Tuesday, February 26, 2013

State Attorney General says Beavers' nullificatiion bill is unconstitutional

It didn't take long to get an Attorney General's opinion on Mae Beavers' bill which would nullify any new federal gun control law or firearms registration requirement and which would require local law enforcement to arrest federal agents enforcing such new laws.

The AG was asked, "Are Senate Bill 0100/House Bill 0042 (hereinafter “HB42”) and Senate Bill 0250/House Bill 0248 (hereinafter “SB250”) of the 108th Tennessee General Assembly constitutional?"

The answer was, " No. Both HB42 and SB250 if enacted as proposed would violate the Supremacy Clause of the United States Constitution."

I could have told you that.  Who wants to bet that proponents of the bill will simply say, "well, that's your opinion?"  It will be interesting to see what happens on Wednesday. Last week, the motion to delay and get an Attorney Generals opinion, only passed by one vote. This vote could be close.

If this bill passes, I assume Governor Haslam will veto it, and while a veto can be easily overridden in Tennessee I would not expect it to be.  If this bill does become law, however, and Congress passes a new legislation that, let us say, bans the 20-round clip, and ATF agents began arresting arms dealers selling 20-round clips and following state law, local deputies start arresting ATF agents, some people could get killed.

This is insanity! If Tennessee thinks an act of Congress or executive order is unconstitutional, the proper course of action is to challenge it in court; not resort to armed rebellion. 

In the five page opinion, case law and history of nullification are addressed.  Anyone who want to know more about the issue, should read the opinion.  Unfortunately, I know that proponents of the bill will argue that they do not care about case law, only their own reading of the Constitution.

Here is the link to the Attorney Generals Opinion: link.

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  1. Rod,

    Since the sitting attorney general was selected/appointed by judges that were illegally selected rather than elected by the qualified voters of the state according to the state constitution, can he really afford to affirm a bill that would declare unconstitutional actions as criminal?

  2. A state statute declaring a federal law void is unconstitutional as a violation of the Supremacy Clause. Duh. And if the legislature, through its statute, also tells the courts that they are not allowed to hold that the federal regulation is constitutional under the 2nd Amendment, that shows a pretty gross misunderstanding of the respective roles of the three branches of government. Duh, again. While it would be nice if all of our Tennsee legislators had law degrees from reputable law schools, I would settle for each of them taking a basic civics class. Any time your statute gets tripped up by Marbury v. Madison, you know your error has been pretty fundamental.

  3. If the federal law is not in "pursuance of" the U.S. Constitution, the supremacy clause does not apply to it. A federal law that expressly violates the bill of rights obviously is not in "pursuance of" the U.S. Constitution.

    TN really doesn't have three branches of government thanks to the Tennessee Plan. Note the inability to find a judge to hear Hooker vs. Haslam that doesn't have a direct conflict of interest. When one or two of the branches select the third, as has been the case for 40 years, it is perfectly understandable that the legislature might think they can control the judiciary - because they do. Sen. Kelsey is working at keeping it that way with his resolution (SJR002).

    By the way, his brand spanking new SR0017 is useless with a corrupt judicial branch.