Could Tennessee declare all federal weapons regulations void in the state and create a private cause of action against any government that tried to enforce one?

Subject

Opinion No. 14-25, Legislation Relative to State Preemption of Weapons Regulation, February 27, 2014

Plain-English summary

Senator Brian Kelsey asked whether Senate Bill 1756 of the 108th General Assembly was constitutional. The bill had several moving parts. Section 5 would declare void all federal laws, ordinances, rules, and regulations bearing on Tennesseans' rights to arms or on the state's power to regulate arms within state boundaries. Section 1 would amend Tenn. Code Ann. § 39-17-1314(a) to expressly reserve to the General Assembly "the entire field of regulation within the state of all arms and weapons," voiding any local enactments and any "laws, regulations, ordinances, or enactments, other than those enacted by the General Assembly." Sections 2 and 3 would permit other government entities to regulate their own employees' weapons use but otherwise to regulate arms only when expressly authorized by state statute. Section 4 would prohibit any government entity or official from maintaining a registry or database of civilian firearms ownership. Section 6 would create a private right of action against governmental entities for actions adverse to a person under the section.

The AG concluded the bill was not constitutional. Section 5, the federal-nullification provision, was the clearest problem. As with the parallel bill addressed in Opinion 13-14, declaring federal firearms law void within the state would create a conflict with federal law that compliance with both could not bridge. That triggers Supremacy Clause preemption (U.S. Const. art. VI, cl. 2) under the "physical impossibility" branch of Florida Lime and Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963).

The bill's remaining sections (state preemption of local rules, the bar on firearms registries, the private right of action) raised a different problem. The text uses sweeping references to "any laws other than those enacted by the general assembly," "any enactment," "governmental enactment," and "governmental entities." If those phrases were read to reach federal law and federal agencies, those sections too would conflict with federal law and be preempted. The AG invoked the canon of constitutional avoidance, citing State v. White, 362 S.W.3d 559, 566 (Tenn. 2012), and concluded that, if enacted, those provisions would have to be construed to apply only to state and local laws and entities to survive.

This was the second of two related opinions Senator Kelsey requested the same day (compare Opinion 14-24 on SB 1607).

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 1756 try to accomplish?

It packaged several measures. First, declare federal weapons laws void in Tennessee (Section 5). Second, replace the existing state preemption of local firearms regulation in Tenn. Code Ann. § 39-17-1314(a) with a stronger version that reserved the entire field to the General Assembly and voided any local rules (Section 1). Third, limit other government entities to regulating only their own employees' weapons use, plus whatever the state expressly authorized (Sections 2 and 3). Fourth, ban any government registry or database of civilian firearm ownership (Section 4). Fifth, create a private cause of action against governmental entities for actions in violation of the section (Section 6).

Why was Section 5 unconstitutional?

It explicitly declared federal firearms law void within Tennessee. The AG, following Opinion 13-14, concluded that such a provision creates a direct conflict with federal law, satisfying the "physical impossibility" branch of conflict preemption under Florida Lime. The Supremacy Clause (U.S. Const. art. VI, cl. 2) makes federal law the supreme law of the land; a state cannot nullify it by statute.

What was wrong with the rest of the bill?

The rest of the bill spoke about "any laws other than those enacted by the general assembly," "any enactment," and "governmental entities." Read literally, those phrases would sweep in federal laws and federal agencies. If so read, those provisions would also conflict with federal law and be preempted. The AG concluded the only way to save them was to construe them narrowly, as covering only state and local laws and entities. Tennessee's constitutional-avoidance rule, articulated in State v. White, requires courts to read statutes to avoid constitutional conflict where possible.

Could Tennessee constitutionally preempt local firearms regulation?

Yes. State preemption of local firearms law (the substance of Tenn. Code Ann. § 39-17-1314(a)) is a state-to-local question that does not implicate the Supremacy Clause. The AG's concern was solely with the parts of SB 1756 that purported to reach federal law and federal entities. A bill that limited itself to claiming the field as against local governments and creating remedies against those local governments would not raise the same constitutional problem.

Could Tennessee bar government registries of civilian firearm ownership?

Insofar as the prohibition reached state and local agencies, yes. The Tennessee General Assembly can tell the state's own agencies, departments, and local political subdivisions what records they may and may not keep. The constitutional problem comes if the registry ban is read to apply to federal agencies, which it cannot. Again, constitutional avoidance pushes the reading toward state and local actors only.

What about the private right of action in Section 6?

The bill would have allowed "persons adversely affected by any governmental enactment or action in violation of this section" to sue the governmental entity. As with the other provisions, that remedy could survive only if "governmental entity" was construed to mean a state or local entity, not a federal one.

Background and statutory framework

Tenn. Code Ann. § 39-17-1314 is Tennessee's primary state preemption statute for firearms regulation. As of 2014 it already prohibited cities and counties from occupying any part of the firearms-regulation field. SB 1756 would have tightened that preemption and added the federal-nullification elements that drew the AG's Supremacy Clause concerns.

The constitutional-avoidance canon, restated in State v. White, 362 S.W.3d 559, 566 (Tenn. 2012), instructs Tennessee courts to interpret statutes so as to avoid constitutional conflict where a saving construction is possible. The AG invoked this canon to say that the broad references in Sections 1 through 4 and 6 would have to be narrowed to state and local actors if SB 1756 became law.

The Supremacy Clause framework draws on Florida Lime and Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963), which articulated the conflict preemption test that a state law is preempted when compliance with both federal and state regulations is a "physical impossibility."

Citations

• Tenn. Code Ann. § 39-17-1314 (Tennessee firearms preemption statute)
• 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)
• State v. White, 362 S.W.3d 559 (Tenn. 2012) (Tennessee Supreme Court; constitutional avoidance)
• 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/op14-025.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
February 27, 2014
Opinion No. 14-25
Legislation Relative to State Preemption of Weapons Regulation

QUESTION

Is Senate Bill 1756/House Bill 2144 (hereinafter "SB1756") of the 108th Tennessee General Assembly relative to state preemption of weapons regulation constitutional?

OPINION

No.

ANALYSIS

The proposed bill, SB1756, would amend Title 39, Chapter 17, Section 1314, of the Tennessee Code to state expressly that all federal laws, ordinances, rules, and regulations in any way bearing on the rights of citizens and residents of this State relative to arms or the power of the State to regulate arms within the boundaries of the State are void. S.B. 1756, 108th Gen. Assem., § 5 (2014). The bill would also amend the section to delete the current prohibition against local-government occupation of any part of the field of firearms regulation, Tenn. Code Ann. § 39-17-1314(a), to expressly reserve to the State "the entire field of regulation within the state of all arms and weapons" and to expressly declare that any laws, regulations, ordinances, or enactments, other than those enacted by the General Assembly, "including but not limited to local laws, regulations or ordinances," are void. S.B. 1756, § 1. The bill would leave "other governmental entities" free to regulate the use or possession of arms by government officials they directly employ and to otherwise regulate arms "only to the extent expressly authorized by state statute." Id. §§ 2, 3. Any enactment providing for the ownership, maintenance, or use "by any government entity or official" of any registry or database relative to the private ownership or possession of firearms by civilians would also be prohibited. Id. § 4. The bill would also provide a private right of action "against the governmental entity" for persons "adversely affected by any governmental enactment or action in violation of this section." Id. § 6.

This Office has previously opined that 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, Section 5, at least, of SB1756 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, SB1756 would declare void 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.

Insofar as the references in the bill's remaining sections to "any laws . . . other than those enacted by the general assembly," "any enactment," "governmental enactment," and "governmental entities" could be construed to include federal laws and agencies of the federal government, these sections would likewise conflict with federal law so as to render them preempted. If enacted as proposed, the constitutional infirmity would necessitate that these provisions be construed to apply only to state and local laws and entities. See State v. White, 362 S.W.3d 559, 566 (Tenn. 2012) (restating the rule that statutes will be construed so as to avoid any constitutional conflict).

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