Can Tennessee tell its own law enforcement agencies they may not spend state money helping enforce new federal gun laws?

Subject

Opinion No. 13-24, Use of State Personnel or Resources to Enforce Federal Firearms Laws, March 20, 2013

Plain-English summary

In the weeks after the Sandy Hook shooting in December 2012, a cluster of state legislatures introduced "Second Amendment Preservation" bills aimed at signaling refusal to cooperate with anticipated new federal firearms laws. HB10 in Tennessee was one such bill. It would have prohibited allocation of state or local funds, personnel, or property to enforcement of any federal firearms law (or executive order, rule, or regulation) that took effect on or after January 1, 2013 if the federal measure "adversely affects" the ability of a U.S. citizen to lawfully possess or carry firearms in Tennessee. The bill carved out an exception for federal enforcement that came with its own federal funding.

The AG concluded HB10 was defensible from a facial constitutional challenge. The analysis sat on two foundations.

First, the Tennessee Constitution gives the General Assembly exclusive control over appropriations. Article II, § 24 says no state money shall be expended except pursuant to appropriations made by law. State v. Thompson (1920) and Governor v. McEwen (1844) confirmed that the legislature's control over public funds is supreme and cannot be revised by any other power. So the legislature was acting within its constitutional authority to direct how state funds and personnel would be deployed.

Second, federal anti-commandeering doctrine confirms that the federal government cannot force state governments to participate in implementing federal regulatory programs. Printz v. United States, 521 U.S. 898 (1997), struck down the interim Brady Act provisions that required state and local law enforcement to conduct federal background checks. New York v. United States, 505 U.S. 144 (1992), held the federal government cannot command states to regulate. NFIB v. Sebelius, 132 S.Ct. 2566 (2012), reaffirmed both. Congress can encourage state participation through conditional spending under South Dakota v. Dole, and Congress can preempt state regulation under the Commerce Clause, but Congress cannot conscript states into federal enforcement.

HB10 also did not implicate the Supremacy Clause directly. The bill did not block federal officers from enforcing federal law; it only restricted what Tennessee's own personnel and money would be used for. As the U.S. Supreme Court observed in Hines v. Davidowitz, federal law is supreme where state and federal law conflict, but HB10 did not conflict with the federal firearms statutes themselves — it only addressed the state's own resource allocation.

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 anti-commandeering doctrine has actually strengthened since 2013. Murphy v. NCAA, 138 S.Ct. 1461 (2018), extended Printz and New York to bar federal regulation of state regulation (in the context of sports betting). Anyone analyzing a current "non-cooperation" or "sanctuary" statute under federalism principles should look at Murphy in addition to the Printz / New York / NFIB line. The specific federal firearms landscape has also shifted, with N.Y. State Rifle & Pistol Assn. v. Bruen, 142 S.Ct. 2111 (2022), changing how Second Amendment regulations are reviewed.

Background and statutory framework

HB10 had three operative provisions:

• § (a): No allocation of state or local funds to implement, regulate, or enforce any federal firearms law that takes effect on or after January 1, 2013 and "adversely affects a United States citizen's ability to lawfully possess or carry firearms in this state."
• § (b): No allocation of state or local personnel or property for the same purposes, unless federal funding is provided.
• § (c): Adopts the existing definition of "firearm" from Tenn. Code Ann. § 39-11-106.

The AG read § (a) and § (b) as standard appropriations directives. The General Assembly was telling its own agencies how Tennessee's resources could be used. Under Tenn. Const. art. II, § 24, that's the legislature's exclusive province.

The constitutional question was whether the federal government could override that allocation choice. Under the anti-commandeering doctrine, the answer is no. Printz explicitly 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." The Brady Act's command that state officers conduct federal background checks was unconstitutional.

The federal government has indirect tools. It can attach conditions to federal grants under South Dakota v. Dole, giving states a choice to accept the conditions or decline the funds. It can preempt state regulation when it acts within its enumerated powers. But the federal government cannot, in Printz's words, "commandeer" state legislative or administrative apparatus.

HB10 worked at the state's end of that boundary. It told Tennessee's own employees they could not be used to implement certain federal laws. Federal officers remained free to enforce those laws themselves. If anything, HB10 was the mirror image of the Brady Act provision struck down in Printz: it was the state declining to participate, which is precisely what Printz protected.

The AG noted some caveats. The opinion was a facial challenge analysis. "As applied" challenges might arise if HB10 ended up obstructing federal enforcement in particular settings. Hines v. Davidowitz and Tennessee v. Davis warn that state law cannot prevent federal officers from exercising authority conferred on them by the Constitution. If, for example, HB10 had been used to bar state officers from honoring a federal subpoena or federal court order, that would have raised a different question.

Common questions

What does anti-commandeering mean?

The federal government cannot conscript state governments into implementing federal regulatory programs. The state and federal governments are separate sovereigns; Congress can regulate private conduct (within its enumerated powers) but cannot order state legislatures or state executive officers to enforce federal regulatory schemes. Printz v. United States and New York v. United States are the foundational cases.

Why is this different from the Supremacy Clause?

The Supremacy Clause says federal law trumps state law when they conflict. HB10 did not regulate firearms differently than federal law; it just declined to use state resources to enforce certain federal firearms rules. Federal officers could still enforce those rules themselves. So there was no direct conflict and no Supremacy Clause problem.

Could Tennessee make it illegal for federal officers to enforce federal firearms laws in the state?

No. The Supremacy Clause and the federalism cases (Tennessee v. Davis, Hines v. Davidowitz) hold that states cannot obstruct federal officers in the exercise of federal authority. HB10 did not try to do this. It only addressed Tennessee's own resource allocation.

Could Congress force Tennessee to spend state money on federal firearms enforcement?

Not directly. Congress can attach conditions to federal grants (South Dakota v. Dole), but the state has a genuine choice whether to accept the grant. Congress cannot order a state to expend state funds on federal regulatory programs. Hodel v. Virginia Surface Mining & Reclamation Assn. explicitly stated that "the States are not compelled to expend any state funds" in enforcement of a federal regulatory program.

What about the "adversely affects" trigger?

HB10's restriction kicked in only for federal laws that "adversely affect" lawful possession or carry. The AG didn't analyze what counts as adverse, but that language would have been the practical battleground if HB10 had been enacted and tested. Many federal firearms rules can be characterized as both adverse and not, depending on whose interests are being measured.

Citations

Federal cases: Printz v. United States, 521 U.S. 898 (1997); New York v. United States, 505 U.S. 144 (1992); National Federation of Independent Business v. Sebelius, 132 S.Ct. 2566 (2012); South Dakota v. Dole, 483 U.S. 203 (1987); Hodel v. Virginia Surface Mining & Reclamation Assn., 452 U.S. 264 (1981); Hines v. Davidowitz, 312 U.S. 52 (1941); Tennessee v. Davis, 100 U.S. 257 (1880). Tennessee cases: State v. Thompson, 221 S.W. 491 (Tenn. 1920); Governor v. McEwen, 24 Tenn. (5 Hum.) 241 (1844); Waters v. Farr, 291 S.W.3d 873 (Tenn. 2009). Tennessee Constitution: art. II, § 24 (appropriations). Statute: Tenn. Code Ann. § 39-11-106 (firearm definition).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-024.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

March 20, 2013

Opinion No. 13-24

Use of State Personnel or Resources to Enforce Federal Firearms Laws

QUESTION

Is House Bill 10/Senate Bill 40 of the 108th Tennessee General Assembly, 1st Sess. (2013) (hereinafter "HB10") constitutionally defensible?

OPINION

Yes, HB10 is defensible from a facial constitutional challenge.

ANALYSIS

HB10 would preclude the allocation of state or local funds "to the implementation, regulation or enforcement of any federal law, executive order, rule or regulation that becomes effective on or after January 1, 2013, that adversely affects a United States citizen's ability to lawfully possess or carry firearms in this state." HB10 § (a), 108th Tenn. Gen. Assembly, 1st Sess. (2013). HB10 also would restrict the allocation of state or local personnel or property for the same purposes "unless federal funding for such implementation, regulation or enforcement is provided to the state or political subdivision." Id. § (b). HB10 maintains the current statutory definition for "firearm" found at Tenn. Code Ann. § 39-11-106. Id. § (c).

This nation's federal system of government leaves the allocation of State funds and resources within the exclusive control of the government of the State of Tennessee. See Tenn. Const. art. II, § 24 (stating that "[n]o public money shall be expended [by the State] except pursuant to appropriations made by law"). See also State v. Thompson, 221 S.W. 491, 494 (Tenn. 1920) (recognizing that "[t]he exclusive control of the expenditure of the public moneys is vested in the legislative branch of the government"); Governor v. McEwen 24 Tenn. (5 Hum.) 241, 284 (1844) (observing that "the Legislature of the State, in the absence of constitutional prohibition, is the proper guardian and protector of its funds, no matter for what purpose appropriated, and that, as such, it is its duty to watch over them, to see that they are properly secured, vested, and applied, as the law may direct . . . This power, on the part of the Legislature, is supreme, and, when exercised, can not be revised or called in question by any other power whatever."). Accordingly, it is within the province of the General Assembly to determine the level of state resources allocated to the enforcement of firearms regulations in Tennessee.

This Office is unaware of any current federal law seeking to directly utilize State personnel or resources to implement or enforce the provisions of any federal firearms laws, executive orders, rules, or regulations. As the United States Supreme Court recently reiterated, principles of federalism prohibit "federal legislation that commandeers a State's legislative or administrative apparatus for federal purposes." National Federation of Independent Business v. Sebelius, 132 S.Ct. 2566, 2602 (2012) (citing Printz v. United States, 511 U.S. 898, 933 (1997) and New York v. United States, 505 U.S. 144, 174-75 (1992)). As the Court explained:

"[T]he Constitution simply does not give Congress the authority to require the States to regulate." New York [v. United States], 505 U.S., at 178, 112 S.Ct. 2408. That is true whether Congress directly commands a State to regulate or indirectly coerces a State to adopt a federal regulatory system as its own.

National Federation of Independent Business, 132 S.Ct. at 2602.

The United States Supreme Court's decision in Printz v. United States is particularly relevant to the question posed. In Printz, the Supreme Court considered the constitutionality of certain interim provisions of the Brady Handgun Violence Prevention Act's (hereinafter "Brady Act") amendments to the federal Gun Control Act of 1968, requiring state and local law enforcement officers to conduct background checks on prospective handgun purchasers and to perform certain related tasks to determine whether an individual's possession of a handgun was contrary to federal law. Printz, 511 U.S. at 902. The precise issue before the Court was the constitutionality of "the forced participation of the State's executive in the actual administration of a federal program." Id. at 918.

The Supreme Court found the Brady Act's requirement of State participation in implementing the Act unconstitutional, stating:

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 policymaking 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.

Id. at 935.

The Supreme Court has recognized, however, that Congress has the "ability to encourage a State to regulate in a particular way" and may "hold out incentives to the States as a method of influencing a State's policy choices." New York, 505 U.S. at 166. For example, "under Congress' spending power, 'Congress may attach conditions on the receipt of federal funds.'" Id. at 167 (quoting South Dakota v. Dole, 483 U.S. 203, 206 (1987)). Additionally, "where Congress has the authority to regulate private activity under the Commerce Clause, we have recognized Congress' power to offer States the choice of regulating that activity according to federal standards or having state law pre-empted by federal regulation." Id. (citations omitted).

HB10 also does not implicate Supremacy Clause concerns under the United States Constitution because HB10 would not impede individuals with federal authority from enforcing federal laws; rather, HB10 addresses the manner in which the State will allocate funds, personnel, and property in connection with enforcement of such laws. See Hines v. Davidowitz, 312 U.S. 52, 67 (1941) (stating "where [the federal government] acts, and the state also acts on the same subject, 'the act of congress, . . . is supreme; and the law of the state, though enacted in the exercise of powers not controverted, must yield to it.'") (footnote omitted); 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").

In the absence of specific factual situations or federal firearms laws to review, this Office cannot effectively anticipate situations in which "as applied" challenges may arise concerning HB10. See generally Waters v. Farr, 291 S.W.3d 873, 922-23 (Tenn. 2009) (detailing distinctions between "facial" and "as applied" constitutional challenges). Accordingly, any "as applied" challenges are outside the scope of this opinion.

In sum, HB10, which restricts State personnel and resources from being used to directly implement certain federal programs, is defensible from a facial constitutional challenge.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

MICHELLE L. CONSIGLIO-YOUNG
Assistant Attorney General

Requested by:
Representative Jeremy Faison
State Representative
301 6th Avenue North
Suite 202, War Memorial Building
Nashville, Tennessee 37243