Here’s the situation:
Hillary Clinton is President of the United States. She’s appointed an anti-gun justice to the Supreme Court, and the Court has ruled 5-4 that the Second Amendment no longer protects one’s individual right to keep and bear arms.
Congress, which has been taken over by the anti-gun contingent, immediately passes a law similar to Australia’s mandatory gun confiscation scheme. The bill orders local law enforcement to aid in the confiscation of all semi-automatic firearms and standard capacity magazines capable of holding 10 or more rounds.
You’re a sheriff in one of your state’s rural counties. You’ve taken an oath to defend the Constitution and uphold the law, but you also believe every American has a right to keep and bear arms. What do you do?
If you’re former Arizona Sheriff Richard Mack—founder and head of the Constitutional Sheriffs and Peace Officers Association (CSPOA)—, you defy the law and protect your constituents’ rights.
The mission of the CSPOA is to “Protect, Serve, Uphold, and Defend each citizen’s Natural, Unalienable Right to Life, Liberty, and the Pursuit of Happiness as outlined in our Bill of Rights, and our Constitution.” Naturally, one of the rights they aim to “protect, serve, uphold, and defend” is the right to keep and bear arms, and they’re willing to defy the law to do so.
The Second Amendment is especially important to the CSPOA’s founder. Mack earned national recognition when, as a sheriff in Arizona, he challenged the portion of the Brady Handgun Violence Prevention Act that commanded state and local law enforcement to conduct background checks on prospective handgun purchasers. The case went all the way to the Supreme Court, which ruled that the federal government does not have the constitutional right to force state and local officials to aid in the execution of federal law.
Speaking of the trial, Mack told the Washington Post that “the government was forcing me to participate in a gun control scheme that I knew was unconstitutional. When all law enforcement is forced into that position by state or federal legislators, which one do we side with? And I believe there is a proper way to conduct oneself in knowing the difference between enforcing stupid laws and enforcing the principles of the Constitution.”
Mack has continued to fight for the individual right to keep and bear arms, telling the Post that any gun regulation violates the Second Amendment. He founded the CSPOA in 2011 to organize and educate sheriffs and police officers who are willing to uphold what he sees as the proper interpretation of the Constitution.
According to the Center for Public Integrity, Mack said that if 600 or 700 sheriffs join his organization “everybody in this country has at least two or three places in each state where they can go for refuge, find a true constitutional sheriff who’ll tell the federal government, ‘You’re not going to abuse citizens anymore.’”
Millions of gun owners across America share Mack’s support for the Second Amendment and his dislike of gun control measures. But not all scenarios are as cut-and-dry as Hillary’s plan to confiscate the nation’s guns.
Here’s another hypothetic dilemma.
You’re a Florida county sheriff. Your deputy arrested a man at a traffic stop because he found the man carrying a loaded .25 caliber pistol without a license. Florida law stipulates that unlicensed concealed carry warrants a third-degree felony charge, so the deputy booked the man in jail.
Florida law is clear on the matter, but the Second Amendment says the right to keep and bear arms “shall not be infringed.” What do you do?
If you’re Liberty County, Florida, Sheriff Nick Finch, you let the man out of jail and white out his booking record. And if you’re Richard Mack, you recruit other members of the CSPAO to support the Florida sheriff.
In his interview with the Post, Mack defended the CSPAO’s tactics, alluding to the Alabama police officers who enforced racial segregation or Nazi soldiers who committed genocide.
“The cop who arrested Rosa Parks said,” according to Mack, “‘The law is the law.’ The officers at Nuremberg said the same thing, ‘We were just following orders.’ Well, the court determined that following orders when you’re committing a crime, or genocide, doesn’t cut it. We say the same thing. Do not say, ‘I’m just following orders.’ Do what’s right. We stand for people being abused. I don’t care if it’s gun rights, land rights, Amish rights, the federal government should not get a free pass and we should stand against their abuses.”
Mack said he has “never advocated violence” but “when you have no place else to go, when all the courts are against you, all the legislators are against you, where else do you go? I believe to the local county sheriff…and if that means standing against the federal government, then so damn be it.”
It’s this kind of rhetoric that has place Mack and his organization under closer scrutiny.
Two lengthy articles have been written in the past two weeks, both of which have criticized Mack’s brand of civil disobedience. The Center for Public Integrity published the first on April 18, and the Washington Post published a follow-up on April 28.
The articles are by no means perfect. Public Integrity’s analysis, for example, goes so far as to draw a connection between Mack’s group and the sovereign citizen movement, which the FBI believes poses a serious domestic terrorism threat. The Center for Public Integrity fails to explain how a group whose attacks are mostly “unplanned, reactive… targeting [of] law enforcement officers” could be connected to an association composed of law enforcement officials.
The Center for Public Integrity also presents the Nick Finch case as clear-cut, despite the fact that Finch was acquitted of misconduct and even won back pay as well as attorney fees. They do not explain how a jury could have acquitted Finch if he was so clearly guilty of violating the law.
That being said, the articles’ critical tone is not entirely without merit.
Mack’s stance on federal vs. state law, for example, is strangely inconsistent. His insistence on the supremacy of states’ rights doesn’t align well with his support of Sheriff Finch, who was charged with violating a state law—not a federal law. If state laws supersede federal laws, shouldn’t Finch have complied with Florida’s gun control measures? One would expect Mack to support Florida’s right to determine its own gun policies, but he clearly came down on the side of federal law (i.e., the Constitution). It isn’t clear whether Mack believes state law or the Second Amendment should take precedence in such circumstances.
Mack and his supporters also fail to address Article III of the U.S. Constitution. Article III vests the Supreme Court and the lower federal courts with the “judicial power of the United States” that extends “to all cases, in law and equity, arising under this Constitution.” In other words, according to the Constitution Mack claims to revere, federal courts are the only entity with the authority to interpret the Constitution. Neither the Constitution nor state law vests county sheriffs with such interpreting authority.
But this authority is precisely what CSPOA sheriffs claim when they refuse to enforce a law the Supreme Court has decided is constitutional under the Second Amendment. When they decide a state law violates the Second Amendment, they are enforcing the law according to their own interpretation. While I would say their interpretation is the correct one, the Constitution does not authorize them to administer it. Mack doesn’t address these issues anywhere on the CSPOA website or his personal website. How do Mack and his supporters square their love of the Constitution with their disregard for Article III?
A few disclaimers are in order at this point. I am not a constitutional lawyer, and I don’t pretend to have a complete grasp of Article III or its case history. And it is entirely possible Mack and the CSPOA have addressed the Article III objection, and I simply missed it.
Still, every high school government student knows that the Constitution charges the federal courts with interpreting the Constitution. If the CSPOA wants to maintain (some would say gain) its legitimacy, it has to address this basic objection. Second Amendment advocates in some countries would like nothing more than to vest their local sheriff with Constitution-interpreting power. I know mine would make my life much easier. But that’s not how the Founders imagined our system of government, and that’s not how the law works according to the Constitution.
In many ways, the problem goes back to the Supreme Court itself. Activist Supreme Courts have interpreted the Second Amendment to allow a level of regulation and restriction the Founders never anticipated. These interpretations depart so sharply from the clear language of the Second Amendment that Mack and his sheriffs believe they can do a better job. Maybe they could, but the Constitution does not authorize them to do so. Unfortunately, the only way to reverse Supreme Court decisions is via subsequent Court decisions (or a constitutional amendment), which is why the upcoming presidential election is so crucial.
Some believe the next president will have the opportunity to appoint three additional justices. Because the Courts interpret the Second Amendment, an anti-gun majority on the Court could wreak havoc on the individual right to keep and bear arms. If you care about the Second Amendment, it’s critical to vote in November for whichever candidate will appoint pro-gun justices (obviously, not Hillary).
At the end of the day, Sheriff Mack, the CSPOA, and Second Amendment advocates all want the same thing: less regulation, more freedom. But some strategies are more effective (and constitutional) than others. When law enforcement officials disregard the law, they set a bad precedent for other officials who may have radically different views. The slope to anarchy is a slippery one. Sheriffs who refuse to enforce gun laws one day might decide to disregard freedom of religion laws the next. When not even the sheriffs obey the law, why should the citizens?
Unjust laws have always been an unfortunate side effect of free democracy. But democracy also gives the people a way to address these laws effectively, safely, and legally. This presidential election, we have an opportunity to stack the Court in favor of gun rights for generations to come. Let’s make it happen.
About the Author: Jordan Michaels is a new convert to the gun world. A Canadian immigrant to the United States, he recently became an American citizen and is happily enjoying his newly-acquired Second Amendment freedoms. He’s a communications professional, a political junkie, and an avid basketball fan.