On February 6, 2024, Rep.
William Lamberth presented his
House Bill 1640.
Rep. Lamberth seeks to expand the circumstances under which access to
firearms (but not other deadly weapons) is prohibited with respect to
individuals who have been “adjudicated as a mental defective or
judicially committed to a mental institution.” The restriction applies
even to those who are not institutionalized but are allowed to exist in
the community. It is important to note in this lengthy video clip the
question and comments from Committee Chairman
Bud Hulsey as well as the comments from Rep.
Monty Fritts.
Chairman Hulsey asked a question that
must
be asked of every bill sponsor who presents any legislation that
touches on any way on the rights protected by the broad scope of the
Second Amendment. Chairman Hulsey asked Rep. Lamberth to address the “
Bruen Basis”
for his legislation. (See
video at time mark 27:45) As discussed
in the TFA’s “Bruen Basis” writing, that term refers to the Supreme
Court’s finding in its June 2022 decision in
New York State Rifle and Pistol Association v. Bruen, No. 20-843
that the government bears the heavy burden for any existing law or
proposed legislation to demonstrate that the law is consistent with the
“nation’s historical tradition” as of 1791 (the year the Bill of Rights
was ratified by the states) of firearms regulation. Absent a clear
showing that a majority of states had such a restriction (or an
acceptable analogue) as of 1791, then Supreme Court has held that such
law or, in this instance, proposed law violates the 2nd and 14th
Amendments and is therefore unconstitutional. The Court stated:
In Heller and McDonald, we held that the Second and
Fourteenth Amendments protect an individual right to keep and bear arms
for self-defense. In doing so, we held unconstitutional two laws that
prohibited the possession and use of handguns in the home. In the years
since, the Courts of Appeals have coalesced around a “two-step”
framework for analyzing Second Amendment challenges that combines
history with means-end scrutiny.
Today, we decline to adopt that two-part approach. In keeping with Heller,
we hold 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.” Konigsberg v. State Bar of Cal., 366 U. S. 36, 50, n. 10 (1961).
Bruen, p. 8
The Supreme Court decision in Bruen and many federal
decisions implementing it since June 2022 require that the government
(or here a bill’s proponent) be able to specifically identify those laws
or restrictions that existed in 1791 that constitute the historical
basis for the proposed restriction. It is not enough that the law might
be, today, reasonable or that it might have some potential for public
safety. Justifications based solely on reason or public safety are
expressly precluded by the Supreme Court’s rejection of the “means-ends”
analysis that formed the second prong of some decisions by the lower
appellate courts. According to the Supreme Court, if the law or
proposed legislation lacks a clearly identified “national historical
tradition” of regulation that existed as of 1791, it is
unconstitutional.
In response to this question from Chairman Hulsey, Rep. Lamberth
stated that in the historical precedent of this country and “quite
frankly going back thousands of years” all societies recognized that
there are individuals who are criminally insane. While that may be a
true statement, it does not satisfy the burden that the Supreme Court
placed on the government to demonstrate that a proposed law is
constitutional. Certainly, there may be evidence of a national
historical tradition regarding that portion of the proposed law which
would limit access of firearms or other weapons to individuals while
institutionalized by the government as mentally incompetent to stand
trial. But this proposed law also seeks to make it a crime for those who
are not institutionalized to purchase or possess firearms. We look
forward to Rep. Lamberth’s presentation demonstration that there was as
of 1791 a national historical tradition that banned firearms due to
mental health concerns from people who were allowed to be otherwise free
in society and distributed within the community.
Rep. Fritts
also raised another interesting question related apparently to a
proposed amendment. That topic concerned why the proposal from Rep.
Lamberth was limited to firearms. Why not include all dangerous
weapons? Why not prohibit these presumptively dangerous, at least based
on the legislation, individuals from having access to motor vehicles or
driver’s licenses? Indeed, if they are in fact determined to be
mentally incompetent, is there a reason to suspend or limit their right
to vote or exercise First Amendment freedoms?
The importance of
this committee hearing is that Chairman Hulsey is showing concern to
make inquiry as to whether proposed legislation is even a topic that the
Legislature can constitutionally consider. Questions about the “Bruen
Basis” should be asked and pressed with respect to every proposed bill,
whether good or bad, to ensure that the Legislature in Tennessee is not
exceeding its constitutional boundaries by enacting or proposing laws
that do or may violate the Second and Fourteenth Amendments.
Contact
your legislators to insist that they also take the time to become familiar with the Supreme Court's "Bruen" mandate and that they be prepared to make sure that any proposed legislation - whether good or bad - is explored in each subcommittee and committee, as well as on the respective Floors, on the issue of whether the proposed legislation is constitutional under the Bruen criteria.
