Tuesday, May 4, 2021

Second Amendment sanctuary bill passes Tennessee House, heads to Lee. He should veto it.

(The Center Square) May 4, 2021 – The Tennessee House voted Monday evening to make the state a Second Amendment sanctuary. The House adopted Senate Bill 1335, which passed last week in the Senate. 

It “affirms that any law, treaty, executive order, rule, or regulation of the United States government” that violates the Second Amendment is unenforceable. That violation would have to be determined by either the Tennessee or U.S. Supreme Court.  Any official that would then attempt to enforce the unconstitutional law would then be subject to ouster. The bill now will head to Gov. Bill Lee’s desk. 

“Contrary to the messaging that’s out there, Democrats are not for taking your guns away from you,” Rep. Antonio Parkinson, D-Memphis, said while supporting the bill. “So let’s end that bad messaging that y’all are putting out there about us.” 

Parkinson’s lone complaint about the bill was it didn't include an amendment, which was withdrawn, preventing gun buybacks. “It’s only law-abiding citizens who show up,” Parkinson said. “It’s exploitation of poor people.” 

Rep. Bo Mitchell, D-Nashville, said he was hoping the legislation would not affect any federal ban on bump stocks. Bill sponsor Rep. Scotty Campbell, R-Mountain City, said what would be affected by the bill could be determined only by either supreme court.

“I know what I would like to see," Campbell told Mitchell. "That would be much different than what you would see.” Mitchell said he would like to see bump stocks banned, especially after the Waffle House shooting in Antioch in 2018 that killed four people and injured four others, and wouldn’t want this bill to stand in the way of enforcing that ban. Mitchell also said he felt the court would take at least three years to make a ruling on something like a new law. 

“We don’t want to bury several more people because of bump stocks,” Mitchell said. “I hope every law enforcement agency in this state does their job and enforces that ban.” While Senate discussion of the bill centered around whether the bill was nullification of federal law and whether that was possible. The House did not discuss nullification.

Rod's Comment:  I have reservations about this bill.  If the bill stated that violations would be determined by the U.S. Supreme Court, I would support it. If Congress passes a gun restriction and the Supreme Court says it violates the Second Amendment, and the administration attempts to enforce it anyway, it would be responsible and proper to refuse to enforce the law in Tennessee. That would be supporting the Constitution. That is much different, however than if the Tennessee Supreme Court finds that it violates the Constitution. 

To declare a federal law "null, void, and unenforceable in this state," is nullification regardless of whether one calls it that or not.  There is no legal basis for the theory of nullification.  The Supremacy Clause of the Constitution makes it clear that federal law is superior to state law.  Article III of the Constitution says the federal judiciary has the final power to interpret the Constitution.  Clearly, the power to determine the constitutionality of federal laws lies with the federal courts, not the states.  States tried that argument prior to civil war and that should have laid that theory to rest, but it was argued again in the era of forced integration in the South and still comes up from time to time.  In 2018 California used the nullification theory to oppose a Trump immigration policy

There is some wiggle room for a state to oppose a federal law without crossing the line into nullification.  States can simply ignore federal law or refuse to cooperate with federal law enforcement agencies.  We see this in sanctuary cities that fail to cooperate with federal authorities in the enforcement of immigration laws and in state legalization of marijuana. Tennessee could choose to not enforce federal gun control laws; that is much different than saying a law is unenforceable. 

Governor Lee should veto SB1335. 

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