Request By:
Jason Darnall
Marshall County Attorney
Donna Dant
McLean County Attorney
Opinion
Opinion By: Steve Pitt,General Counsel,Office of the Attorney General
Opinion of the Attorney General
The Marshall County Attorney and the McLean County Attorney ask the Office of the Attorney General for an opinion whether resolutions being considered by their respective fiscal courts would violate Kentucky law, namely KRS 65.870. In both instances, the proposed resolutions state that the fiscal courts support the Second Amendment right of each county's citizens to keep and bear arms. This Office concludes that such resolutions are permissible and do not violate KRS 65.870.
The Marshall County resolution, restated in full, provides:
Section 5 . The criminal misuse of firearms is due to the fact that criminals do not obey laws, and that is not a reason to abrogate or abridge the unalienable, constitutionally-guaranteed rights of law-abiding citizens. Historically, the last protectors of the constitutional rights are We the People, and our ability to fulfill that role successfully rests, in part, on our Second Amendment rights to the Constitution of the United States and our rights under Section 1(7) of the Kentucky Constitution.
Section 6 . Any Federal or State statute, executive order, rule or regulation regarding the right to keep and bear arms that violates the Second, Ninth, Tenth, or Fourteenth amendments to the Constitution of the United States, Section 1(7) of the Kentucky Constitution, and/or the numerous, related Supreme Court of the United States decisions, including those listed above, shall be regarded by the People of Marshall County to be unconstitutional, a transgression of the supreme law of our nation and State.
Section 7 . Marshall County, Kentucky does not intend to authorize or consent to the use of county funds, resources, employees, agencies, contractors, buildings, detention centers, or offices, for the purpose of enforcing or assisting in the enforcement of any element of such Federal or State statutes, executive orders, rules or regulations, that unconstitutionally infringe on the right of the People to keep and bear arms as described and defined in detail above.
Section 8 . In the event the Federal or State government, by statute, executive order, rule or regulation, abridges the rights of the People of Marshall County, Kentucky to keep and bear arms secured by the Second Amendment to the Constitution of the United States and Section 1(7) of the Kentucky Constitution, Marshall County will consider, alone, or in conjunction with its sister counties in Kentucky, proceeding to a court of competent jurisdiction to enjoin, temporarily and permanently, the enforcement thereof, and will consider enacting such ordinances that protect the People of Marshall County, Kentucky in their exercise of their right to keep and bear arms secured by the Second Amendment to the Constitution of the United States and Section 1(7) of the Kentucky Constitution.
Section 9 . Nothing in this Resolution shall be construed to mean or imply that Marshall County does not support, or will not enforce, all Federal and State laws, regulations, and rules regarding the carrying of deadly weapons, whether concealed or not, in government buildings, Federal or State, including elementary and secondary schools, or in private establishments that prohibit same. Marshall County will always enforce such laws, regulations, and rules.
Section 10 . A copy of this Resolution shall be spread upon the Minutes of this meeting.
Section 11 . This Resolution shall become effective upon adoption.
THIS RESOLUTION has been adopted by the Marshall County Kentucky Fiscal Court Commissioners in their regular session this day of February, 2020.
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Likewise, the McLean County resolution, restated in full, provides:
WHEREAS, the Constitution of the United States is the supreme law of our nation, and
WHEREAS, the Second Amendment to the 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," and
WHEREAS, the United States Supreme Court has affirmed an individual's right to possess firearms, unconnected with service in a military, for traditionally lawful purposes, such as self-defense within the home, and
WHEREAS, the United States Supreme Court has affirmed that the right of an individual to "keep and bear arms," as protected under the Second Amendment, is incorporated by the Due Process Clause of the Fourteenth Amendment against the states, and
WHEREAS, the McLean County Fiscal Court is concerned about the passage of any bill containing language which could be interpreted as infringing the rights of the citizens of McLean County to keep and bear arms, and
WHEREAS, the McLean County Fiscal Court wishes to express its deep commitment to the rights of all citizens of McLean County to keep and bear arms, and
WHEREAS, the McLean County Fiscal Court wishes to express opposition to any law that would unconstitutionally restrict the rights of the citizens of McLean County to keep and bear arms, and
WHEREAS, the McLean County Fiscal Court wishes to express its intent to stand for our Second Amendment rights and oppose, within the limits of the Constitution of the United States and the Commonwealth of Kentucky, any efforts to unconstitutionally restrict such rights.
THEREFORE, BE IT RESOLVED THAT the people of McLean County, through their duly elected Fiscal Court, hereby request that our state and federal legislators pass no laws which would infringe on our constitutional 2nd Amendment right in order to preserve for the People of McLean County, their rights guaranteed by the Constitution of the United States of America, furthermore
THAT THE MCLEAN COUNTY FISCAL COURT hereby expresses its intent to uphold the Second Amendment rights of the citizens of McLean County, Kentucky, and, furthermore
THAT THE MCLEAN COUNTY FISCAL COURT hereby declares its intent to oppose any infringement on the right of law-abiding citizens to keep and bear arms.
We, the Fiscal Court of McLean County, Kentucky, through this Resolution hereby declare our rights, our freedom, and our liberty as guaranteed by the Constitution of the United States of America.
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The question presented primarily implicates KRS 65.870, which prohibits counties and certain other state political subdivisions from enacting any "ordinance, executive order, administrative regulation, policy, procedure, rule or any other form of executive or legislative action" that would regulate the "manufacture, sale, purchase, taxation, transfer, ownership, possession, carrying, storage, or transportation of firearms, ammunition, components of firearms, components of ammunition, firearm accessories, or combination thereof." Any local legislation or executive acts purporting to regulate firearms, ammunition, or their components is thus declared void by the statute. A violation of KRS 65.870 by any "public servant" can amount to a violation of either KRS 522.020 (official misconduct in the first degree) or KRS 522.030 (official misconduct in the second degree), depending on the circumstances of the violation.
This Office's review of the proposed resolutions leads us to conclude that the resolutions do not violate KRS 65.870. As a threshold matter, the Office of the Attorney General is mindful of the right of the citizens of the Commonwealth to keep and bear arms under the Second Amendment to the United States Constitution and under Section 1(7) of the Kentucky Constitution. The resolutions set out the firmly held beliefs of the citizens of Marshall County and McLean County through their duly elected fiscal courts, including the intent of the counties to oppose any attempt by government "to infringe on the right of law-abiding citizens to keep and bear arms." Indeed, the language of the proposed resolutions supports state and federal law, namely the Second Amendment to the United States Constitution and Section 1(7) of the Kentucky Constitution. A county is well within its rights to pass a resolution that expresses support for established laws. See, e.g. , KRS 67.076.
By their terms, the proposed resolutions do not regulate the "manufacture, sale, purchase, taxation, transfer, ownership, possession, carrying, storage, or transportation" of firearms, ammunition, or their components. The proposed resolutions therefore are in keeping with KRS 65.870.
Having concluded that the proposed resolutions do not violate KRS 65.870, adoption by the fiscal courts would not amount to official misconduct under KRS 522.020 and KRS 522.030.