FORT SMITH -- An ordinance set to be discussed by the Sebastian County Quorum Court in June has generated significant discussion regarding county law vs. state and federal law.
The Quorum Court will discuss a "Bill of Rights sanctuary" ordinance on June 16 adopted by neighboring Scott County five months earlier. David Hudson, county judge of Sebastian County, said Wednesday that the justices of the peace would discuss the same ordinance as Scott County's, but with Sebastian County in the language. This will be drafted before the meeting.
Scott County became the first Arkansas county to approve a "Bill of Rights Ordinance" on Jan. 21, with the county declaring that it would not enforce any laws it deems unconstitutional, including laws restricting guns.
This is part of a "Second Amendment sanctuary" trend that took root in some states and particularly in Virginia, where more than 100 cities and counties have adopted some sort of Second Amendment sanctuary resolution. It is in response to "sanctuary cities," where local police limit how much they enforce federal immigration laws.
The Second Amendment to the U.S. Constitution states: "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."
The Scott County ordinance was one of several Bill of Rights/constitutional rights sanctuary ordinances that were discussed by the Sebastian County Quorum Court on Tuesday. One of the others had been heard by the Benton County Committee of the Whole in January. The Sebastian County justices of the peace decided recently to delay a review of the Scott County ordinance until June.
The motion to table the Scott County ordinance on Tuesday was made by Justice of the Peace Shawn Looper. Looper said Thursday that he made this motion because he wanted to vote on the ordinance and for everyone involved to have the time between the May and June meetings to review it beforehand. The Scott County ordinance had fewer restrictions on county employees, in addition to being the one with which Sebastian County Sheriff Hobe Runion had the least problems.
Runion said at the meeting that he did not have a problem with the ordinance, but Quorum Court members would have to decide whether they wanted to take action on it.
ORIGIN OF DISCUSSION
Hudson said discussion of these types of ordinances began for Sebastian County during the Quorum Court's Feb. 18 meeting. The minutes from the meeting state that county resident Wade Dunn addressed the Quorum Court regarding a Bill of Rights ordinance as both a resident and a member of the Arkansas Liberty Coalition.
The Arkansas Liberty Coalition's Facebook page describes the group as a nonprofit advocacy organization dedicated to educating, equipping and engaging citizens to "take action on important constitutional and legislative issues."
On Thursday, Dunn clarified that he presented the Scott County ordinance at that meeting. He spoke at the two Quorum Court meetings that have been held this month as well.
Dunn said he thinks that Sebastian County would benefit from passing a Bill of Rights sanctuary ordinance mainly because he believes that "the Bill of Rights and the Constitution are ... what makes America America, and not some other country that's run by a king and queen or a ruler, a dictator."
Looper said he also would like to see the proposal pass, with his opinion being that it would give Sebastian County protection for the future.
"I think Marcus Richmond, who's a state representative of District 21 ... he said [at the meeting] that if you look at it now, we don't need it," Looper said. "But you never know what's going to happen in the future, so you never know who the county judge will be 20 years down the road, or 10 years down the road, or whatever, and so it gives the county a little additional protection."
REACTION OUTSIDE COUNTY
The Quorum Court also discussed an article about the Scott County ordinance written by Mike Rainwater, an attorney for the Association of Arkansas Counties Risk Management Fund, who determined it to be unconstitutional.
In the article, dated May 22, Rainwater wrote that Arkansas Code Annotated 14-16-504 states "[A] local unit of government shall not enact any ordinance or regulation pertaining to, or regulate in any other manner, the ownership, transfer, transportation, carrying, or possession of firearms, except as otherwise provided by state or federal law."
"No state or federal law otherwise provide[s] that an Arkansas county can get into the business of regulating ownership, carrying or possession of firearms," Rainwater wrote. "Any proposed county sanctuary law purporting to interpose itself as the final sovereign authority in the matter of firearms is both unconstitutional and a violation of this specific Arkansas law."
Rainwater said, according to Article 2, Section 12 of the Arkansas Constitution, it is unconstitutional for a county to "suspend or set aside the law or laws of the State."
"Therefore, a county ordinance that purports to make the county a 'sanctuary' wherein state or federal law is somehow different than or superior to or enforced in a different manner than in the rest of the state is unconstitutional," Rainwater wrote.
The proposed ordinance also contained examples of what Rainwater called "unconstitutional wording." The first of these was a part of the ordinance that states that no Scott County employee or official shall participate in the enforcement of any unlawful or unconstitutional act as defined by the ordinance.
That type of language, Rainwater said, is unconstitutional because a county does not have the authority to adopt its official county-only interpretation/definition of state or federal law, and then declare the county a sanctuary in which its definition will be deemed superior.
The ordinance also states that certain actions that it describes as "unlawful acts" are invalid and will not recognized by Scott County, rendering them null and void and of no effect in the county. The ordinance defines such acts as any federal, state or local act, law, order, rule or regulation that restricts an individual's constitutional rights.
According to Rainwater, such wording creates a new, county-only process that unconstitutionally suspends or sets aside due process.
"The net effect of such ordinance language is to declare the county first among all sovereign governments," Rainwater wrote. "Such is unconstitutional. The county is not a sovereign government at all, much less a superior sovereign government that can set aside or suspend federal or state due process."
Rainwater also said that Quorum Court members would violate their oath of office by voting for such an ordinance.
FUTURE CONVERSATION
Looper said that he would like for Rainwater to attend the Quorum Court's meeting in June and explain why the Scott County ordinance is unconstitutional.
"I guess my question would be to him is how can an ordinance that requires the state to abide by the Constitution be unconstitutional," Looper said.
This sentiment was echoed by Dunn on Thursday. Dunn said the Arkansas Liberty Coalition would like to hear and understand Rainwater's reasoning behind his determination, as opposed to reading it, and for that to be an opportunity for discussion.
"Maybe he can teach us something," Dunn said.
Sebastian County's 127,827 residents make it the state's fourth most populous county, behind Pulaski, Benton and Washington.
Information for this article was contributed by Bill Bowden of the Arkansas Democrat-Gazette.
State Desk on 05/31/2020