Introduced by Rep. John Windle and Rep. Mark Pody, HB 2389 and SB2395 by Sen. Paul Bailey would prohibit law enforcement officers from enforcing provisions of international law and treaties that limit gun rights as specified in Article I, Section 26 of the Tennessee State Constitution.
By T.J. Martinell
It reads, in part: “On or after July 1, 2016 no personnel or property of this state, or any political subdivision of this state, shall be allocated to the implementation, regulation, or enforcement of any international law or treaty regulating the ownership, use, or possession of firearms, ammunition, or firearm accessories, if the use of personnel or property would result in the violation of another Tennessee statute, Tennessee common law, or the Constitution of Tennessee.”
Article I, Section 26 of the state Constitution states “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.”
If passed into law, the legislation would require further action. It remains unclear how the state would determine whether a given act qualified for non-cooperation. There is no mechanism established in the bill to determine where an international law or treaty violates the constitution of Tennessee.
The Tennessee legislature could make the bills immediately effective by removing the requirement for a determination of state constitutionality. Instead, simply prohibit cooperation with any international law or treaty restricting the right to keep and bear arms. This approach removes the need for a determination of constitutionality and would have immediate effect on such gun control effort.
‘Refusal to cooperate’
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 effectively method to bring down federal gun control measures because most enforcement actions rely on help, support and leadership from the states.
Fox News senior judicial analyst Andrew Napolitano, a former judge, agrees. 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.
The federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts – including gun laws. As noted by the National Governor’s Association during the partial government shutdown of 2013, “states are partners with the federal government on most federal programs.”
“Partnerships don’t work too well when half the team quits,” said Michael Boldin of the Tenth Amendment Center. “By withdrawing all resources and participation in federal gun control schemes, the states can effectively bring them down.”
The legislation 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 four Supreme Court cases dating back to 1842. Printz v. US 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.
HB2389 was referred to the Civil Justice Subcommittee and SB2395 was referred to the Senate Judiciary committee. The bills will need to pass by a majority vote before moving on for further action.
Tennessee residents are strongly urged to contact all members of the committee – letting them know they’d like to see a YES vote on HB2389 and SB2395.
This essay first appeared at Shall Not Be Infringed.