NASHVILLE, Tenn. (May 4, 2015) – On Thursday, Tennessee Gov. Bill Haslam signed a bill to prohibit the state from implementing or enforcing federal gun “laws,” rules, regulations and orders that are contrary to the Tennessee state constitution. It passed 74-20 in the House, and 29-1 in the Senate.
Introduced by Sen. Richard Briggs, Senate Bill 1110 (SB1110) will ban Tennessee state or local public funds, personnel or property from being used for the “implementation, regulation, or enforcement of any federal law, executive order, rule or regulation regulating the ownership, use, or possession of firearms, ammunition, or firearm accessories” if such use “would result in the violation of Tennessee statutory or common law or the Constitution of Tennessee.”
Originally introduced in the House as HB1341 by Rep. Terri Lynn Weaver, the bill represents and important first step to ending federal gun control in the state.
“I’m from the cut that there is no need for Washington D.C. to be the end all and be all with regards to the regulatory world,” said Weaver. “We should respect our 10th Amendment and shift the power back to the states and that’s what House Bill 1341 does.”
Article I, Section 26 of the Tennessee Constitution reads:
That the citizens of this State have a right to keep and to bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime.
As noted by the Tennessee Firearms Association, this provision “does not mention the “militia” when it speaks of the right to keep, bear, and wear arms. It speaks of the individual rights of the citizens of this state to keep, bear and wear arms.”
In his important study on the right to keep and bear arms in state constitutions, Constitutional Scholar Dave Kopel noted that Tennessee courts have been restrictive on the right to bear arms, but not on keeping them. He wrote, in part:
Tennessee’s Constitution mentions “common defence” and does not specifically state any other purposes for the arms right. The Tennessee Supreme Court in the 1840 Aymette case interpreted the Tennessee guarantee, and suggested that the Second Amendment was intended “[i]n the same view.”
The Court held that bearing arms was only for militia purposes, and that keeping arms was only for collective resistance to tyranny, not for “private” defense. But even in Aymette, the right to own firearms was not restricted solely to people who might be militiamen; rather the right belonged to all citizens: “The citizens have the unqualified right to keep the weapon.
But the right to bear arms is not of that unqualified character.” Thus, even with the most restrictive reading possible of the scope of “bear arms” and the purpose of the right to arms, all (law-abiding) citizens retain a right to keep arms. In 1866, a gun confiscation law was declared unconstitutional under the Tennessee guarantee.
LEGAL AND CONSTITUTIONAL
Refusing to participate with federal enforcement is not just an effective method, it has also been sanctioned by the Supreme Court in a number of major cases, dating from 1842. The 1997 case, Printz v. US serves as the cornerstone. In it, Justice Scalia held:
The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.
As noted Georgetown Law Constitutional Scholar Randy Barnett has said, “This line of cases is now considered well settled.”
As even the Huffington Post has recently acknowledged, “resources of the federal government are stretched thin,” and such bills would “have effects beyond a simple symbolic statement. ”
Fox News senior judicial analyst Judge Andrew Napolitano affirmed the strategy. In a recent televised discussion on the issue, he noted that a single state taking this step would make federal gun laws “nearly impossible” to enforce.
“This bill draws a line in the sand on federal gun control” said Scott Landreth of ShallNot.org. “Passage sets the foundation for a rejecting of every federal gun control measure – past, present, or future.”
The way this could play out is that if the federal government were to ban or further restrict any firearms allowed under Tennessee law or the state Constitution, and then a local cop pulled someone over for a traffic violation and saw that firearm in the car, the cop could simply give the guy a ticket for the traffic violation and send him on his way.
Recently-proposed federal measures, such as an M855 ammo ban would fall under the new law and state resources would be prohibited from being used to help the federal government enforce such a ban. And any attempt to re-enact the federal “assault weapons” ban, which expired in 2004, should meet the same level of resistance in Tennessee.
The latter is an important focus for gun rights activists, as leading Democratic presidential candidate Hillary Clinton recently renewed her callfor reinstatement of the ban.
The same kind of state resistance should happen with any currently-active federal laws that restrict or ban firearms that are not prohibited in Tennessee.
Tennessee has no “assault weapon” law, no registration requirement, no state permit to purchase requirement, no owner license requirement, and no magazine capacity restriction.
Something that could be particularly notable is the federal Undetectable Firearms Act of 1988 (18 U.S.C. § 922(p)). The law is in effect until 2023 and “makes it illegal to manufacture, import, sell, ship, deliver, possess, transfer, or receive any firearm that is not as detectable by walk-through metal detection as a security exemplar containing 3.7 oz of steel, or any firearm with major components that do not generate an accurate image before standard airport imaging technology.”
No concurrent prohibition exists in Tennessee.
In practice, the new law will have a significant impact on these and any similar federal gun control measures or proposals in Tennessee should the people take action to ensure it’s followed. However, inside sources suggest that leadership in Tennessee law enforcement has no intention of changing how they currently work with what they refer to as their “federal partners.”
“Things won’t change until the people use this new law to make them change,” said Landreth. “The next step will be for people in the general public to compile a list of federal enforcement actions taken on firearms in Tennessee, a report that puts together which laws are being enforced, which state agencies are helping them, and which ones likely violate the law signed by the Governor last week.”
From there, Landreth suggested that state-based gun rights groups work to file an injunction to stop state participation.
Additionally, Landreth also pointed out that follow up legislation could be passed to decriminalize or remove state-level prohibitions on firearms restricted or banned at the federal level. This includes, but is not limited to machine guns, short-barreled rifles and shotguns, and heavy weapons under the National Firearms Act of 1934.
“Indiana, for example, just passed a law removing the state-level prohibition on sawed-off shotguns,” Landreth noted. “If Tennessee were to follow up with a similar law, the state would then be prohibited from helping the feds enforce their ban, an important step towards ending it in practice.”