He denies he would selectively enforce the law, but mount a court challenge to any law that he considers an infringement on citizens' constitutional rights. However, Smith's original Facebook post did not reference lawsuits as a remedy.
In his Facebook post, Smith, a Republican, pointed to proposals that would require background checks on person-to-person gun sales as a potential violation of the Second Amendment right to bear arms.
The volume of the gun policy debate was elevated in the past six months by mass shootings at an Aurora movie theater and a Connecticut elementary school. President Barack Obama and Colorado Gov. John Hickenlooper, both Democrats, have expressed support for background checks when guns are sold from one individual to another, which is not required under current state and federal law.
"There is no law, there's a proposal," Smith said when asked whether he would enforce such a law. "I'm pointing out the holes in it. Let's see what happens."
Smith posted on his Facebook page that in his capacity as sheriff he will not "enforce unconstitutional federal laws," "obey unconstitutional laws" or allow the Constitutional rights of citizens in Larimer County to be violated. Smith contends that universal background checks on gun sales would likely violate 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," Smith wrote. "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 all too often has failed to enforce the current laws against criminal predators, will then start to discriminately target and prosecute law-abiding Americans who are simply exercising their Constitutionally recognized Right to keep and bear arms."
Smith asserts in the Facebook post that the Colorado Constitution affords sheriffs the discretion to carry out their duties independent of legal directives handed down by other governmental bodies. Rather, Smith contends that sheriffs are accountable first to the citizens in the jurisdiction where they hold office.
"Colorado was established with the Constitutional Office of Sheriff," he wrote. "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. The Colorado Sheriff occupies this independent office which is not a subservient department of county, state or federal government."
The governor and the chairman of the Larimer County Board of Commissioners view it differently.
"Last time I checked in my civics class, the only ones that could rule a law unconstitutional sit on the U.S. Supreme Court," Commissioner Steve Johnson said. "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."
"I'm not saying I'm the one to determine constitutionality," Smith said.
Hickenlooper's spokesman, Eric Brown, said the governor expects sheriffs in Colorado to uphold all state laws.
Smith defended his Facebook post as a statement that merely aimed to answer a question constituents commonly ask - whether he would enforce an unconstitutional law.
"Let them read the whole thing and draw their own conclusions," Smith said.
Written by: Patrick Malone
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