Voters to consider second amendment ordinance
Senior Staff Writer
Douglas County voters are being asked this November to approve or reject a countywide Second Amendment Preservation Ordinance.
They’re not alone. Similar SAPO proposals are on the ballot in nine other counties this November — Baker, Columbia, Jackson, Klamath, Lake, Lincoln, Linn, Umatilla and Union. Four counties have previously passed similar ordinances, including Coos, Curry, Wallowa and Wheeler.
Tom McKirgan is the Southern Oregon coordinator for the Committee to Preserve the Second Amendment, which has pushed for, and crafted the language in, the ordinances that have been passed or proposed around the state. McKirgan said the SAPO as it appears on the ballot is word-for-word what he proposed to the county commissioners.
The ordinance would protect county residents’ rights to keep and bear arms, and forbid county government resources being used to infringe on those rights. It expressly states that county residents have the right to own semi-automatic firearms and high capacity feed systems, and that they have the right to possess firearms without registration requirements.
Any law that interferes with those rights would be considered void. Local law enforcement could not enforce such laws, and no county money could be spent enforcing them. The law states it’s the sheriff who gets to determine whether any federal, state or local law violates the Second Amendment and is void under the ordinance.
Anyone who violates the ordinance could be fined $2,000 for an individual or $4,000 for a corporation.
SAPO supporters argue that the state legislature has been moving to restrict gun rights. They object to the 2015 passage of Oregon Senate Bill 941, for example, which expanded mandated background checks for gun purchases to include those between private individuals.
In part, there’s conflict over whether the SAPO is or is not a good idea because people have different views about how the U.S. Constitution works, and who has the right to interpret it. The key to that conflict is encompassed in the idea of “nullification.”
Retired attorney Daniel Robertson is not a fan. He said nullification is the “perception that you can ignore a law that you think is unconstitutional or immoral and not suffer any consequence, that you just have a right to do that.”
Robertson said nullification amounts to lawlessness. He said if all a SAPO ordinance said was that the local government shouldn’t violate the Second Amendment that would be OK.
“Who wants our local government to violate the Second Amendment? I don’t. If it’s just some kind of resolution in support of the Second Amendment, well fine. Let’s all raise our hands and say we support the Constitution of the United States,” he said.
But this ballot measure goes beyond that, to create civil penalties for enforcing legitimately enacted state and federal laws. That’s nullification of a legitimate law, and it’s pretty radical, he said.
The other problem, he said, is that it gives the sheriff the ability to determine what’s legitimate.
“That’s a whole different form of radicalism,” he said. It’s one he said stems from an idea on the right-wing fringe that sheriffs are the highest elected law enforcement officials and the only legitimate police force.
In reality, he said, it’s the Supreme Court that determines what’s constitutional, and that court has held that federal laws have supremacy over state laws.
He said the idea of nullification could actually work against gun rights advocates if, for example, a sheriff attempted to violate the Second Amendment himself. What if a sheriff said he didn’t want anybody in the county to own any weapon that has more than a single shot capacity?
“If their statute was legitimate, nobody could do anything about that, except elect a new sheriff. So it cuts both ways,” he said.
It’s the Supreme Court to whom the citizen should appeal to protect his Second Amendment rights from the sheriff, he said.
Robertson said passage of the SAPO is more likely to lead to a lawsuit against the county than to increased gun rights.
“If every county in the state of Oregon passes this, it is not going to change one iota the enforcement of gun laws in Oregon in any way shape or form, because if they actually try not to enforce a legitimately enacted gun law, they will be challenged, and they’ll lose,” he said.
McKirgan said his group has worked with other groups including the Oregon Firearms Federation and the Tenth Amendment Center. The Tenth Amendment Center has a much simpler, one-page model ordinance on its website. The website also prominently displays information promoting the idea of nullification.
But McKirgan said the issue here is not so much nullification as solidification. He said the goal of the SAPO is to solidify rights that already exist.
“We don’t have constitutional rights, we have constitutionally protected rights, given by God. What no government has given, no man can take away,” he said.
He said the Supreme Court is not the final arbiter of what’s constitutional.
“All they can do is opine. They can only give decisions, and they cannot create law,” he said.
McKirgan, who is a retired police officer, said the SAPO doesn’t give the sheriff any powers he doesn’t already have. He said police officers make decisions about what’s constitutional all the time. He said every time an officer smells marijuana in a car and decides whether to search it, he’s making a decision about how to interpret the Fourth Amendment protection against unreasonable searches and seizures.
He said the SAPO won’t change the way the sheriff does his job.
“It’s not granting the sheriff any more abilities than he already possesses and already uses every day,” he said.
From McKirgan’s point of view, it’s statewide gun control laws passed and proposed in the northern part of the state that are radical and unconstitutional. And the solution is to refuse to use county law enforcement or resources to enforce those laws, he said.
“It’s unfortunate that we have to do this. We shouldn’t have to, but by God if people want to give up their weapons or they want to give up their rights, do so. You can do that. Just don’t give up mine. You have no right to do that, and my rights are non-negotiable, period,” he said.