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To the Governor’s Desk: Tennessee Legislature Passes Bill Taking First Step to Block Federal Gun Control

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NASHVILLE, Tenn. (Apr. 13, 2015) – Today, the Tennessee House and Senate passed 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. The vote was 74-20 in the House, and 30-0 in the Senate.

Introduced by Sen. Richard Briggs, Senate Bill 1110 (SB1110) would 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 will now be transmitted to the Governor’s desk for a signature.

“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.

In practice, this would have a significant impact on any proposals to implement an ammunition or other ban with or without the consent of Congress. The way this could play out, said Kopel in a recent report, is that if the federal government were to ban or further restrict any firearms, 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.

And, 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.”

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.”

Rep. Sherry Jones rose on the House floor in opposition to the bill.  She claimed that after passage, should the federal government change law to restrict gun ownership in any way different than it does today, that the state could lose federal funding by not participating in federal enforcement.

“Jones doesn’t have a clue what she’s talking about,” said Landreth. “The Constitution couldn’t be more clear, and even the Supreme Court agreed in the 2012 Sebelius case. The feds cannot require states to help carry out federal programs even under the threat of losing federal funding for other programs.”

NEXT

The governor must sign or veto legislation within 10 days of transmittal (excluding Sunday), or it becomes law without his signature. Should Gov. Haslam sign the bill into law, this would set the stage for further action in Tennessee on both a state and local level.

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