by Mark Pulliam
Sadly, our law schools, bar associations, and judiciary have become politicized to the degree that in blue states the law itself has lost its moral force; many lawyers and judges, in a profession that has become dominated by the Left, simply seek to impose their personal predilections on society while pretending to follow the law. Activist judges are ideological zealots in black robes–amoral actors in a nihilistic belief system in which power and winning are all that matter. Laws and procedural rules don’t matter.
This same trend is evident on the fringe right. Let me explain. I have written previously about the “nullification” movement, which would encourage state officials to defy federal laws they personally disagree with (like blue state mayors and governors are doing with illegal immigration). Fortunately, the misguided legislation proposed in TN to advance this dubious notion has never reached the floor of the General Assembly. It is a crackpot theory promoted by the fringe John Birch Society and some of its wild-eyed fellow travelers.
A more recent example is the hysteria unleashed by a pack of Tennessee legislators (including a candidate for governor and one running for Congress!) and their social media cheerleaders in a Second Amendment case. A handful of noisy agitators objected to the decision by Attorney General Jonathan Skrmetti to appeal a poorly-reasoned Chancery Court decision from Gibson County that found a duly-enacted Tennessee statute to be “void, and of no effect,” in a facial challenge—which means that the court found that the law is so unsound that no conceivable application of it would be constitutional. (The court was incorrect.)
What was the case about that led Rep. Monty Fritts and 11 of his House colleagues to urge General Skrmetti to abdicate his responsibility to uphold Tennessee laws and instead to surrender to the will of a lower Chancery Court? And why were fringe commentators (including a repeat candidate for the state senate) claiming that seeking appellate review of the lower court ruling was “a new low even for the Lee administration,” and proof that Gov. Lee “he is an enemy to gun rights in Tennessee”? The Pied Piper of the fringe mob, Gary Humble, accused Gov. Bill Lee and General Skrmetti of “betraying their sworn oath,” and being “tyrants.”
The case, Hughes v. Lee, was a lawsuit filed in February 2023 by some gun rights organizations and individuals challenging two Tennessee statutes (39-17-1307(a) and 1311(a)) that make it a misdemeanor to “carry weapons” in a public park and to carry a gun or club “with the intent to go armed.” The laws were enacted prior to recent Supreme Court cases clarifying the scope of citizens’ Second Amendment rights (such as Bruen in 2022). None of the plaintiffs were charged with a misdemeanor under the statutes, unlike an “as applied” challenge. They merely claimed that they were actually “injured” because they “might” be subject to the law. Pure conjecture, producing a purely abstract question of law.
After a delay of more than two years, in August 2025, the Chancery Court declared that the statutes were overbroad and therefore unconstitutional in toto. Despite the ruling, the panel did not issue an injunction and stopped short of ordering the state to quit enforcing the laws. Moreover, the court’s ruling has no binding effect outside of Gibson County.
General Skrmetti filed a notice of appeal and moved to stay judgment pending appeal because the Chancery Court (1) misapplied the standard for making a “facial” challenge (for example, there are potential situations where brandishing a gun in a park as proscribed by the statute would not be protected by the Second Amendment); and (2) purported to define the rights of parties other than the specific plaintiffs in the lawsuit. By holding the statutes unconstitutional in their entirety, regardless of conceivable factual circumstances in which the law would be valid, the Chancery Court exceeded the constitutional bounds of the judicial power.
General Skrmetti argued in his motion that “By reaching beyond its defined role in our constitutional system, the Court has induced widespread uncertainty….By choosing the path of maximum disruption to Tennessee’s statutory scheme, the Court has created unnecessary confusion and risk.”
The irresponsible, uninformed, and (frankly) reckless and self-serving criticism of General Skrmetti’s notice of appeal only exacerbates the confusion. (In contrast, Rep. Chris Todd, R-Jackson, praised the decision but asked Attorney General Jonathan Skrmetti to appeal the ruling for clarity on the enforcement issue.) The determination of the validity—statewide—of a Tennessee statute must be made by an appropriate court in a case where the plaintiffs have legal standing, after adequate briefing of the issues. That court is the state court of appeal or the Tennessee Supreme Court, not a low-level Chancery Court in Gibson County. (Would Jody Barrett, et al. agree that a single Chancery Court could erase Tennessee’s abortion ban, and that the state’s attorney general should forgo an appeal? Of course not.)
Not appealing this decision would be a betrayal of the citizens of Tennessee who expect duly-enacted laws to be enforced absent a proper—and final–determination of unconstitutionality. Hughes v. Lee was decided by the equivalent of a small claims court—the bottom of the judicial food chain. OF COURSE the state should appeal the decision! It would be madness—and a betrayal of all Tennesseans–not to. The hysteria we hear is the howl of a mob taking out its hostility toward Gov. Lee by cynically questioning the integrity and devotion of Tennessee’s stalwart Attorney General, Jonathan Skrmetti.
The fringe right in Tennessee displays the same contempt for constitutional processes and separation of powers that elite liberals demonstrate in their resistance to President Trump. Disregarding the rules in order to achieve a desired policy result is corrosive to the rule of law—and to constitutional government itself. Chancery Courts are not equipped to serve as the final arbiter of Tennessee laws. We have appellate courts for a reason: to produce clear and definitive answers to legal disputes. The state attorney general has a crucial role in Tennessee government; he litigates on behalf of Tennesseans to enforce and uphold laws enacted by our elected representatives.
Arguing that General Skrmetti should yield to the poorly-reasoned decision of a lower court without seeking clarification and correction of the Chancery Court’s mistakes is like saying the swampy rogue judges in blue cities should be able to hamstring President Trump without Supreme Court review.
It is an absurd proposition, demonstrating the unfitness of these fringe figures for the higher offices to which they aspire. Abandoning rules in the pursuit of power is the road to anarchy, and the telltale sign of charlatans and demagogues. Personal antipathy toward our Governor is no excuse to shred constitutional norms. That leads to mob rule.
Tennesseans deserve better than performative outrage, petty vendettas, personal acrimony, and opposition for opposition’s sake from their elected officials and candidates for office. I hope Tennessee conservatives recognize the phony rhetoric over Hughes v. Lee for what it is: self-serving rabble-rousing calculated to sow division and discord, and to generate attention and noise. This is the antithesis of statesmanship. It is the modus operandi of a demagogue.
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Mark Pulliam is a retired attorney who writes at The Misrule of Law blog.
Photo “Jody Barrett” by Jody Barrett.
