Douglas County Sheriff John Hanlin, who is overseeing much of the law enforcement response to Thursday’s tragic shooting at Umpqua Community College, believes some highly unusual things about gun rights and the Constitution. Two years ago, when Vice President Joe Biden was spearheading the Obama administration’s response to the Sandy Hook school shooting, Hanlin wrote Biden threatening open defiance of federal efforts to enforce gun laws. The letter is also riddled with language commonly used by the “Oath Keepers,” a right-wing veterans and law enforcement group that is closely associated with armed, anti-government militias.
Several aspects of this letter are worth noting, but the most revealing part of the letter may be the unusual way that Hanlin introduces his pledge to oppose federal officials. “The United States Supreme Court has ruled that when a Sheriff chooses to enforce an unconstitutional directive, he is violating his Constitutional Oath. I will NOT violate my Constitutional Oath.”
This rhetoric, which focuses on an oath to follow the Constitution and a refusal to violate that oath, is peculiar to the Oath Keepers. The Oath Keepers describe themselves as an “association of current and formerly serving military, police, and first responders, who pledge to fulfill the oath all military and police take to ‘defend the Constitution against all enemies, foreign and domestic.'” Oath Keeepers played a major role in the armed standoff between federal agents and supporters of the racist Nevada rancher Cliven Bundy in 2014. Their website prominently touts their offer to provide a “security detail” to anti-gay Kentucky clerk Kim Davis in order to “protect her against unlawful arrest” (Davis’s attorneys declined this offer).
Though the Oath Keepers align themselves with the Constitution, they are also partial to paranoid rhetoric about government officials “disarm[ing] the American people,” “confiscat[ing] the property of the American people, including food and other essential supplies,” and “blockad[ing] American cities, thus turning them into giant concentration camps.” Their founder once warned that America could be ruled by a “dominatrix-in-chief” named “Hitlery” who would impose a police state and shoot resisters.
Sheriff Hanlin, it should be noted, is far from alone in his willingness to stand against federal officials. The Constitutional Sheriffs and Peace Officers Association, a group led by Oath Keeper board member Richard Mack, claims that 485 sheriffs have signed onto statements similar to Hanlin’s.
Hanlin’s letter also contains a number of statements suggesting that he holds views about the Constitution that place him well to the right of even the most conservative members of the Supreme Court. Hanlin’s letter implies, for example, that the Obama administration was considering proposals that would violate the Second Amendment at the time of this letter, but this implication is not true.
The administration offered three proposals in the wake of Sandy Hook — universal background checks, an assault rifle ban and a ban on high capacity magazines. All of these are constitutional gun regulations. As Justice Antonin Scalia explained in the Supreme Court’s DC v. Heller decision, “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill,” and background checks are an essential element of such prohibitions. Similarly, assault rifle and high capacity magazine bans fit within Heller‘s statement that the government may still ban “dangerous and unusual weapons.”
Hanlin’s letter also blurs the line between a matter that is lawfully within state officials’ discretion and something much more akin to insurrection. Under the Supreme Court’s “anti-commandeering doctrine,” states may refuse to enforce federal laws that they do not wish to devote their resources to enforcing. For this reason, provided that state law gives him the discretion to do so, Hanlin is permitted to deny his department’s resources to federal officials seeking to enforce federal gun laws.
What Hanlin may not do, however, is unilaterally assign himself the power to decide what is or is not constitutional and then refuse to “permit the enforcement” of federal laws by “federal officers within the borders of Douglas County Oregon.” This rule stretches back at least as far as the late nineteenth century, when California charged a United States Marshal with murder after the marshal shot and killed a man who threatened the life of a sitting supreme court justice. In ordering the charges dropped, the Supreme Court explained that a federal official who “is held in custody in violation of the Constitution or a law of the United States, or for an act done or omitted in pursuance of a law of the United States. . . must be discharged.”
If Hanlin believes that the federal government is acting unconstitutionally, he can file a lawsuit challenging the federal government’s action. But local sheriffs are not permitted to use the powers of their office to thwart federal officials trying to carry out their own duties.
The reason why local sheriffs do not have this power should be obvious. If local law enforcement did have the power to decide on their own what the Constitution says, and then to enforce their idiosyncratic notions about our founding document against federal officials, then this would be a recipe for armed conflicts between federal and local officials.