By Bryan Porter
In 1853, John Forrest Dillon was elected District Attorney for Scott County, Iowa. He then ascended to the bench, serving on the Iowa Supreme Court during the waning days of the Civil War. In 1869, President Ulysses S. Grant appointed Dillon to the U.S. Circuit Court for the Eighth Circuit, a federal appellate court comprising several midwestern states.
Judge Dillon was known as an able jurist, and in 1872 he authored an influential treatise called “Municipal Corporations.” That tome contained many novel legal doctrines, including one that is the subject of this article and which has become eponymously known as “Dillon’s Rule.” Dillon himself defined this doctrine, saying: “Municipal corporations owe their origin to … the (state) legislature. It breaths into them the breath of life. … As it creates, so may it destroy. If it may destroy, it may abridge and control.”
In the seminal 1907 case “Hunter v. Pittsburgh,” the U.S. Supreme Court cited Dillon’s book and explicitly adopted his reasoning on the question of state sovereignty over municipalities. Justice Moody, writing the opinion for a unanimous Court, held “The number, nature, and duration of the powers conferred upon” a municipality “rests in the absolute discretion of the state. … The state, therefore, at its pleasure, may modify or withhold such powers…”
The language of this opinion is clear: a municipality, incorporated by, and therefore dependent on a state, may only exercise the powers explicitly granted to it by the state legislature. While some states have chosen to adopt “home rule” provisions granting more authority to municipalities by code or constitutional amendment, Virginia has not. Therefore, Judge Dillon’s icy hand continues to posthumously hold city governments in its tenacious grasp.
The limited ability of city council to consider firearms ordinances is a prominent example of Dillon’s Rule at work. Virginia Code §15.2-915 states, in pertinent part: “No locality shall adopt or enforce any ordinance … governing the purchase, transfer, ownership, carrying, storage or transporting of firearms (or) ammunition…”
To the governing body of any municipality that might be tempted to ignore this code section, the General Assembly has appended a warning: a citizen who successfully sues a locality over a firearms ordinance may be awarded “reasonable attorney fees, expenses and court costs.” A facile translation of this subsection can be attempted: “Don’t even think it, localities.”
Of course, Dillon’s Rule is not limited to gun legislation. A locality’s ability to tax or enact zoning ordinances devolves from state legislative enactments, and any ordinance enacted outside of express delegations of authority are void ab initio.
The efficacy of Dillon’s Rule has been debated for more than a century. Opponents argue that a local governing body is closest to the electorate and, thus, best situated to express its will. They note that what the citizens of Alexandria may desire from their city code may well be different than what the citizens of Bristol might prefer, and the blanket prohibition on the exercise of local prerogatives confounds the principles of representative democracy.
Proponents reckon that the rule promotes adherence and compliance with the law. Should each locality be at liberty to enact its own criminal code, for instance, Virginians would necessarily be confronted by a crazy quilt of competing ordinances and be overwhelmed by confusion. For example, Arlington could decree that the blood alcohol level for a drunk driving charge is .16, double the current state limit, while Alexandria could decree a ‘zero-tolerance’ policy and make any detectable amount of alcohol in the bloodstream a criminal offense.
Both sides make valid points. No matter one’s viewpoint, there is no reasonable likelihood that the General Assembly will overturn Dillon’s Rule; to do so would likely require an amendment to the state constitution.
A loosening of the explicit prohibitions contained in §15.2-915 is only slightly more likely, given the political lightning rod gun legislation has become and the state legislature’s jealous guarding of its Dillon’s Rule authority.
Until and unless the Assembly delegates more authority to localities, a request for additional firearms legislation must be directed to state senators and delegates and not to members of city council.
The writer is the Commonwealth’s Attorney for Alexandria.