The 10th Amendment Revisited

Via Instapundit, we have news that the governor of Tennessee (Instapundit’s home state) has signed a bill — SB 1110 is the bill designation — which prohibits use of state assets or personnel in the enforcement of certain federal firearms laws.  Over at’s Big Government, we have a brief write-up on the Tennessee bill, as well as a similar measure recently enacted in Indiana (the Indiana law relates only to regulation of sawed-off shotguns).

The comments to the article seem to fall into two camps, those who view such laws as attempted “nullification” of federal statutes, and those who see such laws as a state standing up to the federal government’s over-reach.  Among the former we have —

“These nullification laws are sedition and you people commenting on this story are encouraging insurrection. There is no 10th Amendment because the supremacy clause can be used at any time to nullify any law passed by a state. State laws designed to defeat Federal Law is nothing more than a throwback to when Confederate Traitors tried to destroy our nation. Like those traitors in the past, Union Blue will put you in the ground in order to save the Union. There are far more people who still love this nation and will not tolerate a collection of stupid America haters.”

And among the latter we have . . . well, we have just about the balance of the commenters on that post.

For reference purposes, the text of the 10th Amendment reads, in its entirety:  “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”  The commenter quoted above seems to misunderstand the functioning of amendments in general in relation to the base document.  To the extent that the 10th Amendment and the Supremacy Clause conflict on an issue, the amendment trumps.  Were that not the case then the following provisions of Article IV Section 2 would still be the law, notwithstanding the 13th Amendment:  “No person held to service or labour in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labour, but shall be delivered up on claim of the party to whom such service or labour may be due.”

Also beyond the comprehension of the above-quoted commenter is the operation of the Supremacy Clause.  That clause only operates within the scope of the powers “delegated to the United States by the Constitution”; it is not an independent source of federal authority.  It is why the federal government cannot prescribe the qualifications of voters in individual states, except to the extent that a state’s voter qualification law violates the due process or equal protection provisions of the 14th Amendment, or effectively denies voting rights based upon “race, color, or previous condition of servitude.”  Thus, a state may disqualify felons from voting, and a federal statute attempting simply to over-ride that proscription would not trump based on the Supremacy Clause (depending on how it was crafted it might stand a chance under the 14th Amendment, however).

I’ll also point out that the text of the 10th Amendment, drafted by, debated, voted upon in Congress, and ratified at the same time and by the same people as those who produced and ratified the 2nd Amendment, sort of puts the lie to the notion that when the 2nd Amendment protects the right “of the people” to keep and bear arms, what was really meant was the right of the states to create a militia.  No; those drafters understood the distinction between “the people” and “the states.”  In fact the rights of “the people” (and that’s always how it’s referred to, never as “individual persons” or “persons” or “individuals”) are mentioned something like eight or nine times in the Bill of Rights, such as the 4th Amendment, which provides, in full, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”  If you want to read the 4th Amendment in the same manner as the anti-gunners want to read the 2nd, you would have to conclude that only those “persons, houses, papers, and effects” at the time in the custody and control of the states are secure against unreasonable searches and seizures.  So presumably my birth certificate would be so secure, or the possessions of a prisoner would be secure.  The rest of us are on our own, because the expression “of the people” refers only to collective actions exercised by and through the intermediation of a state.

Errrmmmmm . . . . not.

But I digress.  Let’s look at specifically what the new Tennessee statute prohibits and what it does not affect.  As an initial matter, I’ll note it’s poorly drafted.  The bill’s two substantive subsections are both single sentences, and they both share a common verb:  “shall be allocated.”  Huh?  A quick search on Westlaw for variants of the verb “allocate” in Tennessee’s constitution turns up one hit from the text, in Article 11 Section 5, relating to lotteries (apparently it took an amendment to that state’s constitution to permit a lottery).  There’s also an attorney general’s opinion that turns up as a citation to that section, to the effect that lottery proceeds have been “allocated” within the meaning of the text when they are placed in a separate fund for the purposes referenced.  That still tells me not a whole lot.  So you can appropriate and expend state assets for “the implementation, regulation, or enforcement” of federal statutes and regulations regarding certain aspects of gun ownership, so long as you do not assign those assets to a specific fund?  Moreover, how in God’s name does a state “allocate” funds to the “regulation” of “any federal law, executive order, rule, or regulation” regarding gun ownership?  And for that matter, what if we’re talking about a court order?  Under the text of SB 1110, the State of Tennessee could appropriate and expend state funds for the implementation of a federal court order regarding gun ownership.

This bill has all the earmarks of something put together by an amateur draftsman who then found a sponsor to slap his name on it.

So much for the poor grammar and drafting.  What sorts of “federal laws, executive orders, rules, or regulations” may Tennessee not “allocate” either its “public funds” (subsection (a)) or “personnel or property” (subsection (b)) to “implement, regulate, or enforce”?  These:  “regulating the ownership, use, or possession of firearms, ammunition, or firearm accessories.”  What’s not on that list?  Design; manufacture; sale, trade, or other commerce (whether intrastate or interstate); transportation (again, either intra- or interstate); taxation.  Those are some pretty sizable areas within which the State of Tennessee is not refusing its cooperation with the federal government.  In fact, if you think about it, those areas of gun rights with respect to which Tennessee is declining to serve as the federal government’s errand-boy are precisely those rights guaranteed to Tennessee’s individual citizens by the 2nd Amendment; they are more or less the components of “keep and bear arms”.

Strange as it might be to realize it, but whoever wrote this bill, while not being a very competent draftsman, nonetheless displays a very fine constitutional sensibility.  The state is refusing to participate in federal attempts to circumscribe citizens’ constitutionally protected rights.

Our commenter quoted above also seems to labor under some confusion about what precisely is a “nullification statute.”  A true nullification statute states that a law of another jurisdiction (in this case, federal) is ineffective within the boundaries of the state.  Thus, a federal employee who attempts within the state to enforce the nullified law does so at his own risk.  He is nothing more than a thief, an assailant, a trespasser, and is liable for civil and/or criminal prosecution as such in the courts of the state.  At the risk of pointing out the obvious, this new Tennessee law does nothing of the kind.  It would, for example, prohibit Tennessee from turning over any gun-ownership data on its citizens to any federal database.  It would prohibit federal access to its database of concealed carry registration.  It would prohibit a local police department from seizing firearms or accessories based upon a violation of federal law (or a conviction of a federal offense, even a firearms-related offense, although it could deny voting rights to that same convicted federal felon).

All of which is to say that this bill does and will create some interesting outcomes in law enforcement, but I’m just not seeing how this is treasonous or “anti-American” or somehow usurpatory of any lawful claim of federal supremacy.  I guess you can reasonably debate whether it’s a good idea or not, but then that’s why we have a 1st Amendment, isn’t it?


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