The
Tennessee Constitution
violates the Second and Fourteenth Amendments. It must be amended as
one of the steps to making sure that the rights that the United States
Supreme Court has repeatedly held in
Miller, Heller, McDonald and
McDonald
are vest in each of us are no longer in jeopardy under the “Jim Crow”
amendment to the Tennessee Constitution that occurred in 1870.
How does the Tennessee Constitution violate the Second and Fourteenth Amendments?
The Second Amendment states in its operative phrase that “
the right of the people to keep and bear Arms, shall not be infringed.”
Tennessee’s constitutional provisions as written originally in 1796
was the closest to the Second Amendment’s prohibition on government
action but it still reflected a restriction that the Second Amendment
did not contain. The 1796 Tennessee Constitution protected the rights
of the “free men” in Article 11, Section 26.
The “Jim Crow”
effort took on more emphasis in the 1834 Amendment to the Tennessee
Constitution which changed the phrase “free men” to “free
white men”. Article 1, Section 26.
After the Civil War, the Tennessee Constitution was amended in again
1870. With that amendment, the language about “free men” and “white
men” were eliminated but a phrase was added which purported to give to
the state powers of equal unconstitutional purpose. In 1870, the
language of Article 1, Section 26, the drafters added that “the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime.”
That clause had the purpose to allow the state legislature to enact
and continue Jim Crow laws under the pretext that they were crime
prevention laws.
The Second Amendment has never contained language about “free men”,
“white men”, any color, age, sex or national origin. It has never done
anything but prohibit any government infringement of the right that
pre-exists the constitution.
The United States Supreme Court’s decision in
New York State Rifle and Pistol Association v. Bruen
in June 2022 made clear that the prior practice, which federal district
and appellate courts had developed, engaged in an “interest balancing”
analysis where the courts would consider whether the governmental
restriction had any reasonable purpose – such as crime prevention – even
if the government restriction clearly impacted a right within the scope
of the Second Amendment. The Supreme Court made clear in
Heller and made even more clear in
Bruen
that a government cannot under any circumstance justify the
infringement of a constitutionally protected right by asserting that it
is reasonable, that it is in the public interest, that it promotes
public safety or that it advances crime prevention. As stated in
Bruen,
only those government restrictions that constituted part of the
nation’s historical tradition as of 1791 (or close analogues) can pass
constitutional scrutiny.
It is beyond debate that the current Tennessee Constitutional provision violates the Second and Fourteenth Amendments.
Some
Legislators have proposed and are supporting a Constitutional amendment
that would repeal the existing unconstitutional provision and
substitute the phrase
“That the citizens of this State have a right to keep, bear, and wear arms.” (See
Amendment 1 to
HJR0038 by Rep. Jay Reedy and
SJR0904 by Sen. John Stevens)
As
of February 11, 2024, many state legislators have co-sponsored these
resolutions but many more have not. On SJR0904, Sen. Stevens is the
sponsor and Senators Bailey, Bowling, Hensley and Jackson are the
co-sponsors. But, there are 33 Senators and most of them are
Republicans!
As of February 11, 2024, HJR0038 is sponsored by
Rep. Jay Reedy. Representatives who have co-sponsored the amendment, in
the order in which they are listed on the state’s website, are Todd,
Sparks, Doggett, Slater, Barrett, Capley, Moody, Grills, Fritts,
Cepicky, Martin B, Russell, Littleton, Moon, McCalmon, Keisling,
Lamberth, Bulso, Boyd, Gant, Davis, Bricken, Richey, Darby, Hill,
Garrett, Farmer, Hurt, Butler, Cochran, and Warner. Again, there are
99 House members and a super majority of them are Republicans.
But
this is not a Democrat or Republican issue. First, the amendment seeks
only to remove an unconstitutional provision from the state’s
constitution. Second, the amendment would eliminate over 225 years of
unjust prejudice in favor of “free” or “white” citizens rather than all
citizens. Third, the amendment would at the state level make clear that
the state legislators, local governments and others government decision
makers are constitutionally prohibited from engaging in any “interest
balancing” that the Supreme Court has said the Second Amendment
prohibits.
