Colfax approves revised 2nd amendment sanctuary resolution
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By LeAnn R. Ralph
COLFAX — Colfax will now be considered a second amendment sanctuary village.
The resolution approved by the Colfax Village Board at the October 25 meeting is, however, different from the original resolution presented by a group of village residents and references lawful gun ownership, lawful gun legislation or executive orders and the authority of a court to decide if a law or executive order is unconstitutional.
At previous village board meetings, Colfax residents who wanted the village board to approve the resolution insisted that the village board and the Colfax Police Department had the authority to determine what is unconstitutional, which is a departure from the rule of law in the United States.
“I’ve been having headaches over this,” said Margaret Burcham, village trustee and chair of the public safety committee.
The public safety committee had been reviewing the proposed resolution and used suggestions from the village’s attorney to amend the resolution.
The village’s attorney, Anders Helquist with the Weld Riley law firm, also further amended the resolution.
At the October 13 meeting of the public safety committee, Jody Albricht, village president and a member of the committee, made a motion to not forward the resolution to the village board for additional consideration, but the motion died for the lack of a second, Burcham said.
After making changes to the resolution, the public safety committee voted two to one to forward the resolution to the village board with no recommendation.
Jeff Prince, village trustee, also is a member of the public safety committee.
Burcham said at the October 25 meeting that with the changes suggested by the village’s attorney, the resolution should be approved to make Colfax a second amendment sanctuary.
The resolution does not define what it means to be a “second amendment sanctuary.”
One understanding of “sanctuary” is that rules or laws are not followed or that orders from police officers are not followed.
According to notes from Helquist included in the village board packet, “If the Village chooses to pass this resolution, there is no penalty for the failure to follow the resolution’s terms. This resolution can be amended, repealed or modified by a subsequent village board.”
Prince told the other village board members that in his opinion, why go to all of the work to rewrite the resolution and then not approve it.
The resolution was approved on a vote of four village board members in favor.
Voting “yes” on the resolution were Village Trustees Jeff Prince, Jen Rud, Margaret Burcham and Carey Davis.
Voting “no” on the resolution were Village President Jody Albricht and Village Trustee Gary Stene.
Village Trustee Mark Halpin was absent from the meeting.
Court orders
According to the notes from Helquist, “We slightly adjusted the committee’s language to reflect that there may be situations where a lawful court order prohibits possession of firearms or other potential weapons, even without a conviction. For example, if there is a restraining order related to domestic violence, that is not a conviction per se, but there may be a firearms prohibition.”
According to the resolution, “Whereas the Village of Colfax Board of Trustees wishes to express its deep commitment to the rights of the citizens of the Village of Colfax to keep and bear arms, unless such citizen is convicted of a felony or otherwise prohibited by court order from owning or possession of a firearm.”
Those who wanted the village board to approve the resolution have, at meetings in the past, expressed fear that the state legislature would pass a “red flag” law.
“Red flag” laws refer to laws that allow family members or law enforcement officials to ask a judge for a court order that temporarily bars people suffering a mental health crisis from possessing a firearm if they present a danger to themselves or others.
The resolution approved by the village board recognizes there are situations where a citizen of the village could be prohibited by a court order from owning or possessing a firearm.
State law also prohibits a convicted felon from owning or possessing a firearm.
Lawful
Another concern of the residents asking for the second amendment resolution to be approved is that the state legislature might pass laws that would in some way restrict gun ownership.
According to the resolution, “Whereas, any legislation considered by the Wisconsin State Legislature or executive orders that would infringe upon the right to keep and bear arms and would ban the possession and/or use of firearms, magazines, ammunition or body armor now lawfully employed by individual citizens of the Village of Colfax, unless such citizen is convicted of a felony or otherwise prohibited by court order from owning or possessing a firearm, magazine, ammunition or body armor for their defense of life, liberty or property or for the purposes of hunting, recreation or other traditionally considered lawful purposes…”
The phrases “lawfully employed by individual citizens” and “traditionally considered lawful purposes” are significant because state law already prohibits certain behaviors, such as the possession of short-barreled shotguns or short-barreled rifles; the selling, possessing, using or transporting any machine gun or other full automatic firearm; the straw purchasing of firearms; or possessing body armor, unless the person has received an exemption.
The resolution also refers to laws that might be passed by the state legislature or executive orders that would confiscate “weapons and ammunition without probable cause and without affording due process within the Village of Colfax, Wisconsin, would be a violation of the second amendment …”
The basis of all law enforcement in the United States is probable cause and due process.
In reference to legislation, the resolution only refers to the Wisconsin Legislature passing legislation that would infringe on the right to keep and bear arms, but legislation that is passed by the assembly and the senate does not become law until the governor signs the legislation into law.
State governments and the federal government operate with three co-equal branches: legislative, executive and judicial.
Funds
According to Helquist’s notes on the resolution, “We adjusted this paragraph [the second “Be it further resolved”] to clarify the village will not fund enforcement of a law which is found to be unconstitutional by a court.”
Helquist goes on to say, “In practice, if there is a federal executive order, we anticipate citizens or other groups will bring actions to enjoin (i.e. stop) the implementation of that executive order. If a court issues an injunction prohibiting enforcement of the executive order, then the village will not allocate money to enforce such an unlawful executive order, whether or not this paragraph is contained in a resolution.”
According to the resolution “Be it further resolved, that the Village of Colfax Board will not appropriate any funds for any enforcement of firearm laws (enacted legislation or executive orders) found unconstitutional by a court and which unlawfully infringe upon second amendment rights of the U.S. Constitution against the law-abiding citizens of the Village of Colfax, Wisconsin.”
Laws enacted by a state legislature and signed into law by a governor are assumed to be legally enforceable laws unless a court decides the law is unconstitutional.
After a court finds a law to be unconstitutional, then it is no longer an enforceable law.
Heller
According to the notes from Helquist, “Though not included in the revised resolution, we included a Whereas clause that references the U.S. Supreme Court’s Heller case in support of second amendment rights.”
The Heller case was decided by the United States Supreme Court in 2008.
According to the resolution, “Whereas the U.S. Supreme Court in the case of District of Columbia vs. Heller, 554 U.S. 570 (2008) made clear that a local or state government may not simply ban firearms in that the second amendment to the federal constitution makes clear the general right of citizens to possess a firearm for traditional lawful purposes, such as self-defense within the home.”
Once again, the resolution references “lawful purposes” for keeping firearms, such as self-defense within the home.
If the second amendment sanctuary resolution had never been brought to the village board, the citizens of Colfax still would have been guaranteed their right to keep firearms for lawful purposes by the second amendment to the United States Constitution, which was reaffirmed by the U.S. Supreme Court’s Heller decision.
The Colfax Village Board started discussing the proposed resolution last spring, but at no time during the discussion did any of the Colfax Village Board members suggest that the Village of Colfax should ban firearms within the village.