Sheriffs Have No Veto
Refusing to enforce constitutionally dubious legislation is no better when they do it.

Weld County Sherriff John Cooke at a press conference in May, 2013.



Illustrating its remarkable talent for arriving late to a story and yet treating its contribution as if it were a revelation, the New York Times yesterday noticed that there are sheriffs in America who are refusing to enforce the laws. In Colorado, New York, Florida, and California, the Times explained breathlessly, sheriffs have simply said “no” to new gun-control measures, preferring instead to elevate their personal interpretations of the Second Amendment above the discipline of the statute book. “In my oath,” one Sherriff Cooke of Greely, Colo., claims, “it says I’ll uphold the U.S. Constitution and the Constitution of the State of Colorado. It doesn’t say I have to uphold every law passed by the Legislature.”

Sherriff Cooke is, alas, no relation. But, family or not, I have a great deal of sympathy for his position. Since Colorado passed its nasty little collection of knee-jerk gun-control measures earlier in the year, Cooke has been expected to enforce laws that are effectively unenforceable, and to do so over the vocal opposition of a citizenry on whose trust he relies. He is justifiably vexed. Holding up two ostensibly identical magazines — one legal and one not — the Times has Cooke asking in desperation, “How is a deputy or an officer supposed to know which is which?” Honestly, I don’t know. It’s a mess.

Nevertheless, that Cooke’s instinct is the right one does not mean that his conclusion is prudent. Prosecutorial discretion is one thing; a blanket refusal to abide by the rules is quite another. Indeed, much as it vexes me to admit, Andrew Cuomo got it right when he worried aloud that the refusal of two sheriffs in his state to enforce his state’s execrable SAFE Act could set “a dangerous and frightening precedent.” There is, after all, a reason that we establish firm processes by which our laws are passed, by which our elections are conducted, and by which our business is done. There is a reason that we render sacred the documents that outline the structure and power of our governments, that we wall off those areas into which they cannot intrude, and — most important — that we react with such indignation when the powerful simply flout the rules. It matters.

Ultimately, what distinguishes the Anglo-American tradition is its lack in its legal system of that most potent enemy of ordered liberty: caprice. When the British grumble that “it’s a free country,” they are primarily referring to the integrity of their institutions, which they believe to be fair. In Soviet Russia, families lay awake waiting for the knock on the door, knowing that if it came they would have little recourse. There, as in 1984, the law was precisely what those in power said that it was. If four was five and not four at all, then four was five; if the party said that you were guilty of a crime that wasn’t even a crime, then you were guilty. In the West, by contrast, there is the law. “You can’t do this to me,” a citizen might say, pointing to the rules. “It says so here, dammit.”

It would be naïve to believe that this how it always works in practice. Credulous, too, to suppose that there are not times when the entire edifice goes out the window. “I was just following orders” is no more acceptable an excuse for enabling tyranny today that it was in 1945, and, as the American experience teaches as well as any, one sometimes has a duty to resist. Nevertheless, there is an awful lot of space between where we are now and the point at which one has no option but to blow up the regime. Americans, as Thomas Jefferson put it, “should separate from our companions only when the sole alternatives left, are the dissolution of our Union with them, or submission to a government without limitation of powers.” We are not to believe, are we, that we are there?

Indeed, Sheriff Cooke still has a host of other options. In November, a judge ruled that he and 55 other Colorado sheriffs didn’t have standing to sue the state over the new laws, but that the 21 other plaintiffs did. That fight continues. In the past four months, meanwhile, three of the lawmakers who voted for the measures have been removed by dissatisfied citizens. New elections will be held next year. “Governments long established should not be changed for light and transient causes,” holds the Declaration of Independence. The Second Amendment is vital. But so is the rule of law.

Nevertheless, one can’t help but feel that the advocates of order are having the carpet whipped from under them by the public behavior of their commander-in-chief. In the Times’ story, a sheriff who is obeying the rules slammed the selective enforcement with which some of his colleagues have dallied: “A lot of sheriffs are claiming the Constitution, saying that they’re not going to enforce this because they personally believe it violates the Second Amendment,” he said. “But that stance in and of itself violates the Constitution.” It does, yes. But this is precisely the example that the president, whose constitutional duties include enforcing the law, has been busy setting the country for the last five years. Can we really be so surprised that other law-enforcement officials show the same contempt?