Thursday, July 9, 2020 -
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A red flag indeed

Sheriffs refuse to enforce the law, but so do their critics

As Colorado passed a “red flag” bill that would allow for at least the temporary seizure of firearms from people deemed threats to others or to themselves, some 50 out of 62 state sheriffs opposed the bill. Some say they will not enforce the law (if the governor signs it, which he is expected to).

Regardless of what is to be said for or against this law, any sheriff’s refusal to enforce it is a dangerous attack on our entire political system. Laws cannot be enforced or not enforced based on anyone’s personal or professional opinion. That said, the howl of criticism launched against the sheriffs from some circles reeks of hypocrisy. For the stance of the recalcitrant sheriffs reflects a damning trend in these United States that knows no political boundary.

One critic of the sheriffs says that “resistance” to the law would threaten “the coherence of the state.” Indeed so. But one may not cherry pick which law is deemed worthy of resistance and which is not. The  coherence of the state is  threatened when any law is “resisted,” whether that law be unpopular on the political right or on the political left. On the right, no gun control law should be “resisted”; equally, on the left, no immigration law or marijuana law should be resisted. Either we are a nation of laws, or we are not. And if not, civilization as we know it breaks down.

Marijuana is outlawed by the federal government. This should pose a philosophical difficulty to those who favor the legalization of marijuana on the state or the municipal level. Yet, the challenge to the coherence of the state is the same. It’s just that marijuana use is far more popular than red flag laws. Popularity is no basis on which to judge what challenges the coherence of the state.

President Obama resorted to “executive orders” to circumvent the law, or to impose the law, when he could not get laws passed that he wanted. President Trump does exactly the same thing. Of course, there is a legitimate, well defined legal field for presidential executive orders. This field does not include the circumvention of laws on the books that presidents of the US do not like. It does not include the creation of laws by executive fiat.

Indeed, we have a critical national and local problem, a growing inclination to “resist” the law in many circles, on both the right and the left. No credible objection to this problem can be made if it is made selectively. Either the laws — the ones I like and the ones I don’t  — are enforced, or, indeed, the coherence of the state — of the nation — is put at risk.

What about the civil disobedience of the 1960s? What about Martin Luther King, Jr., whom this nation honors with a national holiday? What about unjust laws? What about the laws of the Nazis during the Holocaust? Is every law to be obeyed, just because it is a law? What about the Nazis who justified their murder of  Jews by saying they were “just following orders”?

The critical difference between the “resistance” to Colorado’s red flag law (or any other law in this country) and the disobedience of Jim Crow laws is this: Those who engaged in civil disobedience against Jim Crow were willing to pay the price. They acknowledged that in order to highlight a law as unjust, they would have to pay a price. And they did. That is why we honor them.

This is a far cry from the resistance of today. Most people today want to have their cake and eat it too, whether by refusing to enforce laws they don’t like or by passing laws on one level of government against prohibitions in place on a higher level of government. Most people expect to be able to do either without repercussion.

If a Colorado sheriff refuses to enforce the red flag law and goes to jail for it, we would respect that. That would be the most effective way to highlight a fundamental flaw (if any) in the red flag law. When Jack Phillips of Masterpiece Cakeshop refused to follow what he saw as an unconstitutional law, he lost a major part of his business for five years. Sacrifice should be expected of anyone who refuses to enforce or to obey any law.  That, unfortunately, is not the tone of the discussion or the preponderant practice today.

Of course, unjust laws should be resisted. But to expect to do so without paying a price is to invite anarchy. If one person can resist one law then anyone can resist any law, as people merrily contribute to the collapse of the entire constitutional system.

A special word about laws deemed not unjust but unconstitutional. This is the claim of at least some of the Colorado sheriffs. Of course, any law passed on any legislative level may be unconstitutional. Perhaps the red flag law is unconstitutional. But it is not up to the citizen, even if that citizen is a sheriff, to determine this. It is up to the courts. If the sheriffs deem this law unconstitutional, let them go to court. That is exactly, and correctly, what the objectors to Pittsburgh’s new ban on assault weapons are doing. In the United States, short of a constitutional amendment, the courts have the final say on constitutionality, not the sheriffs or any other citizen.

Copyright © 2019 by the Intermountain Jewish News

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