Counties’ steps aim to assert rights

Legality in doubt for some Second Amendment measures

Five Arkansas counties have approved measures intended to protect or affirm constitutional rights, largely as precautions in case county governments perceive state or federal challenges to the Second Amendment to the U.S. Constitution.

The type of measure varies by county, and legal experts say the legality and constitutionality of those measures also vary.

The “Second Amendment sanctuary” movement spread across several states after it started in Virginia in November 2019, when Democrats took control of the state House and Senate, paving the way to approve gun-control measures that Democratic Gov. Ralph Northam vowed to pursue. At least one county in a majority of states had passed a “Second Amendment sanctuary” measure by March 2020.

The Second Amendment states that “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Since January 2020, Scott, Benton, Independence, Crawford and Cleburne counties have approved ordinances or resolutions supporting the Bill of Rights, which includes the Second Amendment. An ordinance becomes law, while a reso

lution states the opinion of a governmental body at the specific moment of approval.

The recent measures in Cleburne and Crawford counties spawned from concern that the federal government, controlled by Democrats as of January, will “attempt to water down the Constitution and strip us of our rights, especially the Second Amendment,” said Jayson Peppas, justice of the peace for Crawford County District 10.

Peppas sponsored Crawford County’s ordinance, approved unanimously March 15.

Cleburne County had the same concern, District 5 Justice of the Peace Alan Malone said. President Joe Biden announced earlier this month that he would implement limited gun control measures via executive order and nominate a gun control advocate to lead the federal Bureau of Alcohol, Tobacco, Firearms and Explosives.

Cleburne County adopted a Second Amendment resolution in February 2020, but since it has “no teeth,” Malone said, the Quorum Court introduced and approved an ordinance. Six justices of the peace voted in favor, including Malone, and five voted against.

County Judge Jerry Holmes vetoed the ordinance Wednesday. He and District 4 Justice of the Peace Sean Blackburn, the ordinance’s sponsor, could not be reached for comment.

Mike Rainwater, an attorney for the Association of Arkansas Counties Risk Management Fund, said Cleburne County’s ordinance is unconstitutional, as is the one Scott County approved last year.

Section 4 of the Cleburne County ordinance declares several specific restrictions on guns to be “unlawful act[s],” including taxes, registration, tracking or confiscation “of firearms, firearm accessories, or ammunition.”

Arkansas law prohibits counties from being involved in gun regulations, Rainwater said.

“When you start getting into particulars like that, you’ve overstepped your bounds as a county,” he said.

Two bills that would direct law enforcement officers in Arkansas to ignore the enforcement of federal gun laws passed in the state General Assembly on Thursday. One of the bills would prohibit the Arkansas State Police and local law enforcement authorities from working with federal authorities to enforce federal gun laws that “infringe” on the Second Amendment. The other bill would declare any firearms manufactured and kept in Arkansas off-limits to federal or state regulation.

Gov. Asa Hutchinson, who has expressed skepticism about the measures, did not say last week whether he would sign or veto the bills.

Malone said he does not expect the Cleburne County Quorum Court to overturn Holmes’ veto, which would require the support of eight of the 11 justices of the peace. The county might not need its own ordinance if Hutchinson signs the two bills on his desk, Malone said.

“We want to see what [he] does because that will protect us somewhat, and that was one of the [county] judge’s reasonings,” he said.

‘BETWEEN THE DITCHES’

Scott County was the first in Arkansas to declare itself a “Second Amendment sanctuary.” The Quorum Court unanimously approved the ordinance affirming the entire Bill of Rights on Jan. 21, 2020.

County Judge James Forbes said at the time that the ordinance was a “nonpolitical statement.” He also said the Second Amendment was the specific one “that people feel is under attack,” although the ordinance affirmed the entire Bill of Rights.

Forbes said in an interview Friday that nothing in the ordinance supersedes the U.S. Constitution but simply states that Scott County will not violate it.

However, Scott County’s ordinance drew concern from Rainwater, who responded by writing a letter to all 75 county judges statewide urging them to be aware that such ordinances “set the county in opposition to the constitutional system that has served us well for 200+ years.”

“There is simply no need for any county to declare itself a sovereign jurisdiction that has stepped forward to create some sort of sanctuary for the protection of the individual rights of its citizens,” Rainwater wrote at the time. “That is the job of the state and it has already been done by the state of Arkansas.”

Rainwater drafted a proposed ordinance that he said fits within legal and constitutional boundaries while still affirming the Bill of Rights. The draft has been available since last year for quorum courts to approve if they choose, which Crawford County did unanimously.

Rainwater said in an interview Friday that Second Amendment issues are best handled at the state level, not the county level. He also said he is not trying to tell counties what to do, and he is not opposed to the Second Amendment or any other rights enumerated in the U.S. Constitution.

“I’m trying to keep the counties between the ditches, between the illegal ditch and the unconstitutional ditch,” Rainwater said.

Benton and Independence counties approved resolutions instead of ordinances last year. The Benton County Quorum Court considered an ordinance but decided it would be unlawful, county attorney George Spence said.

A resolution “can be used to advocate for something” even though it does not create anything enforceable, Spence said.

“It’s basically, in my view, an exercise of First Amendment rights and the rights of the Arkansas Constitution,” he said. “They might lend their support just by saying they agree with it. That’s basically what they did here.”

Benton County’s resolution “notes the recognition … of the significance of the rights of citizens as expressed in the Bills of Rights, the Fourteenth Amendment to the Constitution of the United States, and the Declaration of Rights in the Constitution of Arkansas.” It does not mention specific sections of the Bill of Rights or declare opposition to any potential state or federal regulations, unlike the Cleburne County ordinance.

Robert Griffin, county judge for Independence County, agreed with Rainwater that the Cleburne County ordinance is unconstitutional. A county cannot pass a law “creating itself an autonomous entity” since it is a subdivision of the state, Griffin said.

“I understand completely why [Holmes] would veto it,” he said. “It creates a liability to the county. The county doesn’t have the power to override state law.”

However, the state has the freedom not to enforce federal laws, and counties can follow suit if the state does so, Griffin said.

“I’d say Independence County is very likely to mirror whatever the state puts forth in [its] protection of Arkansas rights,” he said.