to leave their firearm in the reach of children and burglars. Here, the state is attempting to reduce the risk that irresponsible gun owners leave their weapons vulnerable to theft or improper discharge. By imposing regulations for safe storage of firearms, it is protecting both the property and loved ones of firearm owners who would otherwise not know better. Likewise, several of Washington’s sheriffs appear to be protecting their citizens from what they believe to be misguided instincts. These sheriffs’ views on state authority, however, provide shaky ground for their subversive stand. That these views are highly problematic and faulted make them even more inadequate. Washington Attorney General Bob Ferguson is right to call his officers back to attention.

Ethan Kessler can be reached at ethankes@umich.edu.