Could the Tennessee legislature pass a law declaring federal firearms regulations unenforceable inside the state?

Subject

Opinion No. 13-14, Tennessee Legislation Declaring Unenforceable Federal Firearms Laws, February 22, 2013

Plain-English summary

A state senator and two House committee chairs asked the AG to evaluate the constitutionality of two firearms-nullification bills moving through the 108th General Assembly. HB42 (companion of SB100) would have added a section to Title 39, Chapter 17, Part 13 declaring "unenforceable" any federal firearms law implemented on or after January 1, 2013, prohibiting state employees and dealers from attempting to enforce such laws, and creating a Class A misdemeanor for federal officials and agents who enforce them. SB250 (companion of HB248) would have amended Title 4, Chapter 54 to declare that firearms manufactured and kept in Tennessee are "not within powers of the federal government" and that any federal "action" (defined to include statutes, regulations, executive orders, and judicial opinions) inconsistent with the chapter is "null and void." SB250 also created a new Class B felony for any person who knowingly enforces or attempts to enforce prohibited federal action.

The AG concluded both bills would violate the Supremacy Clause of the U.S. Constitution. The opinion walked through three distinct constitutional problems:

1. The Supremacy Clause makes valid federal law the law of the land. Under U.S. Const. art. VI, cl. 2 and the long line of cases from Gibbons v. Ogden through Arizona v. United States, state law is "nullified to the extent that it actually conflicts with constitutionally authorized federal law." The bills explicitly aimed to create such a conflict by declaring federal firearms regulations unenforceable in Tennessee. Howlett v. Rose holds that states are not "free to nullify for their own people the legislative decisions that Congress has made on behalf of all the People."

2. The constitutionality of a federal law is for the federal judiciary to decide, not a state legislature. The bills declared certain federal firearms laws unconstitutional for, among other reasons, exceeding the commerce power. But under Marbury v. Madison and Richardson v. Tennessee Board of Dentistry, "the sole obligation of the judiciary to interpret the law and determine the constitutionality of actions taken by the other two branches of government." Cooper v. Aaron makes clear that no state legislator can refuse to comply with a federal court judgment.

3. State criminal penalties cannot reach federal officers performing federal duties or state citizens trying to comply with federal law. The doctrine of intergovernmental immunity, going back to McCulloch v. Maryland and developed through Johnson v. Maryland, Tennessee v. Davis, In re Neagle, and Hancock v. Train, immunizes federal officers from state interference with the performance of their federal duties. The bills' Class A misdemeanor (HB42) and Class B felony (SB250) provisions for federal officers thus would not stand. Similarly, criminalizing the enforcement activities of state citizens (firearm dealers) with federal compliance obligations would make compliance with both regimes impossible, and that's a textbook Supremacy Clause violation.

In a footnote the AG flagged that SB250 could be read to apply to federal action already taken. The federal government already imposes taxes on firearm transfers, requires manufacturer registration, bans certain firearms and ammunition, regulates sales to specified persons, and requires background checks. SB250's preemption-by-state-statute would conflict with that whole framework and be invalid.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Supremacy Clause framework the AG applied has been reaffirmed repeatedly by the U.S. Supreme Court. Tennessee has continued to pass firearms-related legislation, and other states have continued to debate nullification-style bills, but the core legal architecture (states cannot declare validly enacted federal law inoperative, cannot criminalize federal officers performing federal duties, and cannot make state citizens choose between violating state or federal law) has not changed.

Background and statutory framework

The Supremacy Clause is straightforward: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land." Three lines of doctrine fill that out:

Preemption. Federal law preempts state law in three configurations: express preemption (Congress says so in the statute), field preemption (Congress occupies the entire regulatory area), and conflict preemption (compliance with both is impossible, or state law obstructs federal objectives). Hines v. Davidowitz, Rice v. Santa Fe Elevator, Florida Lime & Avocado Growers, and Hillsborough County v. Automated Medical Laboratories lay out the standard test. Arizona v. United States applied that framework in 2012 to strike down Arizona's immigration enforcement statute.

Intergovernmental immunity. The Supremacy Clause immunizes federal officers from state interference with federal duties. McCulloch v. Maryland (state cannot tax a federal bank into uselessness), Johnson v. Maryland (state cannot require federal officials to satisfy state competency requirements before performing federal duties), Tennessee v. Davis and In re Neagle (state criminal law cannot reach a federal officer's authorized federal duties).

Judicial review. Marbury v. Madison makes it the federal judiciary's job to decide whether federal law is constitutional. A state legislature's declaration that a federal law is unconstitutional is not legally effective. Cooper v. Aaron tells state officers they cannot "war against the Constitution" by ignoring federal judicial decisions.

The two Tennessee bills tried to operate in the space where all three doctrines apply. HB42's Class A misdemeanor reached federal officials directly. SB250's Class B felony reached "any person," sweeping in federal officials, state agencies, and private citizens (including firearm dealers required by federal law to do background checks). And both bills purported to declare federal law null and void within Tennessee's borders, which is the kind of nullification the Court has rejected since the 1830s.

Common questions

Did Tennessee ever pass these bills?

Neither HB42 nor SB250 was enacted as written. The AG's opinion was issued during legislative consideration, and the bills went through various committee processes after the opinion came out. Whatever Tennessee firearms legislation eventually emerged differed materially from what the AG analyzed.

What about the Tenth Amendment "anti-commandeering" doctrine?

The opinion didn't dwell on it, but the anti-commandeering doctrine of New York v. United States and Printz v. United States says the federal government cannot force states to enact or enforce federal regulatory programs. That doctrine cuts the other way from these bills: it protects states from being forced to enforce federal law, but it does not let states actively prevent federal officials from enforcing federal law. The AG's analysis of intergovernmental immunity addresses the active-interference problem directly.

Couldn't Tennessee at least decline to use its own police to enforce federal firearms laws?

That's a different question, and the answer would likely be yes under the anti-commandeering doctrine. A state can decline to use state resources to assist federal enforcement. What it cannot do is criminalize federal officers for performing their own duties or block dealers from complying with federal law. The bills went well beyond declining to assist; they tried to actively forbid enforcement.

What about the "in-state manufacture, in-state use" theory?

SB250's section 2 declared that firearms manufactured and used in Tennessee "have not traveled in interstate commerce." Several states experimented with similar "firearms freedom acts" around that time. The Ninth Circuit, in Montana Shooting Sports Ass'n v. Holder (later decisions), rejected a similar theory, citing the breadth of the federal commerce power post-Gonzales v. Raich. The AG's opinion didn't need to reach this theory directly because the bills' nullification and criminalization features were already fatal under the Supremacy Clause.

Could Tennessee at least pass a sense-of-the-legislature resolution objecting to federal firearms laws?

Yes. A resolution expressing legislative disagreement with federal policy is constitutionally permissible because it has no binding legal effect. The constitutional problem with these bills was that they purported to be enforceable statutes (one creating a misdemeanor, the other a felony) that would override federal law and criminalize federal compliance. A non-binding resolution does neither.

What did the AG mean by "intergovernmental immunity"?

It's the doctrine that the federal and state governments each have immunity from interference by the other in the performance of their core sovereign functions. The federal-side version, which applies here, prevents states from using state law (including state criminal law) to obstruct federal officers performing federal duties. The AG cited Hancock v. Train and Arizona v. Bowsher for the modern application.

Citations

• U.S. Const. art. VI, cl. 2 (Supremacy Clause)
• Arizona v. United States, 567 U.S. 387 (2012) (preemption framework applied to state immigration statute)
• Florida Lime & Avocado Growers v. Paul, 373 U.S. 132 (1963) (conflict preemption when "compliance with both . . . is a physical impossibility")
• Hines v. Davidowitz, 312 U.S. 52 (1941) (obstacle preemption)
• McCulloch v. Maryland, 17 U.S. 316 (1819) (state cannot tax federal instrumentality)
• In re Neagle, 135 U.S. 1 (1890) (federal officer immune from state criminal liability for authorized federal acts)
• Tennessee v. Davis, 100 U.S. 257 (1880) (state cannot obstruct federal officers)
• Howlett v. Rose, 496 U.S. 356 (1990) (states cannot nullify federal law for their own people)
• Marbury v. Madison, 5 U.S. 137 (1803) (judicial review)
• Cooper v. Aaron, 358 U.S. 1 (1958) (no state officer can war against the Constitution)
• Richardson v. Tenn. Bd. of Dentistry, 913 S.W.2d 446 (Tenn. 1995) (sole judicial obligation to determine constitutionality)
• 26 U.S.C. §§ 5811, 5821, 5841 (federal firearms taxes and registration)
• 18 U.S.C. § 922 (federal firearms prohibitions)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-014.pdf

Original opinion text

S T A T E O F T E N N E S S E E
OFFICE OF THE
ATTORNEY GENERAL
PO BOX 20207
NASHVILLE, TENNESSEE 37202

February 22, 2013

Opinion No. 13-14

Tennessee Legislation Declaring Unenforceable Federal Firearms Laws

QUESTION

Are Senate Bill 0100/House Bill 0042 (hereinafter "HB42") and Senate Bill 0250/House Bill 0248 (hereinafter "SB250") of the 108th Tennessee General Assembly constitutional?

OPINION

No. Both HB42 and SB250 if enacted as proposed would violate the Supremacy Clause of the United States Constitution.

ANALYSIS

HB42 and SB250 (collectively referred to as the "Bills") propose to amend the Tennessee Code relative to certain federal firearms laws. HB42 would add a new section to Title 39, Chapter 17, Part 13, declaring "unenforceable" any federal law implemented on or after January 1, 2013, that attempts to (1) ban or restrict ownership of certain firearms, firearm accessories, or ammunition or (2) require that these items be registered in any manner. HB42, 108th Leg., 1st Sess. § 1(a) (Tenn. 2013). Subsection (b) prohibits state employees and officials, and dealers selling firearms in the state, from attempting to enforce such laws. Id. § 1(b). In subsection (c), a new crime — a Class A misdemeanor — is created that penalizes federal officials, agents, and employees for enforcing the laws "upon a firearm, a firearm accessory, or ammunition that is owned or manufactured commercially or privately in this state and that remains exclusively within the borders of this state." Id. § 1(c).

SB250 proposes similar amendments to Title 4, Chapter 54 of the Code. SB250, 108th Leg., 1st Sess. (Tenn. 2013). Section 2 declares that firearms that are manufactured in this state and remain within its borders "have not traveled in interstate commerce and are otherwise not within powers of the federal government." Id. § 2. Section 5 states that any federal action — broadly defined as including acts of congress, federal rules or regulations, executive orders, and judicial opinions — that is prohibited by the chapter and that relates to firearms whether made in Tennessee or not is "null and void and of no effect in this state." Id. § 5(a); see id. § 1 (defining "federal action"). The prohibitions are spelled out in the following subsection and include regulation of the ownership, transfer, possession or manufacture of firearms, firearm accessories, and ammunition; registration and tracking requirements; and federal taxes and fees that are payable to any government entity. Id. § 5(b). Like HB42, SB250 creates a new offense for "any person" who knowingly enforces or attempts to enforce prohibited federal action. Id. § 6. Here, however, the crime is a Class B felony. Id.

The Supremacy Clause of the United States Constitution provides: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land." U.S. Const. art. VI, cl. 2. Pursuant to this provision, state law is nullified to the extent that it actually conflicts with constitutionally authorized federal law. See Arizona v. United States, 132 S. Ct. 2492, 2501 (2012). Such a conflict arises when "compliance with both federal and state regulations is a physical impossibility," Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143 (1963), or when state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress," Hines v. Davidowitz, 312 U.S. 52, 67 (1941). As the United States Supreme Court has explained:

It is a familiar and well-established principle that the Supremacy Clause, U.S. Const., Art. VI, cl. 2, invalidates state laws that "interfere with, or are contrary to," federal law. Gibbons v. Ogden, 9 Wheat. 1, 211, 6 L.Ed. 23 (1824) (Marshall, C.J.). Under the Supremacy Clause, federal law may supersede state law in several different ways. First, when acting within constitutional limits, Congress is empowered to pre-empt state law by so stating in express terms. Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977). In the absence of express pre-emptive language, Congress' intent to pre-empt all state law in a particular area may be inferred where the scheme of federal regulation is sufficiently comprehensive to make reasonable the inference that Congress "left no room" for supplementary state regulation. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). Pre-emption of a whole field also will be inferred where the field is one in which "the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject." Ibid.; See Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581 (1941).

Even where Congress has not completely displaced state regulation in a specific area, state law is nullified to the extent that it actually conflicts with federal law. Such a conflict arises when "compliance with both federal and state regulations is a physical impossibility," Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143, 83 S.Ct. 1210, 1217-1218, 10 L.Ed.2d 248 (1963), or when state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress," Hines v. Davidowitz, supra, 312 U.S., at 67, 61 S.Ct., at 404. See generally Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 698-699, 104 S.Ct. 2694, 2700, 81 L.Ed.2d 580 (1984).

We have held repeatedly that state laws can be pre-empted by federal regulations as well as by federal statutes. See, e.g., Capital Cities Cable, Inc. v. Crisp, supra, at 699, 104 S.Ct., at 2700; Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 U.S. 141, 153-154, 102 S.Ct. 3014, 3022-3023, 73 L.Ed.2d 664 (1982); United States v. Shimer, 367 U.S. 374, 381-383, 81 S.Ct. 1554, 1559-1561, 6 L.Ed.2d 908 (1961). Also, for the purposes of the Supremacy Clause, the constitutionality of local ordinances is analyzed in the same way as that of statewide laws. See, e.g., City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973).

Hillsborough County, Fla. v. Automated Medical Laboratories, Inc., 471 U.S. 707, 713 (1985).

Under the doctrine of intergovernmental immunities, the Supremacy Clause also provides immunity to all federal officers from state interference with acts that are necessary and proper to the accomplishment of their federal duties. See, e.g., Hancock v. Train, 426 U.S. 167, 178-80 (1976); State of Arizona v. Bowsher, 935 F.2d 332, 334 (D.C. Cir.), cert. denied, 502 U.S. 981 (1991); United States v. Ferrara, 847 F.Supp. 964, 968 (D. D.C. 1993), aff'd 54 F.3d 825 (D.C. Cir. 1995).

In cases in which a state attempts to regulate the federal government directly, the inquiry focuses on whether state action threatens to interfere with or impair the efficiency of federal agencies in the performance of their functions. See Nat'l Bank v. Kentucky, 76 U.S. (9 Wall.) 353, 362 (1869). Thus, for example, in McCulloch v. Maryland, the United States Supreme Court struck down a state tax on a national bank. McCulloch, 17 U.S. (4 Wheat.) 316, 436 (1819). Although the tax did not literally conflict with the federal statute creating the bank, its imposition threatened to hinder the functioning of a national institution:

[N]o principle . . . can be admissible, which would defeat the legitimate operations of a supreme government. It is of the very essence of supremacy, to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments, as to exempt its own operations from their own influence.

Id. at 427; see also Johnson v. Maryland, 254 U.S. 51, 57 (1920) ("It seems to us that the immunity of the instruments of the United States from state control in the performance of their duties extends to a requirement that they desist from performance until they satisfy a state officer upon examination that they are competent for a necessary part of them . . . ."). Accordingly, if direct state regulation of federal actors threatens to compromise legitimate federal interests in the efficient operation of government or the execution of federal policy, it is preempted. See, e.g., Tennessee v. Davis, 100 U.S. 257, 263 (1880) ("No State government can exclude [the federal government] from the exercise of any authority conferred upon it by the Constitution [or] obstruct its authorized officers against its will. . . ."); see also In re Neagle, 135 U.S. 1, 75 (1890) ("[I]f the prisoner is held in the state court to answer for an act which he was authorized to do by the law of the United States, which it was his duty to do as marshal of the United States, and if in doing that act he did no more than what was necessary and proper for him to do, he cannot be guilty of a crime under the law of the State of California.").

The Bills are intended to create an "actual conflict" with federal law. See Florida Lime, 373 U.S. at 141. In the event that the federal government lawfully promulgates rules respecting the sale, registration, or taxation of firearms, Tennessee lacks authority to render them ineffective within its borders, for the States are not "free to nullify for their own people the legislative decisions that Congress has made on behalf of all the People." Howlett By and Through Howlett v. Rose, 496 U.S. 356, 383 (1990). While the Bills themselves declare that certain federal firearms regulations are unconstitutional as, for example, by exceeding the scope of the commerce power, see SB250 § 2, the responsibility for that determination rests with the judiciary, not a state legislature. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) ("It is emphatically the province and duty of the judicial department to say what the law is."); Richardson v. Tenn. Bd. of Dentistry, 913 S.W.2d 446, 453 (Tenn. 1995) ("Since the United States Supreme Court decision in Marbury v. Madison, it has been the sole obligation of the judiciary to interpret the law and determine the constitutionality of actions taken by the other two branches of government." (citation omitted)). Absent such a judicial determination — and SB250 lists "judicial opinions" among the "federal action" that it proscribes, SB § 1 — federal law is effective in Tennessee. "If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery . . . ." Cooper v. Aaron, 358 U.S. 1, 18 (1958) (quoting United States v. Peters, 9 U.S. (5 Cranch) 115, 136 (1809), and further stating, "No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it").

Nor may a state legislature accomplish the nullification of federal firearms regulation indirectly, either by criminalizing the activities of federal officers, see Neagle, 135 U.S. at 75, or by criminalizing actions of state citizens, such as firearm dealers, who have enforcement obligations under federal law, since to do so would make compliance with both federal and state regulations impossible, see United States v. Arizona, 132 S. Ct. at 2051. In either instance, the Bills' provisions would directly threaten to frustrate federal policy objectives and to impair the ability of federal actors to carry them out. Consequently, the Bills violate the Supremacy Clause of the United States Constitution.

[Footnote: SB250 could be read to apply to "federal action" already taken. SB250 §§ 1, 5(b). The federal government already imposes taxes on the transfer and making of firearms, 26 U.S.C. §§ 5811, 5821, requires manufacturers to register firearms, id. § 5841, bans the manufacture or transfer of certain firearms and ammunition, see, e.g., 18 U.S.C. § 922(a)(7) (armor piercing ammunition), (o)(1) (machine guns), (p)(1) (firearms not detectable by metal detector or x-ray), and further regulates the sale of firearms to certain persons, see, e.g., id. § 922(d) (sale to felons and certain others); see also, e.g., id. § 922(t)(1) (requiring licensed manufacturers and dealers to conduct background checks prior to transfer). Because section 5 of SB250, as enforced through section 6, would actually conflict with this non-exhaustive list of extant federal laws, it would be preempted by them.]

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

JAMES E. GAYLORD
Assistant Attorney General

Requested by:

Senator Brian Kelsey
Chairman, Senate Judiciary Committee
301 6th Avenue North
Suite 7, Legislative Plaza
Nashville, TN 37243

Representative Eric Watson
Chairman, House Criminal Justice Committee
301 6th Avenue North
Suite 112, War Memorial Building
Nashville, TN 37243

Representative Tony Shipley
Chairman, House Criminal Justice Subcommittee
301 6th Avenue North
Suite 114, War Memorial Building
Nashville, TN 37243