The Constitution says sheriffs have the power and duty not to enforce red flag laws
With Joe Biden’s never-ending assault on gun rights increasing in intensity, I thought it would be a good time to take another look at red flag laws and what the Constitution has to say about the power sheriffs have not to enforce them.
Regular readers and/or listeners of the Strident Conservative know that I have provided a lot of information over the years about the many ways Republicans and Democrats have joined together to destroy our Second Amendment right to keep and bear arms by advancing so-called “pre-crime” laws like Extreme Risk Protection Orders (aka ERPOs or red flag laws) and the Threat Assessment, Prevention and Safety (TAPS) Act.
In the fight against this clear and present danger to liberty, it’s encouraging to hear stories about those who reject these unconstitutional efforts and how they are taking a defiant stand against the tyrannical actions of a government quickly becoming a domestic enemy to the Constitution.
One such story involved a group of sheriffs in Colorado who, in 2019, chose to take a stand against tyranny by declaring that they wouldn’t be enforcing red flag laws in the state. Much to my delight, Weld County Sheriff Steve Reams — my sheriff — was the leader of this effort to protect and defend the Constitution as he is sworn to do.
A more recent story took place in the bluest of blue states, Illinois, where sheriffs defended the Second Amendment by refusing to enforce the Protect Illinois Communities Act (PICA), a law prohibiting possession of semi-automatic rifles such as the AR-15 and paving the way for expedited universal background checks. PICA also established a state-level gun registry by requiring owners of weapons restricted under the new law to register with state police.
Amazingly, but not surprisingly, some of my readers and listeners expressed dismay over such decisions. According to my well-meaning friends, sheriffs who refused to enforce red flag laws were putting themselves above the law and essentially committing a crime of their own in the process.
In reality, these sheriffs are doing exactly what they’re supposed to do under the Constitution; at least that’s what the Supreme Court ruled a few years ago when another unconstitutional anti-gun law was tried.
When Bill Clinton signed the Brady Handgun Violence Protection Act (Brady Bill) into law in 1993, sheriffs in several states refused to enforce it and sought to have it struck down as unconstitutional. Sheriffs Richard Mack of Graham County, AZ and Jay Printz of Ravalli County, MT filed a lawsuit that reached the Supreme Court, and in a 5-4 decision, SCOTUS ruled that sheriffs weren’t required to enforce the law because it violated the Tenth Amendment.
Writing for the majority, Antonin Scalia said the decision was rooted in the fact that the Founding Fathers created a powerful local government as a check against an oppressive federal and/or state government. Quoting President James Madison, Scalia said:
“[T]he local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere.” (Federalist 39)
Justice Scalia understood that the Founders knew the dangers of an arbitrary, confiscatory, centralized government, and he pointed out how they designed a system of divided power to ensure the checks and balances necessary to protect our liberty.
The office of sheriff is unique in that he/she is directly responsible to the people of his/her county, not the government or the courts. Sheriffs are elected, not appointed, and they have complete authority to reject the acts of any agency of the government if those acts violate the rights of the people.
Remember, the people are where the Founders placed all powers not delegated to the federal government.
There is no lawful authority for a judge or a court to direct the law enforcement activities of a county sheriff. The office of sheriff is not part of the judiciary. Sheriffs hold executive power and can set up a court, empanel a jury, and form a militia or posse to protect the rights of those he represents.
Using words that sound almost prophetic in today’s anti-Second Amendment environment, President Madison confirmed that we not only have a right to be armed, he also confirmed the power of local government to protect us against a tyrannical federal/state government.
“Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.” (Federalist 46)
The Constitution has established the sheriff as the highest government authority in his/her county, higher than the governor and even the President of the United States, and that means not only can sheriffs refuse to enforce red flag laws . . . they would be negligent in their duties to do otherwise.
David Leach is the owner of the Strident Conservative. He holds people of every political stripe accountable for their failure to uphold conservative values, and he promotes those values instead of political parties.
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