On May 17, Commonwealth Attorney G. Ryan Mehaffey sent the Spotsylvania County sheriff a letter saying Virginia’s new ban on “assault weapons” violates the Second Amendment and “cannot be lawfully enforced.” Smyth County Commonwealth Attorney Phillip Blevins sent the same message. Cato has a long record of opposing such laws—pointing out the sensationalized nature of the term “assault weapons,” filing legal briefings against Maryland’s similar law, and covering challenges to the Virginia measure. Mehaffey and Blevins can go further than just sending letters; they can bring their own lawsuit.
The idea of an official challenging the constitutionality of a law he is tasked with enforcing may seem unconventional, but there’s precedent for it in the exact context of anti-gun measures. In the 1990s, Congress enacted the federal Brady Act, which required local law enforcement to conduct background checks on would-be handgun purchasers. An Arizona sheriff brought suit in Mack v. United States, arguing that the law violated the Constitution by “commandeering” state officials into carrying out a federal program.
The district court held that the sheriff had standing to bring suit for two reasons: first, unlike the new Virginia law, the Brady Act imposed criminal penalties for noncompliance that put him at risk. Further, the court noted that he had sworn an oath “to uphold his duties as sheriff”—an oath enforceable by criminal penalties. He believed he was caught between violating federal law and violating his oath to uphold the Constitution, so he had standing.
The district court relied on the 1968 Supreme Court decision Board of Education v. Allen. There, a New York law required public school officials to lend textbooks to students attending religious schools. While the Court ultimately held that this did not violate the Establishment Clause, it easily determined that local school officials had standing. They “have taken an oath to support the United States Constitution,” and believing the state law unconstitutional, “they are in the position of having to choose between violating their oath” and refusing to comply with state law. “There can be no doubt that appellants thus have a ‘personal stake in the outcome’ of this litigation.”
The Arizona sheriff’s case eventually reached the Supreme Court under the name Printz v. United States. Though the Court did not address standing, it is a jurisdictional requirement for any suit. If the Court believed the sheriff was the wrong party to challenge the Brady Act, it could have said so, yet it left the district court’s decision undisturbed.
Guns are not the only area where officials may believe they are being asked to enforce unconstitutional laws—a similar controversy emerged in Georgia a few years ago around abortion. Officials in such a position have a decision to make: they can set their concerns aside and enforce the laws until the courts tell them not to, though this makes light of their oaths. They can refuse to comply, but this runs the risk of thwarting legitimate laws (indeed, Southern state officials refusing to enforce federal law was part of the infamous “massive resistance” to civil rights). Or they can do what other people do when their legal duties are unclear: go to court.
That’s not a perfect solution, of course. Judges can get the Constitution wrong like anyone else. But for hundreds of years, they’ve had the practical last word on what it requires of officials. That’s good enough for government work. (Besides, officials can always resign in protest should judges require them to do things they cannot conscientiously do.)
Mehaffey and Blevins do not want to enforce an unconstitutional law. Good for them. Better still, if they turn their opposition into a lawsuit that could protect the rights of all Virginians.
