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County Gun Sanctuary Resolution Proposals

Leonard Page

March 10, 2020

The proposed second amendment sanctuary resolution effort proceeding at county levels is rather puzzling. It seems to address a non-existent law with a resolution that cannot be legally enforced. The apparent intent is to avoid so-called “red flag” laws from being applied at the local level. Such laws are now in place in 17 states and the District of Columbia. These extreme risk protection orders permit police or family members to petition a state court to order the temporary removal of firearms from a person who may present a danger to others or themselves. A judge makes the determination to issue the order based on statements and actions made by the targeted person. The targeted person’s due process rights are usually addressed by the state legislature so that the person has a right to participate in the hearing or request immediate review of any confiscation order.

Michigan considered such a law last year, but nothing was passed. Michigan thus has no red flag law. Existing restrictions on access to guns (such as for minors and felons) are not addressed in these “sanctuary” resolutions. Moreover, a county resolution does not have the force of law and cannot revoke a state or federal law. Local law enforcement has discretion, but they also take an oath to faithfully execute our laws. The usual method for challenging a state law is to seek repeal or court review. There is nothing to repeal or appeal.

There have been a number of state court challenges to red flag laws, but not a single court has found them unconstitutional. (Connecticut, Indiana and Florida). The Florida Court of Appeals issued a decision upholding its red flag law in that State on September 25, 2019. Interestingly, that case approved a confiscation order sought by a county sheriff against one of his deputies. Davis v. Gilchrist County Sheriff, Fla: Dist. Court of Appeals, 1st Dist. 2019.

The reality is that every square inch of United States territory is already a second amendment sanctuary. It is called the rule of law under our state and federal Constitutions. While your interpretation may be vital to you - the only opinion that matters to law enforcement is what our courts say the second amendment means. No designation of “sanctuary” status can change the rule of law in the United States.

In the seminal Heller case of 2008, SCOTUS found an individual right to bear arms. At the same time, Justice Scalia said, “ nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Justice Scalia went on to describe guns NOT protected by the 2nd amendment as “weapons that are most useful in military service such as M-16 rifles and the like.”

Five federal circuits citing Heller, have held that states have every right to enact gun control measures such as banning assault weapons and high capacity magazines. See for example Kolbe v. Hogan, 4th Circuit Court of Appeals January 2020. These cases define what the 2nd amendment rule of law means today.

The issue here is whether local governments want to go on record saying that violent, mentally unstable or suicidal people should have guns. Federal and state polls show public approval of red flag laws at over 70%. The majority of mass shooters since 1970 have been diagnosed as having a serious mental illness. One in four adult women have had a gun pointed at them by someone they know. Over 60% of our 40,000 annual gun deaths are suicides. There are two gun suicides a day in Michigan.

Opinions stated here do not reflect the positions of the Grand Traverse Democrats.

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