LARIMER COUNTY — If any new gun laws are passed that his constituents consider unconstitutional, Justin Smith won’t enforce them. So reads a Facebook post from the Larimer County Sheriff.
The only problem: The constitution does not seem to grant Smith or his constituents the right to determine whether a law is constitutional. That authority, according to the governor and Larimer County commissioner, rests with the U.S. Supreme Court.
That is likely the biggest reason Smith pumped the brakes a tad in an interview with the Coloradoan following a social media message he posted Wednesday. In it, Smith flexed his authority and his opinion on the new gun laws discussed by President Obama earlier this week.
In performing his duties as sheriff, Smith said he will not “enforce unconstitutional federal laws, obey unconstitutional laws or allow others to violate the constitutional rights of those in my county.” Any push by the federal government to require universal background checks on gun sales would fall into the category of unconstitutional, in Smith’s estimation.
Why? Such a proposal, Smith wrote, would infringe on his citizens’ Second Amendment rights:
“I encourage thinking citizens of all political affiliations, or no political affiliation, to carefully and logically follow the shell game that is occurring before their very eyes. The only possible way to achieve ‘universal background checks’ for private transactions of lawfully-owned firearms is to register every single firearm in existence in our nation. Otherwise, the federal government could never prove the transaction of a firearm.
“Anyone who fails to go through with such registration will be defined as a criminal by our federal government. That same government which has all too often has (sic) failed to enforce the current laws against criminal predators, will then start to discriminately (sic) target and prosecute law-abiding Americans who are simply exercising their Constitutionally recognized Right to keep and bear arms.”
Smith went on to write that Colorado’s state constitution gives him the authority to enforce or not enforce a law that his constituents may find unconstitutional.
“Statutes define the specific duties of the Sheriff, but through tradition and law, it is clear, the Sheriff’s duties include the absolute obligation to protect the rights of the citizens of the county, and the Sheriff is accountable directly to those citizens,” Smith wrote. “The Colorado Sheriff occupies this independent office which is not a subservient department of county, state or federal government.”
Through a spokesperson, Gov. John Hickenlooper told the Coloradoan he expects all sheriffs in Colorado to uphold all state laws. Larimer County Commissioner Steve Johnson responded to Smith’s Facebook post in his own words.
“Last time I checked in my civics class, the only ones that could rule a law unconstitutional sit on the U.S. Supreme Court,” Johnson told the newspaper. “There are lots of laws as a public official that I don’t like, but I don’t have the authority to declare a law unconstitutional.”
When asked whether he would enforce a law requiring universal background checks if it were to pass, Smith seemed to avoid the Coloradoan’s question.
“There is no law; there’s a proposal,” Smith said. “I’m pointing out the holes in it. … I’m not saying I’m the one to determine constitutionality. Let’s see what happens.”