On April 19, 2023,
reports are suddenly surfacing that
Governor Bill Lee
has released a 13 page bill that would substantially change Tennessee’s
criminal code and mental health codes to implement a “Red Flag” law.
The proposed amendment which was released this afternoon does not
indicate which bills are being amended, who the sponsors are, when the
bill would be heard in a committee or give anyone outside of government
the opportunity to review, comment on or oppose the legislation. (The
entire amendment is on the TFA's news post) It is
the typical move of a tyrant.
The Bruen decision has created a national stonewall – which Governor Bill Lee continues to blatantly disregard
– against which any proposed government regulation must be measured.
It is a constitutional blockade which prohibits any proposed government
infringements on the rights protected by the Second Amendment unless
certain conditions are shown to exist by the government proponent.
In Bruen,
the Court stated that the Second and Fourteenth Amendments together
guarantee individuals not only the right to “keep” firearms in their
homes, but also the right to “bear arms” in public, meaning the ability
of “ordinary, law-abiding citizens” to carry constitutionally protected
arms “for self-defense outside the home,” free from infringement by
either federal or state governments. Id. at 2122, 2134.
The
Court held that, “when the Second Amendment’s plain text covers an
individual’s conduct, the Constitution presumptively protects that
conduct. To justify its regulation, the government may not simply posit
that the regulation promotes an important interest. Rather, the
government must demonstrate that the regulation is consistent with this
Nation’s historical tradition of firearm regulation. Only if a firearm
regulation is consistent with this Nation’s historical tradition may a
court conclude that the individual’s conduct falls outside the Second
Amendment’s ‘unqualified command.’” Bruen at 2126.
The
Court stated that the only appropriate inquiry would be what the
“public understanding of the right to keep and bear arms” was during the
ratification of the Second Amendment in 1791. Bruen at 2137–38.
Thus, what the Supreme Court did in Bruen is to hold that
the public debate about the scope of the prohibition on government
infringement of the rights covered by the Second Amendment ended in 1791
with the adoption of the Second Amendment. The Court stated that only
those laws that existed as of 1791 and which were sufficiently
widespread to be part of the “nation’s historical tradition” as of that
time for dealing with issues – any issues – pertaining to civilian
ownership of firearms can be considered as options by government today.
That is, if the government cannot point to a specific set of laws as of
1791 that dealt with an issue – such as the mentally defective
possessing a firearm – then the government cannot rationalize new
categories of infringements today.
The burden to show the scope
of available options – as of 1791 – to deal with mentally or emotionally
ill individuals who pose a risk of harm to themselves or others is on
the government, Governor Bill Lee has never
identified any such law of national historical tradition that would
support his call for any enhanced order of protection, i.e., Red Flag
law today. As of today, no Legislator has announced any historical
precedent existing as of 1791 would be the basis for a Red Flag law in
Tennessee today.
Yet, Governor Lee, in callous disregard of the
United States Supreme Court and the Constitution, proposes a complicated
legislative package that represents a not unsurprising cavernous vacuum
of constitutional stewardship. The simple fact is that nothing he
proposes can be aligned with any law or regulation that existed as of
1791 for dealing with people who pose a risk of harm to themselves or
others.
The proposed legislation seeks to create a procedure that is referred
to as a “temporary mental health order of protection” that must be
filed by a law enforcement officer or agency. There is no indication
that the petition can be filed by non-law enforcement. Unlike existing
procedures for emergency involuntary committals, there is no requirement
that the petition be supported by qualified sworn statements of
physicians or qualified mental health professionals. However, at the
initial hearing on the petition, the court “must order” the individual
to submit to “an assessment for suicidal or homicidal ideation” by an
“evaluator” who has been certified by the commissioner for mental health
and substance abuse services.
The hearing is not to determine
if the individual is suffering from a mental or emotional health
condition that causes the individual to be an immediate risk of harm to
themselves or others. The hearing is to determine whether the
individual “poses a current and ongoing substantial likelihood of
serious harm by having in the respondent’s custody or control or by purchasing, possessing, or receiving, a firearm or ammunition;”
Thus, if the person does not have any firearms or ammunition and
there is no evidence of any attempts to acquire some, then apparently
the “temporary mental health order of protection” cannot be issued and
the mentally unstable person that poses a risk of harm remains at
liberty to go get knives, other weapons, drive cars, engage in DUI
activities or run for public office. The entire focus of Governor
Lee’s misguided Red Flag law is seizing firearms but leaving the
individual loose to do whatever harm to themselves or others that they
might otherwise do.
If the firearms seizure order is issued, the
order can be in effect for up to (and likely would be in effect up to)
180 days. It can be renewed and extended FOREVER. If issued it
requires the person to get rid of any firearms or ammunition. It also
requires the state to notify appropriate authorities so that the
individual is entered into the computer databases so that federally
licensed gun dealers cannot sell firearms to the individual.
Curiously,
the procedure specifically states that the “temporary mental health
order of protection” is not “an adjudication of the respondent as a
mental defective for purposes of 18 U.S.C. § 922.” That is likely true
because federal law does equate things like alcohol dependency with the
term “mental defective”. In fact, almost all of the conditions
described in Governor Lee’s legislation fall outside of how federal
courts have interpreted the statutory phrase “mental defective.” In
that regard, Governor Lee is proposing extreme new categories of
prohibited characteristics that would deny an individual the
constitutionally protected right to keep and bear arms.
There is
nothing in the proposed bill that keeps these orders confidential, that
removes them from open records requests or that allows an individual to
have the record entirely expunged (including administrative copies)
order of protection is ever terminated.
It is beyond question that this proposed amendment completely fails
the United States Supreme Court’s threshold requirements for
constitutionality as set forth in Bruen. Governor Bill Lee
should be admonished for his willful neglect of his oath of office and
his intentional proposal of legislation that would constitute a clear
and obvious civil rights violation.
