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Commissioners declare Livingston a ‘Constitutional County,’ ‘Second Amendment Sanctuary’

Commissioners 4/17/2023

Livingston County is the latest in a series of counties across the state who have sought to become a “constitutional county” and “Second Amendment sanctuary.” The Livingston County Board of Commissioners’ subcommittee on Courts, Public Safety, & Infrastructure Development on Monday voted in unanimous approval of a “Resolution in Support of the Second Amendment of the US Constitution and the Michigan Constitution.” 

This resolution was developed in response to the Commonsense Gun Violence Prevention legislation that was signed into law by  Governor Gretchen Whitmer on April 13th. The legislation establishes universal background checks for all firearms purchases, while also instituting safe storage requirements. In passing the proposal, the Board of Commissioners is effectively discouraging the county prosecutor and sheriff from enforcing the newly enacted legislation.

The call to the public was evenly split on the matter: fifteen people spoke in favor of the resolution, and fifteen spoke in opposition.

Many proponents of the resolution used nearly identical talking points, namely the assertion that red flag laws were unconstitutional. The Constitution makes no specific provision for such legislation, which means that red flag laws fall into the category of rights not enumerated. Per the Tenth Amendment, any rights not specifically listed in the Constitution are left up to the states. With this in mind, it’s safe to say that the State of Michigan is well within its rights to enact this legislation. 

Alex Yarber was among those who advocated for the proposed Second Amendment sanctuary, stating that it was unfair for gun owners to be “penalized when politicians capitalize on these tragedies.” The tragedies in question refer to the 2021 Oxford High School shooting and the February 13th shooting at Michigan State University, along with the countless other mass shootings across the nation.  Yarber simply stated that any form of gun control legislation was against his way of life, adding that those who oppose gun control legislation “don’t want [their] way of life to change.”

Dan Wholihan elaborated that the Second Amendment sanctuary status should be expanded to include the First, Fourth, Fifth, and Fourteenth Amendments. Wholihan, who was recently elected chair of Michigan’s 7th District Republican Committee, went on to state that “this awful red flag proposal violates all of [these amendments], puts our law enforcement at risk, puts our citizens at risk.”

The representatives of said law enforcement who were in attendance were notably silent throughout the proceedings. Sheriff Mike Murphy has made his stance on red flag laws very clear, explaining to The Livingston Post that he did not agree with them and would not be enforcing them. However, he also expressed disapproval of the Board of Commissioners’ apparent overreach. In his interview with the Post, Murphy emphasized that it is not the Board’s place to dictate how the sheriff’s office is run.

Five of the speakers made references to Nazi Germany, comparing the control of firearms to the genocidal crimes of the Holocaust. This rhetoric is no doubt a reflection of the March 22 tweet from the Michigan GOP that made the same false comparison. The tweet was criticized by Democrats and Republicans alike, with Congresswoman Elissa Slotkin commenting that “Comparing gun safety measures to the mass extermination of 6 million people is hateful & ignorant, and it comes from party leaders who are out of ideas & catering to the fringe of the fringe.” 

Just as many who supported the resolution cited its supposed unconstitutionality, those in opposition were quick to point out that a ‘Constitutional County’ is not outlined by the eponymous document but is a fictional concept. In short, there is no legal basis in either the state or federal Constitutions for this type of resolution. 

Among those who spoke out against the resolution was Ron Kardos of Oceola Township, who called the Commissioners’ proposal an “unconstitutional power-grab.” Kardos referenced a recent poll from The Detroit News that found 75% of Michiganders favored red flag laws. The poll, which has been made fully available to the public in the interest of transparency, also found that 87.8% of Michiganders were in favor of background checks, and 69.2% supported safe storage laws.

“Furthermore,” Kardos continued, “it’s not up to the sheriff or prosecutor to determine which laws are Constitutional. That’s the job of the courts.”

Kardos is correct: The Constitution is very clear in its presentation of checks and balances. The document thoroughly details the objectives, roles, and responsibilities of the three branches of government, and prescribes the duty of Constitutional interpretation to the judiciary. 

Commissioner Wes Nakagiri would later refute this claim, stating that he “disagreed with this point of view.”

Interestingly, Nakagiri – having previously stated that he disagreed with a precedent outlined in the United States Constitution – went on to support his dissent by reiterating how he, like all commissioners, took an oath to uphold both state and federal Constitutions. He added that “it is incumbent upon each commissioner to understand the Constitution.”

It could just as well be argued that it is incumbent upon all U.S. citizens to read and understand the Constitution. That being said, there is a distinct and critical difference between basic comprehension and legal interpretation.

Judy Daubenmier, chair of the Livingston County Democratic Party, noted that this resolution directly conflicted with another that was passed in February 2020. The 2020 resolution sought to make Livingston County a Second Amendment sanctuary county. At this time, the Board’s legal counsel informed them that they did not have jurisdiction over the respective offices of the sheriff and prosecutor. 

Additionally, this resolution could have unintended consequences for the Republican-controlled Board.

“In saying that you will support and act as a place of refuge for all rights in the Michigan Constitution… you are also including reproductive freedom,” Daubenmier elaborated. “With this amendment, you’re going on record as saying that you will defend the right to abortion in Livingston County.” While Daubenmier took no issue with this, she did point out that such a stance would be detrimental to the Commissioners’ “pro-life street cred.”

On the other end of the spectrum, GOP chair Jennifer Smith expressed her support for the Board’s resolution. She said that while it may not hold much weight, “it’s an important statement to make because it’s what [the commissioners’] constituency reflects.”

Smith quickly moved on to what she perceived to be a more pressing matter: her opposition to the Homeland Security Grant Program. The program is designed to “enhance the ability of state, local, tribal, and territorial governments to prevent, prepare for, protect against, and respond to potential terrorist acts and other hazards.” 

Funding from this grant is allocated toward enhancing the protection of soft targets/crowded places, information and intelligence sharing and analysis, cybersecurity, community preparedness and resilience, and election security, as well as combatting domestic violent extremism. 

Smith took offense to this on a personal level, calling herself the “poster child for red flag laws” as a result of having been “unlawfully harassed and targeted politically.”   

The Board of Commissioners has not added the Homeland Security Grant Program to the list of future discussion items. The resolution supporting the Second Amendment, however, was met with unanimous approval.

In their concluding comments, the Commissioners made it apparent that the verdict had been decided long before the call to the public. There was no deliberation amongst the Board, although Roger Deaton thanked the public for the opportunity to hear  “both sides of the aisle,” but particularly expressed his appreciation for “the voices that aren’t heard in Lansing.”

Doug Helzerman opted to circumlocute the topic altogether, focusing instead on the linguistic aspects of a highly contentious debate.

“Most of our modern disagreements are about words and phraseologies and how we frame things,” Helzerman said. “I hear the word ‘extreme.’ Right-wing. Gun violence. What do those words mean? I don’t suppose there was ever a gun that had a grudge against anybody.”

However, as noted in an article from Bridge Michigan, such resolutions are not legally binding. County commissioners don’t have the legal authority to dictate what laws sheriffs, judges, or prosecutors enforce.

The Courts, Public Safety, & Infrastructure Development Committee will meet next on May 15th, while the full Board of Commissioners will meet on April 24th.

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