Do Virginia 'Second Amendment sanctuary' resolutions adopted by counties have any legal effect?

Plain-English summary

Delegate Jerrauld Jones asked the AG to address head-on a wave of "Second Amendment sanctuary" resolutions that, by late 2019, had been adopted by more than twenty Virginia localities. The resolutions, anticipating gun-violence-prevention legislation in the upcoming 2020 session, declared the localities' intent to exempt themselves from any such laws. The political backdrop was raw: in May 2019 a mass shooting in Virginia Beach killed twelve, a July 2019 special session on gun violence was adjourned without action, and the November 2019 elections produced a Democratic legislative majority committed to passing gun safety measures.

The Delegate asked two clean legal questions: (1) Do the resolutions have legal effect? (2) Can localities or local constitutional officers nullify or opt out of state laws?

AG Mark Herring's answer to both was no.

On (1), most of the resolutions only "express the intent" of the board of supervisors to oppose anticipated infringements. They don't direct any concrete refusal-to-enforce action. They are expressions of opinion, which carry political weight but no legal force.

On (2), the analysis stacks three Virginia legal doctrines:

• State constitutional supremacy. Va. Const. art. VII, § 2 gives the General Assembly authority over local powers. Va. Const. art. IV, § 14 makes legislative authority extend to all subjects not specifically restricted.
• Statutory supremacy. Section 1-248 expressly subordinates local ordinances, resolutions, and rules to the Virginia Constitution and laws.
• Dillon Rule. Virginia localities have only "those powers expressly granted by the General Assembly, those necessarily or fairly implied therefrom, and those that are essential and indispensable" (Richmond v. Confrere Club, 1990). If a locality can't identify a delegated power for its action, "the inquiry is at an end" and the action is void (Commonwealth v. Arlington County, 1977; Sinclair v. New Cingular Wireless, 2012).

No statute delegates to localities the authority to exempt themselves (or anyone else) from gun-violence-prevention laws. In fact, § 15.2-915(A) explicitly preempts local firearm regulation.

The opinion then addressed two predictable arguments. First, the constitutionality argument: localities cannot declare state statutes unconstitutional. That's the courts' job, from Marbury v. Madison (1803) onward. Police officers, clerks, and other administrative actors must follow duly enacted laws until repealed or judicially invalidated (Freeman v. Commonwealth, 2015; Michigan v. DeFillippo, 1979; 2014 and 2007 Va. AG opinions).

Second, the anti-commandeering argument: localities cannot refuse to enforce state laws on the theory that doing so would commandeer local resources. The federal anti-commandeering doctrine (Printz v. United States, 1997; Murphy v. NCAA, 2018) protects states from federal compulsion. It says nothing about state-locality relationships within a state. Williams v. Mayor & City Council of Baltimore (1933) confirms that "[a] municipal corporation, created by a state for the better ordering of government, has no privileges or immunities under the [F]ederal [C]onstitution which it may invoke in opposition to the will of its creator." Virginia law has no parallel anti-commandeering principle.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

The Virginia Constitution at art. VII, § 2 directs that "[t]he General Assembly shall provide by general law for the ... powers ... of counties, cities, towns, and regional governments." Article IV, § 14 provides that legislative authority "shall extend to all subjects of legislation" not specifically restricted by the constitution. A.E. Dick Howard's Commentaries describes the constitutional structure as "[c]entral to [Article VII, Section 2] is the idea of the General Assembly's power to control local government."

Section 1-248 expressly subordinates local ordinances, resolutions, bylaws, rules, regulations, and orders to "[t]he Constitution and laws of the United States and of the Commonwealth." The Virginia Supreme Court has long enforced this: "local ordinances must conform to and not be in conflict with the public policy of the State as embodied in its statutes" (King v. Arlington County, 1954); "when a statute and an ordinance conflict, the statute must prevail" (Covel v. Town of Vienna, 2010).

The Dillon Rule: "[Virginia localities] may exercise only those powers expressly granted by the General Assembly, those necessarily or fairly implied therefrom, and those that are essential and indispensable" (Richmond v. Confrere Club, 1990). Strict construction applies: "if there is a reasonable doubt whether legislative power exists, the doubt must be resolved against the local governing body" (Marble Technologies v. City of Hampton, 2010). The threshold inquiry: "to determine in the first instance, from express words or by implication, whether a power exists at all" (Commonwealth v. County Board of Arlington County, 1977). Locality bears the burden of showing delegation: "if no delegation from the legislature can be found to authorize its enactment, it is void" (Sinclair v. New Cingular Wireless, 2012).

Section 15.2-915(A) specifically preempts local firearm regulation. The AG quoted it: "No locality shall adopt or enforce any ordinance, resolution or motion ... governing the purchase, possession, transfer, ownership, carrying, storage or transporting of firearms, ammunition, or components or combination thereof other than those expressly authorized by statute."

The constitutionality argument: "All actions of the General Assembly are presumed to be constitutional" (Hess v. Snyder Hunt Corp., 1990). It is "the indisputable and clear function of the courts, federal and state, to pass upon the constitutionality of legislative acts" (Wise v. Bigger, 1884), and "[i]t is emphatically the province and duty of the judicial department to say what the law is" (Marbury v. Madison, 1803). Police, clerks, and administrative actors enforce until courts rule otherwise (Freeman v. Commonwealth, 2015; Michigan v. DeFillippo, 1979; 2014 Op. Va. Att'y Gen. 73, 75; 2007 Op. Va. Att'y Gen. 30, 31 n.8).

The anti-commandeering argument: the federal doctrine (Printz v. United States, 1997; Murphy v. NCAA, 2018) protects states from federal compulsion based on the Tenth Amendment's reservation of "residuary and inviolable sovereignty" to states. That doctrine doesn't translate to state-locality relationships, where the state can compel its localities. Williams v. Mayor & City Council of Baltimore (1933) directly states that municipalities have no federal constitutional rights they can invoke against their state creator. Virginia constitutional and statutory law recognizes no parallel anti-commandeering principle: "the Constitution of Virginia is not a grant of legislative power to the General Assembly" (FFW Enterprises v. Fairfax County, 2010), and the General Assembly's authority extends to all subjects not forbidden by the constitution (art. IV, § 14).

Common questions

Q: So what is a Second Amendment sanctuary resolution legally?
A: A statement of political opinion. It carries no legal force; it doesn't bind anyone; it doesn't change the duty of any local officer to follow state law.

Q: Can a sheriff refuse to enforce a new state gun law?
A: Per this opinion, no. Police officers are "charged to enforce laws until and unless they are declared unconstitutional" (Freeman v. Commonwealth). A sheriff who unilaterally refuses to enforce a duly enacted state law is acting outside his authority.

Q: What about a clerk who refuses to issue a CHP based on personal disagreement with the law?
A: Same answer. A 2014 Virginia AG opinion (cited here) concluded clerks have no authority to make independent constitutional determinations.

Q: Can a county use its budget to "defund" enforcement of state gun laws?
A: The opinion doesn't address budget-as-protest strategies directly, but the analytical structure points the same way: a locality cannot escape its legal obligation to enforce state law by budgetary means. The locality's budgeting authority is itself derived from state law and subject to the same supremacy principles.

Q: What about federal anti-commandeering protection?
A: The federal doctrine doesn't apply. Printz and Murphy protect states from federal compulsion. They don't protect localities from state compulsion. Williams v. Baltimore (1933) directly forecloses the argument.

Q: Could a local government challenge the state gun law in court?
A: Yes, that's the proper channel. The opinion explicitly says localities can use "legal means [as] may be expedient, including without limitation, court action" to oppose enforcement. A facial constitutional challenge or as-applied challenge is the appropriate way to test a law's validity.

Q: Does this opinion bind the localities that adopted the resolutions?
A: AG opinions are persuasive, not binding. But the analysis is solid Virginia constitutional and statutory law. A locality that defied a duly enacted gun statute on the basis of its sanctuary resolution would face a strong legal challenge.

Q: What about constitutional officers who took an oath to the Constitution?
A: Their oath is to support both the Federal and Virginia constitutions, not to make independent constitutionality calls on state statutes. The judicial branch decides constitutionality; until then, the officer enforces.

Citations

The opinion is built on Va. Const. art. IV, § 14 and art. VII, § 2; § 1-248; § 15.2-915(A); the Dillon Rule cases (King v. Arlington; Richmond v. Confrere Club; Marble Technologies v. City of Hampton; Commonwealth v. Arlington County; Sinclair v. New Cingular Wireless; Covel v. Town of Vienna; FFW Enterprises v. Fairfax County; Hess v. Snyder Hunt Corp.; Montgomery Cty.; Wise v. Bigger); Marbury v. Madison (1803); Freeman v. Commonwealth (2015); Michigan v. DeFillippo (1979); Printz v. United States (1997); Murphy v. NCAA (2018); Williams v. Mayor & City Council of Baltimore (1933); and prior Virginia AG opinions from 2007 and 2014.

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2019/19-059-Jones-issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

December 20, 2019

202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

The Honorable Jerrauld C. Jones
Member, Virginia House of Delegates
Post Office Box 2892
Norfolk, Virginia 23501

Dear Delegate Jones:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented
You have "request[ed] a formal opinion" on the "recent actions taken by more than twenty localities across the Commonwealth" to declare themselves exempt from any new gun safety laws that the General Assembly may enact in the future,[1] specifically, (1) Do the resolutions adopted by these localities have any legal effect? (2) May localities or local officials (including local constitutional officers) nullify or opt out of state laws duly enacted by the General Assembly?

Background
As your letter notes, "recurring incidents of gun violence" continue to plague the Commonwealth of Virginia.[2] The scale of the gun violence epidemic is staggering: over 10,000 Virginians have been killed by a gun since 2007.[3] Virginians also have been the victims of several mass shootings, including the 2019 tragedy in Virginia Beach.[4]

Gun violence prevention has been the subject of a vigorous public debate for many years. This debate included a special session of the General Assembly that the Governor convened in July 2019 but was adjourned without action.[5] Issues related to gun safety were also a central issue in Virginia's recent legislative elections. Following those elections, the Governor has promised to work with legislative leaders to enact certain gun safety measures, such as universal background checks, once the General Assembly convenes in January 2020.[6] In response to the upcoming General Assembly session, some localities have adopted resolutions declaring that they intend to opt out of any gun violence prevention measure that may be adopted.[7]

Applicable Law
The Virginia Constitution, the Code of Virginia, and established common law doctrines all bear on these questions.

First, the Constitution of Virginia provides that all local authority is subject to the control of the General Assembly. For example, Article VII, Section 2 of the Constitution provides that "[t]he General Assembly shall provide by general law for the ... powers ... of counties, cities, towns, and regional governments."[8]

Second, the Code of Virginia establishes the supremacy of state law over local ordinances and policies. Section 1-248 provides:

The Constitution and laws of the United States and of the Commonwealth shall be supreme. Any ordinance, resolution, bylaw, rule, regulation, or order of any governing body or any corporation, board, or number of persons shall not be inconsistent with the Constitution and laws of the United States or of the Commonwealth.[9]

As the Virginia Supreme Court has explained, because local authority is subordinate to state law, "local ordinances must conform to and not be in conflict with the public policy of the State as embodied in its statutes."[10]

Third, established common law doctrines specifically limit the authority of local governments. Virginia follows the Dillon Rule, which provides that local governments may exercise "only those powers expressly granted by the General Assembly, those necessarily or fairly implied therefrom, and those that are essential and indispensable."[11] The Dillon Rule is one of strict construction: "[I]f there is a reasonable doubt whether legislative power exists, the doubt must be resolved against the local governing body."[12] Thus, when a Virginia locality seeks to take any action, the Dillon Rule applies "to determine in the first instance, from express words or by implication, whether a power exists at all."[13] If a locality cannot identify a reasonably specific source of delegated authority, "the inquiry is at an end" and the act in question is unauthorized.[14]

Discussion
These constitutional, statutory, and common law doctrines establish that these resolutions neither have the force of law nor authorize localities or local constitutional officials to refuse to follow or decline to enforce gun violence prevention measures enacted by the General Assembly.

1. By their own terms, these resolutions have no legal effect. Although the resolutions typically contain several "Whereas" clauses, the "be it resolved" clauses generally do not purport to take any concrete action.[15] Instead, the operative clauses: (a) "express[]" the "intent" of the locality's Board of Supervisors "to uphold the Second Amendment rights of [the county's] citizens," (b) "express[]" the Board's "intent that public funds of the [c]ounty not be used to restrict the Second Amendment rights of the [county's] citizens," and (c) "declare[]" the Board's "intent to oppose" any "infringement" or "restrictions" of their residents' Second Amendment rights using "such legal means [as] may be expedient, including without limitation, court action."[16] These general statements do not direct or require any specific result, and any suggestion of potential future action is entirely speculative.

2. In any event, all localities, local constitutional officers, and other local officials are obligated to follow duly enacted state laws. As described above, both the Virginia Constitution and the Code of Virginia specifically establish the supremacy of laws passed by the General Assembly over local ordinances and policies,[17] and "[i]t is well settled that when a statute and an ordinance conflict, the statute must prevail."[18] Nor have localities been delegated any authority, either express or implied, to exempt themselves (or anyone else) from gun violence prevention statutes.[19] Absent such delegation, under the Dillon Rule, "the inquiry is at an end."[20]

It also bears emphasis that neither local governments nor local constitutional officers have the authority to declare state statutes unconstitutional or decline to follow them on that basis. "All actions of the General Assembly are presumed to be constitutional."[21] Furthermore, it has long "been the indisputable and clear function of the courts, federal and state, to pass upon the constitutionality of legislative acts."[22] It follows from these well-established principles that all localities and local constitutional officers are required to comply with all laws enacted by the General Assembly unless and until those laws are repealed by the legislature or invalidated by the judiciary.[23]

Nor may localities or local constitutional officers decline to enforce laws enacted by the General Assembly on the theory that requiring them to do so would "commandeer" local resources. Although the United States Supreme Court has held that "the Federal Government may not compel the States to implement ... federal regulatory programs,"[24] that doctrine derives from the specific limitations on Congress's legislative powers and the "residuary and inviolable sovereignty" retained by the states in our federal system.[25] In contrast, "the Constitution of Virginia is not a grant of legislative power to the General Assembly,"[26] and, unlike Congress, "[t]he authority of the General Assembly shall extend to all subjects of legislation" not specifically "forbidden or restricted" by the State Constitution.[27] And neither the Federal Constitution nor Virginia law recognizes any "anti-commandeering" principle that allows localities or local constitutional officers to refuse to participate in the enforcement of state law.[28]

Conclusion
It is my opinion that these resolutions have no legal effect. It is my further opinion that localities and local constitutional officers cannot nullify state laws and must comply with gun violence prevention measures that the General Assembly may enact.

With kindest regards, I am,
Very truly yours,

Mark R. Herring
Attorney General

1. Letter from Delegate Jay Jones to Mark R. Herring, Attorney General of Virginia (Dec. 2, 2019).

2. Id.

3. VIRGINIA DEP'T OF HEALTH, OFFICE OF THE CHIEF MEDICAL EXAMINER, ANNUAL REPORT 2017, (Apr. 2019) at 231, available at http://www.vdh.virginia.gov/content/uploads/sites/18/2019/04/Annual-Report-2017.pdf; VIRGINIA DEP'T OF HEALTH, OFFICE OF THE CHIEF MEDICAL EXAMINER, Table 25: One Hundred Thirteen Selected Causes of Resident Deaths by ICD Tenth Revision Codes by Age, Race, and Sex: Virginia 2018, available at http://www.vdh.virginia.gov/HealthStats/documents/pdf/death_2-25_2018.pdf.

4. Steve Almasy & Rebekah Riess, At Least 12 Dead After Disgruntled Employee Opens Fire at Virginia Beach Municipal Center, CNN, https://www.cnn.com/2019/05/31/us/virginia-beach-shooting/index.html (last updated June 1, 2019).

5. Cameron Thompson & Gabrielle Harmon & CNN Wire, Virginia Republicans End Governor Northam's Special Session on Gun Violence One Hour After It Starts, WTVR (July 9, 2019), https://wtvr.com/2019/07/09/gun-violence-special-session-ends/.

6. Gregory S. Schneider, In Virginia, and Elsewhere, Gun Supporters Prepare to Defy New Laws, WASH. POST (Nov. 23, 2019), https://www.washingtonpost.com/local/virginia-politics/in-virginia-and-elsewhere-gun-supporters-prepare-to-defy-new-laws/2019/11/23/4a95fcc2-0c86-11ea-bd9d-c628fd48b3a0_story.html.

7. Examples of these resolutions are attached hereto as Exhibit 1.

8. VA. CONST. art. VII, § 2; see also 2 A.E. DICK HOWARD, COMMENTARIES ON THE CONSTITUTION OF VIRGINIA 803-05 (1974) ("Central to [Article VII, Section 2] is the idea of the General Assembly's power to control local government."); id. at 829 (noting that the Constitution of Virginia "makes no attempt to spell out [the] duties or compensation" of local constitutional officers and that "[t]he General Assembly is authorized to fix these either by general law or by special act").

9. VA. CODE ANN. § 1-248 (2017).

10. King v. Arlington Cty., 195 Va. 1084, 1090, 81 S.E.2d 587, 591 (1954).

11. Richmond v. Confrere Club of Richmond, Virginia, Inc., 239 Va. 77, 79, 387 S.E.2d 471, 473 (1990).

12. Marble Techs., Inc. v. City of Hampton, 279 Va. 409, 417, 690 S.E.2d 84, 88 (2010).

13. Commonwealth v. Cty. Bd. of Arlington Cty., 217 Va. 558, 575, 232 S.E.2d 30, 41 (1977).

14. See id; see also Sinclair v. New Cingular Wireless PCS, LLC, 283 Va. 567, 576, 727 S.E.2d 40, 44 (2012) ("In considering whether a local governing body had authority to enact an ordinance, there is no presumption that it is valid; if no delegation from the legislature can be found to authorize its enactment, it is void.").

15. See Exhibit 1.

16. Id. at 2, 4, 5, 6.

17. VA. CODE ANN. § 1-248.

18. Covel v. Town of Vienna, 280 Va. 151, 162, 694 S.E.2d 609, 616 (2010).

19. In fact, Virginia law currently provides that localities are prohibited from "adopt[ing] or enforc[ing] any ordinance, resolution or motion ... governing the purchase, possession, transfer, ownership, carrying, storage or transporting of firearms, ammunition, or components or combination thereof other than those expressly authorized by statute." VA. CODE ANN. § 15.2-915(A) (2018).

20. Commonwealth v. Cty. Bd. of Arlington, 217 Va. at 575, 232 S.E.2d at 41.

21. Hess v. Snyder Hunt Corp., 240 Va. 49, 52, 392 S.E.2d 817, 820 (1990); see also Montgomery Cty. v. Virginia Dep't of Rail & Pub. Transp., 282 Va. 422, 435, 719 S.E.2d 294, 300 (2011) (emphasizing that "[t]here is, indeed, no stronger presumption known to the law").

22. Wise v. Bigger, 79 Va. 269, 273 (1884) (emphasis added); see also Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) ("It is emphatically the province and duty of the judicial department to say what the law is.").

23. See Freeman v. Commonwealth, 65 Va. App. 407, 421-22, 778 S.E.2d 519, 526 (2015) (stating that "[p]olice [officers] are charged to enforce laws until and unless they are declared unconstitutional" and that "[s]ociety would be ill-served if its police officers took it upon themselves to determine which laws are and which are not constitutionally entitled to enforcement" (quoting Michigan v. DeFillippo, 443 U.S. 31, 38 (1979)); 2014 Op. Va. Att'y Gen. 73, 75, 76 (concluding "that a Clerk has no authority by which to make independent determinations respecting the constitutionality of statutes" because "the interpretation of the federal and state constitutions is a discretionary duty for the judicial branch and thus outside [a Clerk's] authority"); see also 2007 Op. Va. Att'y Gen. 30, 31 n.8 (citing cases for the proposition that administrative agencies have no power to determine the constitutional validity of statutes).

24. Printz v. United States, 521 U.S. 898, 925 (1997) (emphasis added).

25. Id. at 919 (quoting THE FEDERALIST No. 39, at 245 (J. Madison)); see Murphy v. Nat'l Collegiate Athletic Ass'n, 138 S. Ct. 1461, 1475 (2018) (noting that, under the Federal Constitution, Congress may not "issue orders directly to the States").

26. FFW Enterprises v. Fairfax Cty., 280 Va. 583, 593, 701 S.E.2d 795, 801 (2010) (internal quotation marks and citations omitted).

27. VA. CONST. art. IV, § 14.

28. See, e.g., Williams v. Mayor & City Council of Baltimore, 289 U.S. 36, 40 (1933) ("A municipal corporation, created by a state for the better ordering of government, has no privileges or immunities under the [F]ederal [C]onstitution which it may invoke in opposition to the will of its creator." (collecting cases)).