NASHVILLE, Tenn. (March 25, 2021) – On Tuesday, a Tennessee House subcommittee passed a bill titled the Tennessee Second Amendment Sanctuary Act. But the bill doesn’t create a sanctuary for anything, and would have no practical effect at all.
Rep. Scotty Campbell (R-Mountain City) introduced House Bill 928 (HB928) on Feb. 11. As introduced, the proposed law declared, “A law, treaty, executive order, rule, or regulation of the United States government that violates the Second Amendment of the United States Constitution is null, void, and unenforceable in this state.” The legislation went on to prohibit the state or a political subdivision of the state from “using any public funds, personnel, or property to enforce, administer, or cooperate” with the enforcement of such an act.
In effect, this is nothing but a circular argument. It basically declares that an unconstitutional law is unconstitutional. As for the provisions to prohibit enforcement of acts that violate the Second Amendment, the legislation lacked any mechanism to determine unconstitutionality. In practice, similar legislation that has passed has resulted in no enforcement change, as law enforcement agencies almost always defer any questions of constitutionality to the court system.
Rather than fixing the legislation, Campbell introduced an amendment in the House Civil Justice subcommittee yesterday that made the bill even worse.
Under the amended language, the U.S. Supreme Court or the Tennessee Supreme Court must make a determination of unconstitutionality before any enforcement prohibition would go into effect. As introduced, there was at least a slight chance that on-the-ground officers would use their own discretion on constitutionality and not enforce something.
By requiring a court determination, the amended bill removes all discretion and tells law enforcement to continue enforcing all federal gun control, no matter what it is, until a court gives them permission to stop. Law enforcement agencies will certainly use this type of language as an excuse to cooperate fully with enforcement whenever they can.
The subcommittee passed the amended version of HB928. If it is enacted, it will literally do nothing. Another committee member brought this up during the hearing.
Rep. Johnny Ray Clemmons (R-Nashville) asked the pertinent question: “Why is this bill necessary?”
As he pointed out, something deemed unconstitutional by a court wouldn’t be enforced anyway.
Campbell admitted that the proposed law was nothing but window-dressing, saying, “My initial goal was to affirm and put into our code exactly where Tennessee stands, so, in case anybody needs to know that, that they could consult the TCA in that regard.”
Even this “affirmation” is unnecessary. A nearly identical bill passed into law back in 2015. Since then, it has had absolutely no effect or impact in practice – because it does nothing.
Campbell hemmed and hawed and said he drafted the amendment at the request of another subcommittee member. After this non-answer, Clemmons said he was still a bit confused.
“If something is held unconstitutional by the Supreme Court, it is going to be stayed necessarily and not enforced, so, I guess the bill as amended — I’m trying to figure out exactly what it’s going to do in addition to what would already be done.”
There was never an answer to Clemmon’s question because there is no answer. The proposed law would literally do nothing.
“We’re not sure if these legislators just don’t know what they’re doing, or if they’re grandstanding and hoping YOU don’t know this does nothing,” Tenth Amendment Center executive director Michael Boldin said. “Either way, it’s very damaging to efforts to actually protect the Second Amendment from federal attacks.”
The state of Tennessee does not need permission from any court to end enforcement of federal gun control. The legislatute can ban enforcement of specific acts anytime it wants for any reason. No determination of constitutionality is necessary. It can ban enforcement of all federal gun control simply because it’s Tuesday and there’s snow on the ground. The Supreme Court agrees.
“If Tennessee legislators were serious about creating a ‘Second Amendment Sanctuary’ state, they wouldn’t be waiting for permission. They’d end state and local participation in federal gun control right now,” Boldin said.
The courts have already given the states the “permission” they need to opt out of federal enforcement schemes. Refusal to cooperate with federal enforcement rests on a well-established legal principle known as the anti-commandeering doctrine.
Simply put, the federal government cannot force states to help implement or enforce any federal act or program. The anti-commandeering doctrine is based primarily on five Supreme Court cases dating back to 1842. Printz v. U.S. serves as the cornerstone.
“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. 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. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty”
No determination of constitutionality is necessary to invoke the anti-commandeering doctrine. State and local governments can refuse to enforce federal laws or implement federal programs whether they are constitutional or not.
The federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts – including gun control. By simply withdrawing this necessary cooperation, states and localities can nullify many federal actions in effect. As noted by the National Governors’ Association during the partial government shutdown of 2013, “states are partners with the federal government on most federal programs.”
Based on James Madison’s advice for states and individuals in Federalist #46, a “refusal to cooperate with officers of the Union” represents an extremely effective method to bring down federal gun control measures because most enforcement actions rely on help, support and leadership from state and local governments.
Fox News senior judicial analyst Judge Andrew Napolitano agreed. In a televised discussion on the issue, he noted that a single state taking this step would make federal gun laws “nearly impossible” to enforce.
“Partnerships don’t work too well when half the team quits,” Boldin said. “By withdrawing all resources and participation in federal gun control, states and even local governments can help bring these unconstitutional acts to their much-needed end.”
HB928 will move to the full House Civil Justice Committee where can still be further amended so it actually does something before going to the House floor. A hearing is scheduled for March 31.
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