Ordinance Firing Blanks, Says Attorney Requiring Gun Ownership Called Unenforceable And Illegal

A law requiring a gun in every home would be both unenforceable and unconstitutional, according to an attorney for Benewah County.

The opinion drew fire Tuesday from St. Maries constitutionalists, who said they won’t give up on the proposed county ordinance. They say it would protect them from federal gun restrictions.

“This is our first battle of the war, and we don’t want to come away losing,” said Don Griesel, a board member of the Tenth Amendment Coalition of Benewah County.

Part-time county attorney Nancy Wolff filed her legal opinion Monday. The commissioners said little, except to schedule a decision for their Jan. 23 meeting.

Wolff panned both the proposed ordinance and a “volunteer civilian militia” the group is planning.

Wolff argues that the Second Amendment “right to bear arms” implies a freedom of choice to own - or not to own - a gun. She said a law requiring gun ownership would infringe on that right.

Also, the ordinance would be unenforceable because it provides for no penalties, Wolff said.

“In the absence of a penalty provision, a county ordinance cannot be enforced, compliance cannot be ensured and the ordinance is meaningless as a law,” she wrote.

Organizers say they intentionally made their draft toothless so it wouldn’t affect people who have moral or other objections to guns.

Wolff also addressed formation of a citizen militia. Idaho law prohibits any group from associating as a military group unless they’re “regularly with the National Guard” or have been called into service by the state or nation, she said.

In addition, Wolff said, the Terrorist Control Act of Idaho, passed in 1987, prohibits certain paramilitary groups and activities.

Griesel said the group does plan to “form a militia,” not a paramilitary group.

“We’re not trying to form a military,” he said. “We just want to have a phone tree, so people who want to defend the county or the state could be called up.”

Griesel said the group hopes the ordinance can be rewritten to circumvent the legal concerns.

“We didn’t want to get in an adversarial position with the commissioners,” he said. “Our petition wasn’t carved in stone.”

But if it’s turned down, group board members said they would take the ordinance directly to voters. They gathered 1,000 proordinance signatures and say they could easily put the measure on the ballot.

“Obviously, the will of the people supports something like this,” said board member Hari Heath of Santa. “We’re going to continue to pursue this.”

Two of the three commissioners have said they would vote for a nonbinding resolution, but not an ordinance.

Soon, the group plans to branch out into other issues, including more local control of federally managed lands and environmental regulations.

“We have just had a federal monster rear up its head and poke into places it was never intended to be,” Heath said.