Can your county sheriff take on the mantle of a US Supreme Court Justice and interpret the 2nd, 4th, and 10th amendments of the US Constitution?
Actually, no. But in Coos, Wheeler, and Wallowa Counties, some people like to think they can.
Extremists groups are attempting to pass so-called Second Amendment Protection (SAP) ordinances in several Oregon counties. While the SAPs vary, most attempt to grant authority to the county sheriff to determine whether or not federal and state firearm laws are constitutional. In addition, most SAPs attempt to grant authority to the county sheriff to not enforce firearm laws.
Many people remember from high school civics that, under the US Constitution Supremacy Clause (Article VI, Section 2), county and state law cannot supersede federal law.
Many people also know that county law cannot supersede state law.
SAPs attempt to supersede both federal and state laws.
Grant County Judge Cramer stated (1) that a Grant County SAP petition violated Oregon’s firearm preemption law (ORS 166.170). The firearm preemption law states that only the Oregon legislature has the right to make and amend firearm-related laws. Ironically, one of the most vocal backers of SAPs used the firearm preemption law in 2011 in a lawsuit that forced Oregon colleges to allow people with concealed carry handgun licenses to carry loaded, hidden guns onto Oregon University System campuses. Now, that group is using SAPS to flout that very same law.
Judge Cramer also found (2) that the Grant County SAP petition ran afoul of the initiative petition process under the Oregon Constitution, Article IV, Section 1 which states that petitions can only make new law. SAPs attempt to change who interprets laws; SAPs do not make new laws. Therefore, SAPs are administrative and not the proper subjects of the initiative petition process.
SAPs will be on the ballot in 2018 in the following counties: Baker, Columbia, Douglas, Jackson, Klamath, Lake, Lincoln (see page 10 of the Lincoln County link), Linn, Union, and Yamhill. The initiative petitions in Benton, Crook, Deschutes, Grant, Harney, and Jefferson Counties were either denied or failed to gather the required signatures.
The Douglas County SAP was directly placed onto the November 2018 ballot by the Douglas County Commissioners.
Coos County enacted a SAP in 2015 by initiative petition. The Board of Commissioners in Wheeler (2015) and Wallowa (2013) Counties both enacted SAPs without a county vote.
At this writing, we do not know if the sheriffs of Coos, Wheeler, or Wallowa Counties have published which laws they have determined to be unconstitutional. We know of no case in which a SAP has been invoked to prosecute an individual for enforcing a firearm law that has been determined to be unconstitutional by a county sheriff.
The nation’s founders established the three branches of government as a way to prevent authoritarianism. The three branches limit the power of each branch through a series of restraints known as checks and balances.
Retired Supreme Court Justice Sandra Day O’Connor said,
“It matters enormously to a successful democratic society like ours that we have three branches of government, each with some independence and some control over the other two. That’s set out in the Constitution.” – Sandra Day O’Connor
SAPs damage the power balance between the branches of government. They usurp power from the legislative and judicial branches, and leave citizens unsure of the processes of their own government. If a sheriff interprets a law, to whom does a citizen address grievances? Who will have checks on the county sheriff? Will the county sheriff decide to determine the constitutionality of all the cases of the US Supreme Court? Will the sheriff decide to disallow immigration? Abortion? Voting?
When the sheriff is allowed to decide which laws to not enforce, how will any laws be enforced? How long will a law be–or not be–enforced? Can the sheriff’s mind change day-to-day? Weekly? At high tide? If the sheriff determines that convicted domestic abusers can have guns, what will happen when an abuser shoots to death those he abused? Who then will be held accountable?
So-called Second Amendment Protection measures only serve to make gun extremists feel better about themselves. Eventually, SAPs will be recalled because they are not constitutional under the laws cited above.
To fight SAPs, help educate your county voters about SAPs and urge them to vote no on SAPs. If your county already has a SAP, contact your county’s district attorney to ask that the SAP be nullified.
The question at the center of this issue is: who has the power to establish, interpret, and enforce laws? The answer has already been decided by the United States Constitution. The power lies within the people to elect officials, including sheriffs; to petition the government to change laws; and to expect law enforcement to enforce the laws set forth by our state and federal legislators.
Ceasefire Oregon Executive Director Penny Okamoto on Jefferson Public Radio, October 2, 2018: “The No Side On Local Gun Protection Measures.”
(1) “The plain reading of measure 12-72 violates this statute [ORS 166.170] and by definition enters into an area that by law is not of county concern.” Grant County Circuit Case No.18CV19251, Judge W.D. Cramer, Jr., letter to Mr. Mark Webb and Mr. Ronald S. Yockim, July 29, 2018.
(2) “Further [the measure] contains provisions that are not legislative in nature and; therefore, not proper for an initiative by definition.” Grant County Circuit Case No.18CV19251, Judge W.D. Cramer, Jr., letter to Mr. Mark Webb and Mr. Ronald S. Yockim, July 29, 2018.