Can Sheriffs Defy the Feds?

Ah, my home state of Oregon.  Reacting to President Obama’s push for gun control, a number of county sheriffs in the Beaver State have published letters stating that they will not help federal authorities enforce gun control laws they deem unconstitutional and – more ominously – they they would not “stand idly by” while the G-Men interfere with the constitutional rights of law-abiding Oregonians.

At first blush, it doesn’t seem that county sheriffs – elected officials all – should be in the position of determining the constitutionally of the laws they are employed to enforce.  But consider: prosecutors can choose not to defend on appeal laws that they do not believe are constitutional.  Notable recent examples include USAG Eric Holder’s refusal to defend the Defense of Marriage Act, and California’s refusal to defend Proposition 8.

What’s more, there’s also precedent for county sheriffs refusing to be the instrumentality of federal law enforcement – and in the gun control arena, no less.  In Printz v. United States 521 US 898 (1997), the Supreme Court held that provisions of the Brady Bill requiring local law enforcement to carry out background checks on handgun purchasers were unconstitutional under the principle of dual sovereignty.

So are the sheriffs in the right?  Not so fast.  First of all, they’re likely reacting to the potential for bans on assault weapons and high-capacity magazines.  While such laws may well be unconstitutional, sheriffs won’t be administering those regulations.  What’s more, the promise to not stand idly by while federal authorities enforce the laws sets up the potential for a serious jurisdictional crisis.

We remain a nation of laws, and if you see a common thread in the examples of prosecutorial discretion or local exercise of sovereignty, it’s that they all happened within the judicial process – not a face-off between state and federal law enforcement.  If these sheriffs want to make plain that they will not be the tools of the Feds, the time to do so is when actual laws are in place, and within the bounds of the legal process.  It’s not by releasing vague, inflammatory letters.

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