Sheriffs have constitutional power and duty not to enforce red flag laws

Sheriff Constitutional Power

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.

Recently, I shared a story on one of my social media accounts about a group of sheriffs in Colorado who have declared that they won’t be enforcing a recently passed red flag law in the state. I also thanked my sheriff, Steve Reams, for leading this effort and for defending the Constitution as he is sworn to do.

Amazingly, but not surprisingly, some of my social media friends expressed dismay over this decision. According to my well-meaning friends and followers, this group of sheriffs 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 the Brady Handgun Violence Protection Act (Brady Bill) was enacted in 1993, sheriffs in several state refused to enforce it and sought to strike it 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, the Court ruled sheriffs weren’t required to enforce the law because it violated the Tenth Amendment.

Writing for the majority, Antonin Scalia said the decision was based on 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, he 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)

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 is directly responsible to the people of his 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 delegate to the federal government.

There is no lawful authority for judges or a court to direct the law enforcement activities of a county sheriff. He’s not a part of the judiciary. He holds 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)

In the end, the sheriff is the highest government authority in his county; higher than the governor and even the President of the United States. That means that not only can he refuse to enforce red flag laws . . . he would be negligent in his duties to do otherwise.


David Leach is the owner of The Strident Conservative.

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