Joe Carr has introduced HB0042 in the Tennessee General Assembly. This bill would make it a Class A Misdemeanor for any federal agent to enforce any new regulation, executive order, etc. that seeks to:

(1) Ban or restrict ownership of a semi automatic firearm, firearm accessory, or ammunition; or
(2) Require any firearm, firearm accessory, or ammunition to be registered in any manner.

It also requires the Attorney General to represent any Tennessean who is prosecuted by the federal government for violating 1 or 2.

Naturally, Tennessee Democrats (who support the President’s gun plans) were apoplectic. The party’s chairman, Dip Forrester, called Carr an “extreme politician” and said it was “disgraceful.”

I for one, would love to see this bill become law in Tennessee not only for the individual liberty it would protect but as an added bonus, we would get to see Dip Forrester’s bow tie pop off in a fit of rage…..

Anyway……if it did pass, it would no doubt face a court challenge. The challengers would no doubt base their arguments on the Supremacy Clause of the Constitution (Article VI, Section 2) which states:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

Maybe I’m a purist, but the first sentence of this is the most important; This Constitution, and the Laws of the United States which shall be made in pursuance thereof.

So, the Supremacy Clause only applies if the law itself is constitutional. If it isn’t then the Supremacy Clause does not apply. I’m not the only one who has this interpretation. Alexander Hamilton, writing in Federalist 33, has this to say:

“But it is said that the laws of the Union are to be the supreme law of the land. But what inference can be drawn from this, or what would they amount to, if they were not to be supreme? It is evident they would amount to nothing……….. But it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such……… It will not, I presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the Constitution“

How then, does this apply to Joe Carr’s legislation and the Supremacy Clause argument against it if it is taken to court?

First, the easy one. If Carr’s legislation is applied to protecting Tennesseans from an Executive Order, then there is no way the Supremacy Clause can be used as a shield. The reason is that the Supremacy Clause only applies to laws. Does the President have lawmaking authority? Obama might think he does, but he does not.

Second, what about new laws passed by Congress? This will be a little trickier and I’m not really sure how it would play out. Would the new law have to be declared constitutional before Carr’s legislation would be declared unconstitutional? What if the new law never made it up to the Supreme Court? What would happen in the meantime? Could Carr’s legislation be declared unconstitutional even if there are no new federal laws?

It will be an interesting fight and it’s one that I think will be a good one to have.