Response to Herring exposes his hypocrisy

https://gunowners.org/wp-content/uploads/2019/12/GOA-VCDL-Response-to-Herring-AO-December-26-2019.pdf?fbclid=IwAR1fza0CLaaIov2QlmlW9937wV9W5f3JkWeVb5iRXXF0TG8Kn-xS4rX9VDo

The VCDL/GOA response to Herring’s ruling that 2A Sanctuary resolutions have no effect show three instances when Herring chose not to enforce laws he personally thought were UnConstitutional (he was probably correct on 2).  That is, of course, completely contradictory to his statement that local governments have no say in enforcement of laws they believe to be UnConstitiutional.

46 thoughts on “Response to Herring exposes his hypocrisy

  1. I have to admit it it was a pretty thorough analysis of the arms control controversy winding its way in Virginia.

    Who is the final arbiter in deciding whether or not to enforce laws passed by the VA legislature? Do we sidestep the courts?

    And of course the perennial question of “who shoots first, at whom and why?”.

    Liked by 2 people

    1. No one shoots anyone unless there is doubt over the outcome. If you know you’re going to lose, you don’t start the shooting.

      As it stands now, the people are substantially stronger than the State, and as long as it stays that way, it won’t come to violence.

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  2. The only true say that localities have is to challenge the laws in court. Until the determination is made by the courts concerning the constitutionality of a passed law, local LE is duty bound to enforce those laws.

    Herring was wrong, but until the courts have their say (on bills that haven’t even been debated, let alone passed and signed into law) this just a bunch of gun zealots who don’t believe there is anything that would be considered common sense control measures. If a bill passes, then challenge it in the courts. But be prepared to accept the court’s decision.

    Liked by 2 people

    1. RE: “Until the determination is made by the courts concerning the constitutionality of a passed law, local LE is duty bound to enforce those laws.”

      The analysis presented in the Response to Herring specifically refutes that view by noting, in part, that local LE takes an oath to uphold the state and federal constitutions, not an oath to uphold the acts of the General Assembly. How do you respond to the refutation?

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      1. Both Constitutions give legislative power to the legislatures, veto power to the president executive and adjudication authority to the courts.

        Upholding the Constitutions means also upholding laws passed, signed and adjudicated as legal.

        It makes no sense to say that you uphold the Constitution, but not the laws passed in accordance with its framework.

        Prisons are full of tax evaders declaring income tax unconstitutional because it was not specifically enumerated in 1784.

        Liked by 2 people

      2. RE: “It makes no sense to say that you uphold the Constitution, but not the laws passed in accordance with its framework.”

        Of course it does, when the law is unjust, immoral or unconstitutional. There’s even a legal doctrine that formalizes the concept. That would be the “ancient doctrine, historically known as ‘The Doctrine of the Lesser Magistrate'” which the Response to Herring calls out. Do you mean to assert that the Doctrine of the Lesser Magistrate does not or should not apply?

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        1. When laws are passed that are unconstitutional, unjust or immoral the constitution provide remedies through the courts, the legislature and elections.

          “The doctrine of the lesser magistrate is dependent on the private citizen argument from prior to the Reformation, which stated that any evil done by an officeholder is committed as a private citizen, rather than by the office.[1]

          A related example in the United States is the procedure in which the President can be removed by lesser figures in the national government.[2] However, in the original sense the use of the doctrine of the lesser magistrates carried with it the possibility of violence and war.”

          Simply put, we have constitutional remedies that are better than violence and those who don’t uphold the constitution are effectively advocating violence.

          Liked by 1 person

          1. But it is Northam and the NOVA Democrat enclaves that are acting contrary to the US and State Constitutions, and the citizens calling for their local governments ti stand with them who are defending the Constitutions.

            In effect, Northam is saying ‘We don’t care what the plain language of our Constitutions are, we have the power to ignore them and we will put you in prison if you resist.’

            You can’t invite violence more plainly than that.

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          2. @Don

            “ You can’t invite violence more plainly than that.”

            You have made the case that the threat of 2nd Amendment violence is the preferred route to government overreach.

            No matter what Northam says or insinuates according to your interpretation, the Constitution provides remedies through the courts, legislative debates and elections.

            There is no advantage to a civil war and in a nation this big and diverse, it would be tantamount to catastrophe. Think about the “Troubles” in Northern Ireland and ask yourself if you want that kind of terrorism stalking your grandchildren.

            We already have a taste of such activity with some of the domestic terrorism. Do you really want that on a broad scale? And not to preserve your right to bear arms, but the right to bear specific kinds of arms and accessories.

            Talking tough, like Trump likes to do, is different from seeing your friend or relative hanging from a lamppost. Or you child blown to pieces by a car bomb at the grocery store.

            Liked by 1 person

          3. No, I don’t want any of that, but you and Paul seem determined to have it happen.

            You’re the only ones talking about 2nd Amendment solutions.

            Understand that when liberty is given up, it is never regained peacefully. Yet you persist in trying to force ‘use it or lose it’ scenarios.

            I have never harmed anyone and only want to be left alone. It is you who lusts to use force against those who disagree with you.

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        2. RE: “we have constitutional remedies that are better than violence and those who don’t uphold the constitution are effectively advocating violence”

          A key point of the Response to Herring is that the doctrine of the lesser magistrate is itself a constitutional remedy and therefore justifiable on that basis alone. The doctrine is not inherently violent, but a type of petition for the redress of grievances, which constitutional officers have a right to make on behalf of the people they represent.

          Your argument boils down to saying that government is the ultimate and supreme authority in all human affairs, completely undermining the view that the rights of the people are pre-existing of government. If that’s what you truly believe, you are living in the wrong country.

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          1. Before you “boil down” what I wrote you might get cooking lessons.

            Obviously government is not the ultimate of anything. Yet, the constitution, flawed as it may be in some instances, provides a multitude of remedies to protect the rights of the citizens. Those who would just ignore a law without going through the remedies are not upholding the constitution. Rather they are upholding their personal beliefs in lieu of the constitution.

            Coming back to the Civil Rights movement, they did work a remedy for rights infringements that were a heck of a lot more serious than whether you can buy a 30 round magazine. And to put it in perspective, many died or suffered grievously for those rights. The gun lobby has not suffered squat, but they do threaten a lot.

            Liked by 1 person

          2. RE: “Those who would just ignore a law without going through the remedies are not upholding the constitution. Rather they are upholding their personal beliefs in lieu of the constitution.”

            It’s not hard to know what constitutions say such that anyone has to wait for the courts to explain them. In fact, the whole point of representative government itself is to prevent government from operating self-referentially, both as the maker and the interpreter of rules that control people’s lives. Why do you keep insisting that people have no rights until government tells us what they are?

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          3. Aside form which, you cannot challenge the constitutionality of a law other than by breaking it and asserting its unconstitutionality in court. You don’t have standing until you are impacted by the law.

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          4. …” you cannot challenge the constitutionality of a law other than by breaking it and asserting its unconstitutionality in court.”

            That is factually inaccurate. How many laws have been passed in states in the past several years that were challenged immediately by organizations that believed the laws were unconstitutional? Happens all of the time all over this country. Not bringing abortion to the argument, but those examples have been happening regularly since GOP run states have passed stricter restrictions.

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          5. “Yet, the constitution, flawed as it may be in some instances, provides a multitude of remedies to protect the rights of the citizens.”

            I said the government and its constitution PROTECT our rights, not tells us what they are. You insist on changing what I wrote to what you think I wrote.

            Of course, if the government does not protect you rights, then there is a problem. North Korea probably has a constitution of sorts that lists the rights of its citizens, but you can probably forget about them being upheld.

            The natural rights of life, liberty, property, self defense and maybe one or two others depending upon who or what your read are not granted by a government, but without its protection and enforcement an individual might be at the whim of an autocrat.

            Which is why the argument that local jurisdictions don’t have to obey the laws they don’t like is so dangerous.

            Liked by 1 person

        1. But he/she is required to follow the state constitution. If the laws pass, they are obligated to uphold them. If they don’t, the the governor would be within his/her rights (and duties) to order the State Police to enforce the law.

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    2. Agreed, the hysteria of the 2nd Amendment crowd should wait (since they can do little else) and see what the situation is when the dust settles.

      Hell, I’ll join them if the outcome is a shade of gray too far….

      Liked by 1 person

      1. Drawing lines is fraught. It’s difficult to move them as reality may dictate doing so.

        We are debating degrees of restriction, and I don’t know where the line is going to be any more than you do.

        Liked by 1 person

        1. “Shall not be infringed”

          We are already way over the line, and not an inch further is justified. That’s the problem with trying to be reasonable. Every compromise we have made has become the starting point for the next compromise.

          When I was a teen, you could buy an M1 Garand mail order. We compromised on mail order sales. We compromised on background checks, and even helped develop the system.

          What has the gun control side given up? Where is their compromise?

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          1. “What has the gun control side given up?“

            Not to be flippant, but “we” have given up too many innocent lives by allowing easy access to guns of all types without proper vetting, training, and registration.

            I believe more and stricter restrictions are needed and we need to aggressively enforce the laws already on the books.

            Liked by 1 person

          2. While true enforcement of the existing laws, those prohibiting straw purchases in particular, would likely have some value, the proposed restrictions, by reducing the ability of honest people to defend themselves, and the deterrent effect that results form that ability, would cost, not save lives.

            The NICS database laws, as intended, were to keep guns out of the hands of criminals and dangerously mentally ill. That saves lives, But the proposed laws do nothing additional to disarm criminals, they are focused on disarming people who are not the problem.

            We prosecute less than 1 in 1000 violations of the NICS law, including straw purchase, which is a major source of modern firearms to criminals.

            Fix that, and leave people like me alone.

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          3. I doubt that any of the restrictions that pass muster through the courts will effect either of us.

            And maybe aggressive enforcement and prosecution of NICS laws would be effective, heck, maybe funding for doing that instead of building a stupid “wall” would be a good idea.

            Liked by 1 person

          4. Well, Northam had no problem asking the GA for additional funding for imprisoning gun owners who do not comply with his unconstitutional proposals, so perhaps he could find the funding to prosecute those who are actively arming violent felons through straw purchases?

            At least he could if disarming criminals was actually his intent.

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  3. The Response to Herring is powerful and compelling. I am particularly struck by the statement in the second paragraph:

    “These officials appear to believe that such blind obedience is required irrespective of whether a law violates the U.S. Constitution, the Virginia Constitution, or is manifestly destructive of the preexisting rights of the People of Virginia. This radical view is demonstrably false, and ignores the significance of the fact that local officials are required by law to take an oath to support the federal and state constitutions above the laws enacted by the General Assembly.”

    The author is correct to describe the Herring/Northam view as “radical.” Our elites have become incoherent.

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  4. “… ignores the significance of the fact that local officials are required by law to take an oath to support the federal and state constitutions above the laws enacted by the General Assembly.”

    If laws are passed that may or may not be constitutional, it is up to the courts to make the final determination not a local sheriff.

    That is provided for in the very same constitution they are sworn to uphold.

    And if they still disagree, the the constitution provides for a system of passing legislation to negate bad law by passing another one. And elections provide a method by which legislation can be passed with more popular input by changing representation.

    The whole point of such a framework is to prevent anarchy, violence or armed rebellion as methods of choice to interpret and preserve rights.

    Civil rights took years to implement with virtually all the violence perpetrated by those afraid to grant basic rights to minorities. Still, they were achieved constitutionally and not by armed rebellion or threats of anarchy.

    Liked by 1 person

      1. And how many crosses did they burn on white lawns or how many white people did they sic dogs on or beat or hang or shoot?

        They were bodyguards that were necessary because the Civil Rights folks and their supporters could not count on the police to protect them from the wild eyed, murderous racists. And in many jurisdictions, the police were KKK members themselves.

        The principles for the movement were centered on non-violence, but the leaders were not idiots.

        Liked by 2 people

        1. Don’t misunderstand. I am not critical. I regard the Deacons as brothers-in-arms.

          In their time, the government at hand was the bad guys, and it was the duty of citizens to stand against it. They are what the militia is all about, soldiers of the people, not of the government.

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          1. “the government at hand” being the local towns, cities, counties and states. The Feds were the ones that eventually had to step in.

            They were rough times.

            Liked by 2 people

    1. RE: “If laws are passed that may or may not be constitutional, it is up to the courts to make the final determination not a local sheriff.”

      I believe it to be unreasonable to expect sheriffs to enforce laws they regard as unjust, immoral or unconstitutional. Sheriffs clearly have the authority to determine which laws meet those criteria in their jurisdictions. As such, they represent one element of our system checks and balances, which is meant to help prevent abuse of power by government.

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      1. “I believe it to be unreasonable to expect sheriffs to enforce laws they regard as unjust, immoral or unconstitutional.”

        You mean like Obama’s Dreamers selection so he could concentrate on deporting criminals? I recall that he was crucified by those on the right for doing just that. But his made sense from a funding point also.
        But that is another story.

        If it were up to every sheriff do decide which laws to enforce, we would have anarchy. In practice, police often use discretion when warranted. And so do local judges.

        We had a case a few years back where a local official refused to issue marriage licenses to gay couples. It was her personal choice that the law was immoral. I think you agreed that she could pick and choose based on her personal beliefs.

        I think that is wrong. And the same with a sheriff deciding what laws to enforce. He should resign.

        This debate seems as if the legislature is going to pass a law that will make euthanasia mandatory at age 75. With our system of governance, extreme laws are unlikely to pass all the hurdles, particularly since we hold elections and can change parties whenever we feel too oppressed.

        What is troubling is this undercurrent of implied violence, so called “2nd Amendment” solutions. We have seen enough domestic terrorism in the last few years to where this is not something we should dismiss to quickly.

        Liked by 1 person

  5. And yet, Herrings ruling was absolutely and obviously correct on all three points.

    1. These resolutions do not have any legal effect. They are purely symbolic.
    2. Local government officials may not declare themselves immune from the effect of state law.
    3. ONLY the courts have the Constitutional authority to deny the constitutionality of a law.

    Whatever inconsistencies or hypocrisy that one may claim to find on Herrings part has no bearing whatsoever.

    Liked by 1 person

      1. Sure, how resources are allocated is a local matter. That does not change the fact that Herring’s statement is accurate. For example, should there be a law banning more than one handgun sale per month the sheriff may choose – at his political risk – to not enforce it. BUT, the criminal gun dealer arrested by state officials can not use that local resolution as a legal defense. It has no legal standing. And if his “defense” is that such a law is unconstitutional he will have to make that argument in court and a judge, not a sheriff, mayor or county clerk will have to decide and will have to answer to higher courts on what he or she may rule.

        So, maybe now you understand that cities such as San Francisco do not have to spend local money to enforce federal immigration law? Progress comes in small steps.

        Liked by 1 person

  6. Well, it’s his job. The AG is state’s lawyer. It’s his, his predecessor’s, and his successor’s job to determine how and when to spend the state’s money in the defense or in a challenge of a law.

    As to his personal feelings, well, Cuccinelli wasted state money in an unsuccessful suit against the ACA, and I’m SURE he had personal no horse in that race. Oh yeah, and ol’ Cooch also circumvented the GA on immigration status of detained persons when TWICE bills authorizing such failed. Again, you know ol’ Kenny Boy didn’t have any personal dogs in that hunt either.

    So yes, Don, the AG is going defend some, and challenge others, but just because those positions align with his personal/political objects doesn’t automatically make it wrong. Only in the case of financial or legal alignments should an AG consider recusing himself in such lawsuits. Star Scientific? Wow, that was a random thought. Wonder what brought it on?

    Liked by 1 person

  7. I pointed out this hypocracy a while ago. It’s right up there with Democrat grandstanding about impeachment when they sang a completely different tune during Clinton. In all fairness, both parties sang the opposite tune then, which makes it funny now, but I digress. For Herring to insist that everyone do as I say and not as I do is pretty typical of Democrats, especially when they obtain some power. Then it’s watch your wallet, your job, your freedom, et al, unless you agree with them.

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  8. “…Herring chose not to enforce laws he personally thought were UnConstitutional (he was probably correct on 2).”

    So, in the game of Doc v Herring, it’s 2 to 1?

    Liked by 2 people

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