Misrule of Law

Mainstream conservatives in Tennessee must recognize the threat presented by anti-GOP agitators posing as grassroots activists. They are demagogues using tactics and strategies from the Democrats’ playbook.

Thanks to the Tennessee Star (here) and the Michael Patrick Leahy show (here)!

As a conservative Republican who has been politically active in every state in which I have lived during my adult life, I find it odd that phony anti-GOP agitators in Tennessee find a receptive audience among uninformed grassroots activists, for whom overheated hyperbole serves as a substitute for reasoned argument. The latest brouhaha involves Hughes v. Lee, a lawsuit filed in a lower-level trial court in Gibson County challenging some of Tennessee’s gun laws. Attorney General Skrmetti’s decision to appeal a poorly-reasoned decision by the three-judge panel has elicited howls of protest from the grifters who foment dissension within the ranks of conservative voters in Tennessee.

The fringe agitators claim that General Skrmetti’s decision to appeal–which is his job–is a “betrayal” of his oath and is evidence that he is a “tyrant.” One fringe follower condemned General Skrmetti as “one of our domestic enemies,” and accused him of “pure treason” for seeking appellate review of a trial court ruling. When I defended General Skrmetti on the Michael Patrick Leahy radio show (and in the Tennessee Star), elements of the uninformed fringe accused me of being “another anti-constitutional gun grabbing communist posing as a conservative.” I kid you not. I’ve been called many things, but “gun grabbing communist” is a new one for this Life Member of the NRA.

I won’t belabor the background of Hughes v. Lee, which I addressed in the links above. My point is that single-issue zealots tend to lose sight of the big picture (such as our constitutional structure) when they focus solely on the immediate policy result they find congenial. The immediate result is the only thing they consider. This is the behavior of a tantrum-throwing child, not a serious citizen in a constitutional republic.

Here’s a remedial civics lesson. Trial courts are primarily fact-finders; appellate courts exist to interpret the law. Only appellate courts (and ultimately the Tennessee Supreme Court) can render a final and binding decision that will apply statewide. The gun laws challenged in Hughes v. Lee were duly-enacted by the General Assembly and enjoy a presumption of validity. General Skrmetti’s job is to enforce and uphold Tennessee’s laws. When the trial court issued a ruling in Hughes v. Lee that found Tennessee’s laws to be “void, and of no effect,” General Skrmetti was obligated to seek appellate review of that conclusion. So he filed a notice of appeal and sought a stay of the lower court’s ruling.  

That is how legal challenges to laws move up the judicial hierarchy to receive appellate review. If the Attorney General failed to appeal a lower court ruling, he would become an accomplice to making the lower court’s ruling final, even if it were wrong. The sovereign people’s agent, the General Assembly, would be subject to cancellation based on the ruling of a single (or, in this case, a three-judge panel) trial court judge. That is not how constitutional government is supposed to work. (It is disconcerting how dismissive of constitutional processes self-proclaimed “constitutional conservatives” tend to be.) But that is how Democratic attorneys general often foil the will of the voters (or the legislature) when abetting the action of an activist judge.

Once again, Gary Humble, the self-styled Pied Piper of the uninformed fringe, is promoting Democratic strategies. For example, in 2011 President Obama’s radical left-wing Attorney General, Eric Holder, refused to defend the federal Defense of Marriage Act, choosing sides on the merits of a legal question without the opportunity for appellate review.  In 2008, California voters passed Proposition 8, amending the state constitution to provide that marriage is between one man and one woman. When it was challenged in court, the state of California (when Democrat Jerry Brown was attorney general) refused to defend it. The sponsors of the initiative defended it, but lost when a homosexual federal district judge ruled in 2010 (prior to Obergefell) that it was unconstitutional. When the case eventually got to SCOTUS, the case was thrown out in 2013 for lack of standing, rendering the lower court ruling final.

California voters were betrayed by Brown’s inaction. Other examples abound.  In 1994, Proposition 187 was passed overwhelmingly by California voters (as a referendum). Prop. 187 sought to terminate government-funded benefits to illegal aliens. The measure was enjoined by a single federal judge the day after the election, and ultimately died because Democratic Gov. Gray Davis abandoned the appeal. The case never made it to the Ninth Circuit or SCOTUS. In all of these cases, the decision not to defend a law in court stripped the voters of their sovereignty. And yet the single-issue fringe attacks General Skrmetti for doing his job?

Activist attorneys general have frequently foiled the will of the people in blue states. North Carolina Attorney General Josh Stein refused to defend state laws involving abortion and election integrity. The same scenario has played out in numerous other blue states. As one former state AG explained:

Defending state laws is one of the primary duties of attorneys general, something they shouldn’t refuse to do, argues Greg Zoeller, a former AG in Indiana. He had to defend all kinds of laws he didn’t like, including the death penalty, which he opposes on religious grounds. And indeed, most lawyers take on cases and clients they don’t believe in. Attorneys general who refuse to defend state laws typically say it’s because those laws are unconstitutional, but Zoeller says that’s not their call to make. “The courts are empowered to make the decision of whether a law is constitutional or not,” he says. “To bring that question to the courts, there has to be a lawyer on both sides.” (Emphasis added.)

The General Assembly represents the people. One official—the AG—should not be able to foil the will of the legislature by choosing which laws to defend. 

It is nonsensical to claim that General Skrmetti is opposed to the Second Amendment. As reported in the Tennessee Star, he and 24 other state attorneys general recently filed a brief with the U.S. Supreme Court asking it to overturn Massachusetts’ firearm licensing requirements for nonresidents. The case, Marquis v. Commonwealth of Massachusetts, involved a New Hampshire resident, who got into a car accident while in the adjacent Massachusetts. At the accident, Marquis was arrested and charged in Massachusetts after telling law enforcement he was carrying a legally owned firearm without a state license.

In Massachusetts, non-residents are required to receive a temporary license for transporting firearms or ammunition within the state. After being charged with unlawful possession of a firearm and ammunition, Marquis filed a motion to dismiss, saying this criminal charge violated his Second Amendment right. He cited the Supreme Court’s N.Y. State Rifle & Pistol Ass’n v. Bruen decision in 2022, which overturned New York’s law criminalizing owning a firearm without a license. General Skrmetti is fighting to protect Second Amendment rights under the Bruen decision. Skrmetti pointed out that

“Tennesseans’ Second Amendment rights don’t just disappear when they visit Massachusetts.” He added that no American should face “criminal charges for simply exercising their constitutional rights while traveling.”…“We joined this brief to defend the principle that constitutional rights travel with every American—not just within their home state, but throughout the entire country.”

Tennessee is not hostile to gun rights. Single-issue organizations are cynically trying to manufacture outrage over Hughes v. Lee for fundraising purposes. 

General Skrmetti is arguably the most conservative, and effective, attorney general in the United States. (I say “arguably” only because I am also a huge fan of Texas Attorney General Ken Paxton.) General Skrmetti litigated and won in the U.S. Supreme Court a challenge to Tennessee’s landmark law forbidding sex change procedures (via surgery and drugs) for minors, S.B. 1. The Supreme Court case upholding the law is captioned United States v. Skrmetti (2025). The case was a hard-fought and important victory for the rule of law.

The Skrmetti precedent is already having a ripple effect in other parts of the country. On September 11, the U.S. Court of Appeals for the Fifth Circuit issued a decision in Haverkamp v. Linthicum, holding that a so-called “transgender” prisoner did not have a constitutional right to taxpayer-funded sex-reassignment surgery (in this case a vaginoplasty). Citing Skrmetti, the Fifth Circuit panel held that an obese 78-year-old prisoner with diabetes, high blood pressure, and high cholesterol was not a suitable candidate for surgery. Accordingly, the prisoner lacked standing to make an equal protection claim.

General Skrmetti is not only an effective conservative advocate in Tennessee, he is wielding influence nationwide.

Accusing him of being a traitor or tyrant who betrays his oath is simply absurd. No rational person should take such reckless and baseless charges seriously.