Ethan Kessler: Threats to the rule of law

Sunday, March 10, 2019 - 4:44pm

Russian author Leo Tolstoy once said, “Wrong does not cease to be wrong because the majority share in it.” This wisdom has obviously been lost on a growing number of counties across the U.S., where localities are declaring themselves Second Amendment sanctuaries and thereby exempting themselves from obeying certain state-level gun control laws. The trend started nearly a month ago in Quay County, New Mexico, where Sheriff Russell Shafer submitted a resolution to affirm his right “to not enforce any unconstitutional firearms law against any citizen.” The Quay County Commission voted unanimously in favor of the resolution.  

In a week, six more New Mexican counties had adopted similar measures, and by last week most of New Mexico’s counties were on board. The growing body of Second Amendment sanctuary counties joins the coalition of sheriffs in Washington state who, in early February, made a similar commitment to not enforce new state-level gun controls. Moreover, the trend has emboldened sheriffs in Colorado, Nevada and Oregon to defy recently passed gun control laws in their respective states as well.

This trend marks a disturbing departure from the Washington sheriffs’ disobedience, which I previously reflected on, in that it demonstrates a widespread appeal for illegitimately seditious conduct before now implausible. In upending the respect for the law crucial to robust governance — what James Madison referred to as the ability of “the government to control the governed” — Second Amendment sanctuary counties invoke a false analogy for legal justification. In doing so, they also exemplify the tendency of extremist Second Amendment ideology to ignore norms critical to the rule of law.

The resolutions’ nomenclature is a tongue-in-cheek jab at the sanctuary city (and state) measures adopted by numerous localities and states in recent years, aimed at protecting illegal immigrants from the specter of federal immigration authorities. To the sheriffs and counties defying state gun control measures, their “opting out” of statewide gun policy is legally and morally akin to the cities and states that “opted out” of the Trump administration’s nationwide enforcement of federal immigration law. Policy aside, the subtext of partisan divide is readily apparent.

This argument, however, is flawed at its core. There is little equivalency between disobeying state gun control laws and allowing for sanctuary cities. For one, there is no “opting out” of statewide policy for local law enforcement. Washington Gov. Jay Inslee stated in regard to his state’s disobedient sheriffs, “No one has the ability to pick and choose which laws to follow.” Sanctuary city laws, on the other hand, command state or local law enforcement officers to not comply with requests by federal immigration officers to go above and beyond normal police duties in pursuing detained immigrants. In the former case, subordinates are ignoring direct commands from superiors to enforce laws on the books. In the latter, authorities are made not to assist agents who enforce a completely separate set of laws.

To reiterate: State legislatures and the laws they pass displace local authorities and their prerogatives. By way of example, last month, the largely pro-gun Montana House passed bills prohibiting certain gun controls from being enacted by local governments. Should these bills become law, would pro-gun control sheriffs in Montana be justified in labeling their counties as gun control sanctuaries, where new gun control laws would be allowed in violation of higher, state law? The answer, for anyone who recognizes the prerogative of any state over its constituent counties, would be no.

Furthermore, the growing acceptance of Second Amendment sanctuary counties demonstrates a worrying dismissal of the rule of law in America. America’s system of governance is revered because judgments are dictated by laws, as opposed to the whimsical biases or selfish preferences of those at the top. And the only thing that makes these laws durable is the respect the people have for them. Women’s suffragist Elizabeth Cady Stanton recognized that a republic should find it “very important the people … respect the laws.” Likewise, laws must be universally applicable to engender respect. Former U.S. Supreme Court Justice Felix Frankfurter remarked, “If one man can be allowed to determine for himself what is law, every man can.” Viewing state laws as somehow subservient to authoritative decree or county-level vote rejects both these fundamental tenets.

This is not to say that civil disobedience is under no circumstances justified. Martin Luther King, Jr. himself spoke of disobeying unconscionable laws as “expressing the highest respect for law.” But the justifications for defiance put forth by sheriffs in Second Amendment sanctuary counties offer nothing compatible with this exception. In Quay County, where the movement started, the sheriff intended to resist “unconstitutional” gun control laws. Yet, he provided no explanation for how New Mexico’s new mandatory background check laws, legal in many other states, were unconstitutional.

In Washington as well, no measures included in the opposed gun control law violated the standing Supreme Court interpretations of the Second Amendment, rendering invalid the argument for disobedience of the law. Klickitat County Sheriff Bob Songer’s demand that the Supreme Court first declare the statewide gun control measure constitutional before he enforces it was equally ludicrous, contradicting concepts as fundamental and entrenched in American governance as preemption and judicial review. The sheriffs’ respect for the rule of law clearly does not match their bravado.

What can we as Americans take away from the rise of so-called Second Amendment sanctuary counties? At first glance, the sanctuary county trend demonstrates a misplaced faith in the power of superficial analogy. By implying via namesake a justification for disobedience, sheriffs in four states communicate their inability to understand the nuanced difference between failing to follow a direct order and choosing to assist authorities of separate jurisdiction.

But there are more troubling problems illustrated by the trend than mere ignorance. The sheriffs and counties in question have trampled on laws, passed by legitimately elected officials, by non-judicial means and without moral justification. Their dereliction of duty demonstrates a greater disregard for the rule of law than was previously imagined in America.

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