Posted on 01/18/2013 9:57:22 AM PST by Red Steel
LARIMER COUNTY — If any new gun laws are passed that his constituents consider unconstitutional, Justin Smith won’t enforce them. So reads a Facebook post from the Larimer County Sheriff.
The only problem: The constitution does not seem to grant Smith or his constituents the right to determine whether a law is constitutional. That authority, according to the governor and Larimer County commissioner, rests with the U.S. Supreme Court.
That is likely the biggest reason Smith pumped the brakes a tad in an interview with the Coloradoan following a social media message he posted Wednesday. In it, Smith flexed his authority and his opinion on the new gun laws discussed by President Obama earlier this week.
In performing his duties as sheriff, Smith said he will not “enforce unconstitutional federal laws, obey unconstitutional laws or allow others to violate the constitutional rights of those in my county.” Any push by the federal government to require universal background checks on gun sales would fall into the category of unconstitutional, in Smith’s estimation.
Why? Such a proposal, Smith wrote, would infringe on his citizens’ Second Amendment rights:
“I encourage thinking citizens of all political affiliations, or no political affiliation, to carefully and logically follow the shell game that is occurring before their very eyes. The only possible way to achieve ‘universal background checks’ for private transactions of lawfully-owned firearms is to register every single firearm in existence in our nation. Otherwise, the federal government could never prove the transaction of a firearm.
“Anyone who fails to go through with such registration will be defined as a criminal by our federal government. That same government which has all too often has (sic) failed to enforce the current laws against criminal predators, will then start to discriminately (sic) target and prosecute law-abiding Americans who are simply exercising their Constitutionally recognized Right to keep and bear arms.”
Smith went on to write that Colorado’s state constitution gives him the authority to enforce or not enforce a law that his constituents may find unconstitutional.
“Statutes define the specific duties of the Sheriff, but through tradition and law, it is clear, the Sheriff’s duties include the absolute obligation to protect the rights of the citizens of the county, and the Sheriff is accountable directly to those citizens,” Smith wrote. “The Colorado Sheriff occupies this independent office which is not a subservient department of county, state or federal government.”
Through a spokesperson, Gov. John Hickenlooper told the Coloradoan he expects all sheriffs in Colorado to uphold all state laws. Larimer County Commissioner Steve Johnson responded to Smith’s Facebook post in his own words.
“Last time I checked in my civics class, the only ones that could rule a law unconstitutional sit on the U.S. Supreme Court,” Johnson told the newspaper. “There are lots of laws as a public official that I don’t like, but I don’t have the authority to declare a law unconstitutional.”
When asked whether he would enforce a law requiring universal background checks if it were to pass, Smith seemed to avoid the Coloradoan’s question.
“There is no law; there’s a proposal,” Smith said. “I’m pointing out the holes in it. … I’m not saying I’m the one to determine constitutionality. Let’s see what happens.”
He may have more concerns if the CO legislature takes up the planned new gun restrictions that hinkenhooper would like to see added to law in CO.
Every LEO has the discretion to decide where his time is best spent, under the direction of his leadership. In other words, enforcing such laws might just be such a low priority for this county that they never quite get around to it. What with all the actual crime going on that they need to address and all...
No, drat blast it. I determine what laws are unconstitutional, and which laws I won’t obey. Me and tens of millions like me.
The lawyers can pound sand.
/johnny
This sheriff is making the same decision (about different laws) that the President makes every day when he directs the Attorney General to avoid prosecuting violations of laws passed by Congress and signed into law by his predecessors.
Technically true -unless one refers to the Declaration of Independence.
I don’t think federal law can or does require a state or local official to actually do anything to enforce any federal law. There’s a huge legal difference between a sheriff violating a federal law and refusing to enforce it. I think that our federal system relies in large part upon local officials enforcing federal laws. There simply are not enough federal agents to do much federal law enforcement within a nation of over 300 million people, so they rely on heavily on active local cooperation. Which is not actually required (beyond the threat of withholding federal funds) as we see all the time on the issue of immigration where the lefty jurisdictions refuse to cooperate with the feds.
Agreed. I admire the Sheriff for stating his convictions, but as you suggest, he would be better served quietly prioritizing which laws are to be enforced in his jurisdiction. Bravado could well lead to a visit from Eric Holder and the DOJ. Run silent, run deep.
Sometimes it is so blatantly unconstitutional that people don’t need the statist judges and lawyers acting as filters to relieve people of their critical thinking.
If Johnson decides that the Sheriff should be more reasonable in his enforcement by ignoring SOME violations, he can apply to the court for relief, just as he can apply to the court to order enforcement. However, the Sheriff has a right to respond to the court and raise any Constitutional question and, based on that question, to have any order stayed until SCOTUS review.
In the meantime, Johnson can appeal to the county electorate to remove the Sheriff on or before the next election, as the Sheriff can do the same to Johnson, citing his numerous arrests.
An immoral law, created by a dictator and rubber stamped by a compliant congress or court should not be obeyed. Nazis and commies created all sorts of immoral laws which were not justifiable. If you were in the army and an army officer commanded his troops to murder civilians, would you make a sudden decision not to obey, or wait until an officer, some judge or court rendered a verdict to murder them.
There are many counties which would be delighted to have this man as sheriff.
Lyon County, Nevada is electing a new sheriff either this year or next. I’ll bet there are plenty of counties who would like to have this guy....especially the rural counties.
The Colorado, Larimer County sheriff’s viewpoint seems to be widespread among US sheriffs.
According to the Yakima County sheriff, he said ALL of the sheriffs from Washington state have expressed that they will not enforce Obama’s unconstitutional edicts.
Source:
http://www.freerepublic.com/focus/news/2977419/posts?page=3#3
Even King County??
The poster who heard the radio show did say they were ‘all’ in agreement.
All the High Sheriff has to do is ignore it, then when a law suit or criminal case happens which brings the tension into question, it can wend its way to the sCOTUS.
Of course the pirate Roberts was installed on that subpreme court, at its head, to assure that the globalists' agenda was carried out which includes rendering Americans defenseless against tyranny of the democrip/republicant government.
Let's do reductio ad absurdum on this. Five people in the country may decide for any reason (threat, bribe, drugs, error) that it is constitutional to hang all Jews in the country. What then - sucks to be a Jew, or a redhead, or a lefty, or a gun owner, or anyone else who those appointed ministers of the King don't like?
The Article VI says this:
all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution;
It does not add "as interpreted by the current President, Congress or the Supreme Court." Perhaps there is a reason for that... Binding the Oath directly to the Constitition eliminates exactly these shenanigans, when various self-appointed interpreters of laws try to reinterpret them as it suits them today. The Constitution came from the people, and in the end it's the people's responsibility to support it.
Exactly. In Obama’s case, it was the DOMA law.
And no less a legal authority than Eric Holder has made this argument.
Here’s a nice little paper on the subject:
http://www.columbialawreview.org/wp-content/uploads/2012/07/112-3_Devins_Prakash.pdf
NB the table late in the paper of various statutes a list of presidents have failed to defend in court on Constitutional grounds.
Go read the paper I cited above. It provides a pretty clear history of failures to defend or enforce laws based on unconstitutionality by presidents.
As you can see from the table late in the paper, the failure to enforce a statute by the POTUS based on the thought that it was unconstitutional is hardly new or rare thing.
Here’s another paper on the topic:
http://georgetownlawjournal.org/files/pdf/96-5/Prakash.PDF..
The sheriff is on firmer legal ground than most people think. Especially since the sitting AG of the US has made this very argument himself.
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