Could Tennessee pass a law declaring federal firearms regulations void within the state?

Subject

Opinion No. 14-24, Constitutionality of Legislation Amending the "Tennessee Firearms Freedom Act", February 27, 2014

Plain-English summary

Senator Brian Kelsey asked the Tennessee AG to evaluate Senate Bill 1607 of the 108th General Assembly, a proposed amendment to the state's Firearms Freedom Act (Tenn. Code Ann. Title 4, Chapter 54). The bill would have gone further than the existing Act: it would have declared that any firearm, firearm accessory, or ammunition "present in this state or owned or possessed by an individual or entity in this state" is not subject to any federal enactment or federal enforcement action; declared "[a]ny federal enactment" void as applied to such items; and created civil liability (with both actual and statutory damages, and public and private rights of action) for anyone who tried to enforce the federal law against those items.

The AG's answer was short: no, the bill was not constitutional. The opinion referenced and incorporated Tennessee AG Op. 13-14 (Feb. 22, 2013), which had reached the same conclusion about substantially similar earlier legislation. The bill set up a conflict with federal firearms law that would make compliance with both state and federal regulations a "physical impossibility," which is the classic test from Florida Lime and Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963), for preemption under the Supremacy Clause (U.S. Const. art. VI, cl. 2). When a state law tells a federal officer not to enforce federal law within the state, and creates civil liability for doing so, that state law cannot stand alongside the federal statute. The Supremacy Clause resolves the conflict in favor of federal law.

This opinion did not break new ground; it confirmed that the AG's 2013 analysis applied with equal force to SB 1607. It is part of a series of Tennessee AG opinions on so-called "nullification" or "firearms freedom" bills.

Currency note

This opinion was issued in 2014. 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.

Common questions

What did SB 1607 try to do?

It would have amended the existing Tennessee Firearms Freedom Act (Tenn. Code Ann. Title 4, Chapter 54) to declare three things: (1) any firearm, accessory, or ammunition present in Tennessee or owned by anyone in Tennessee is not subject to federal enactment or federal enforcement; (2) federal enactments purporting to regulate those items are void in Tennessee; and (3) anyone who violates the amended act, presumably including federal officers attempting enforcement, is civilly liable for actual and statutory damages, with both public and private rights of action available.

Why did the AG conclude the bill was unconstitutional?

Because of the Supremacy Clause (U.S. Const. art. VI, cl. 2). When a state law tells citizens and officials not to comply with federal law within the state, and creates civil penalties for enforcing the federal law, the state law has created a direct conflict with federal law. Under conflict preemption doctrine, a state law that makes compliance with both state and federal regulations "a physical impossibility" cannot stand. The U.S. Supreme Court articulated that test in Florida Lime and Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963).

Was this a new conclusion?

No. The AG had reached the same conclusion in Opinion 13-14 (Feb. 22, 2013) about substantially similar legislation. Opinion 14-24 incorporates that prior analysis by reference. The result was a consistent line from this office: state legislation that purports to nullify federal firearms law as applied within the state is preempted.

Could a "firearms freedom" approach ever be drafted in a constitutional way?

The opinion does not address that question directly. It analyzed the specific bill in front of it. SB 1607 went beyond merely refusing state assistance with federal enforcement (which states can constitutionally choose to do under the anti-commandeering doctrine) by purporting to void the federal law itself and impose civil liability on enforcement. Those features are what triggered the Supremacy Clause problem. A bill limited to declining state cooperation with federal enforcement would raise different legal questions.

Did this opinion strike down any law?

No. AG opinions are advisory and persuasive, not binding. The AG flagged a constitutional defect in proposed legislation. The legislature could still vote on the bill; a court could still rule differently if the bill became law and someone sued; and the AG's view was offered to inform the legislative process, not to block it.

Background and statutory framework

The Tennessee Firearms Freedom Act, originally enacted in 2009 and codified at Tenn. Code Ann. Title 4, Chapter 54, was part of a wave of similar state laws (Montana enacted the first in 2009) that sought to exempt firearms made and kept within a state from federal firearms regulation. The conceptual move was to argue that, because such firearms had never crossed state lines, federal commerce power did not reach them.

That theory was tested in federal court in Montana Shooting Sports Ass'n v. Holder, where the Ninth Circuit (after this AG opinion issued) ultimately held the Montana act preempted by federal firearms law. The constitutional consensus, both before and after, has been that the Supremacy Clause does not yield to state declarations of nullification, regardless of the substantive area.

The Supremacy Clause, U.S. Const. art. VI, cl. 2, provides that the Constitution, federal laws made in pursuance of it, and treaties made under federal authority "shall be the supreme Law of the Land," binding state judges "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Conflict preemption, as articulated in Florida Lime, applies when "compliance with both federal and state regulations is a physical impossibility for one engaged in interstate commerce" or when state law stands "as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."

Citations

• Tenn. Code Ann. Title 4, Chapter 54 (Tennessee Firearms Freedom Act)
• U.S. Const. art. VI, cl. 2 (Supremacy Clause)
• Florida Lime and Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963) (U.S. Supreme Court; conflict preemption "physical impossibility" test)
• Tenn. Att'y Gen. Op. 13-14 (Feb. 22, 2013)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-024.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
February 27, 2014
Opinion No. 14-24
Constitutionality of Legislation Amending the "Tennessee Firearms Freedom Act"

QUESTION

Is Senate Bill 1607/House Bill 2145 (hereinafter "SB1607") of the 108th Tennessee General Assembly, which would amend the "Tennessee Firearms Freedom Act," constitutional?

OPINION

No.

ANALYSIS

The proposed bill, SB1607, would amend Title 4, Chapter 54, of the Tennessee Code, known as the "Tennessee Firearms Freedom Act." The bill would amend the act to expressly provide that a firearm, firearm accessory, or ammunition that "is present in this state or is owned or possessed by an individual or entity in this state" is not subject to any federal enactment or federal enforcement action. S.B. 1607, 108th Gen. Assem., § 2 (2014). The bill would declare any federal enactment void in this State as to any such firearm, accessory, or ammunition. Id. § 4. The bill would also render "[a]ny person or entity that violates" the amended act civilly liable for actual and statutory damages, and it makes provision for both public and private rights of action. Id. § 5.

This Office has previously opined that very similar legislation, if enacted, would violate the Supremacy Clause of the United States Constitution. See Tenn. Att'y Gen. Op. 13-14 (Feb. 22, 2013). Like the bills that were the subject of that opinion, the current proposal is intended to create an actual conflict with federal law such that compliance with both state and federal regulations would be a physical impossibility. See Florida Lime and Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963). If enacted as proposed, SB1607 would declare void and unenforceable any and all federal firearms regulation within the State of Tennessee. For the reasons set forth in our prior opinion, such action would be inconsistent with and impermissible under the Supremacy Clause of the United States Constitution. U.S. Const., art. VI, cl. 2.

ROBERT E. COOPER, JR.
Attorney General and Reporter

JOSEPH F. WHALEN
Acting Solicitor General

JENNIFER L. SMITH
Deputy Attorney General

Requested by:
The Honorable Brian Kelsey
State Senator
7 Legislative Plaza
Nashville, Tennessee 37243-0231