The Tennessee Legislature had over 200 bills in the 2023-2024 session
that Tennessee Firearms Tracked. Recently, TFA reported on the
bills that were enacted in 2024.
This report is to examine some of the bills that were filed in 2024
that were strong Second Amendment bills but which the Tennessee
Legislature completely failed to pass.
First, let’s start this review once again with the relevance of the United States’ Supreme Court’sdecision in
New York State Rifle and Pistol Association v. Bruen, No. 20-843 (as addressed more fully in the
2024 enacted legislation report). For purposes of this report,
Bruen
teaches us that any government infringement of the rights protected by
the Second Amendment is unconstitutional as a matter of law. That
applies equally to the infringements that exist as statutes, ordinances,
regulations and executive orders at the state and local level based on
the Supreme Court’s 2010 decision in
McDonald v. City of Chicago.
Bruen
further teaches that if an infringement violates the Second Amendment
that the burden is on the state (or applicable government entity) to
demonstrate that the infringement existed as part of the “nation’s
historical tradition” as of 1791.
Bruen also prohibits the government entity from relying on a two-part test that various Court of Appeals adopted after Heller
that allowed many infringements to continue to exist under an
“interesting balancing” test. That test, which often looked at whether
the state had a “public safety” justification for the infringement, was
entirely rejected by the Bruen court.
Thus, the burden on the state, the burden to justify an infringement,
carries forward and pursuant to the oaths of office of elected and
appointed officials, including those in Tennessee, further imposes a
duty on those government officials to repeal infringements that are unconstitutional under Bruen.
It is this duty, the duty to remove, eliminate and repeal existing
infringements where the Tennessee Legislature has repeatedly and
persistently failed Tennesseans and in so doing breached their sworn
oaths of office.
Finally, those in the Tennessee Legislature who
have violated these oaths cannot rely on a claim of “we did not have
the votes” because the Tennessee Legislature has been under the complete
and overwhelming control of Republicans since 2010. It has a
Republican Lt. Governor – Randy McNally. It has a Republican Speaker –
Cameron Sexton. Every relevant committee and subcommittee chair in the
Legislature are Republicans. Every member of the “majority” party’s
leadership team identify as Republicans. So the Tennessee
Legislature’s Republicans, as a party, have no excuse for failed to
fulfill their oaths and no justification for violating their
constitutional duties.
That is not to say all individual members of the Legislature who are
Republicans have violated their oaths and taken actions (or failed to
take actions) that violated our constitutionally protected civil rights.
To the contrary, there are several Legislators who carried legislation
and tried to pass that legislation that would have moved Tennessee at
least closer to constitutional compliance. However, even with
Republican super majorities in control of both houses, there were not enough oath-honoring Republican legislators to achieve those objectives.
Here are some of the opportunities that existed but failed at the
feet of the Tennessee Legislature but, more specifically, the Republican
super majority of the Tennessee Legislature. Note, however, that this
is not a list of all the bills that TFA tracked that failed, it is a
list of only a sufficient number of specific examples to demonstrate
clearly the Legislature’s failures.
SB2180/HB1904
by Sen. Joey Hensley and Rep. Monty Fritts. This bill would have
created an exception under Tennessee’s “posting” statute for those
individuals who have either the enhanced or concealed only permits and
who carrying concealed. If so, the individual would be exempt from
Tennessee’s “strict liability” posting statute under Tenn. Code Ann. §
39-17-1359. However, the property owner / manager would still have the
option to instruct the individual to remove the firearm from the
property and, upon a refusal by the individual to so so, the individual
could be charged with criminal trespass. This bill failed in the
Senate Judiciary on a vote of 4 Ayes (Roberts, Stevens, Taylor and
White), 3 Noes (Kyle, Lamar and Rose) and two Senators who were present
but failed to vote – Todd Gardenhire and Jon Lundberg. Thus, had any of
the three Republicans (Rose, Gardenhire or Lundberg) voted “yes”, the
bill would have at least moved forward. All three of these Republicans
who are responsible for killing this bill in the Senate are up for
re-election in 2024.
SB2502/HB2082
by Sen. Joey Hensley and Rep. Month Fritts. This bill as amended would
have removed Tennessee’s blatantly unconstitutional statutory
presumption that anyone carrying a “firearm or a club” with the intent
to go armed is committing a crime. Tenn. Code Ann. § 39-17-1307(a). This
criminal offense has only 2 elements, carrying of such a weapon with
the “intent to go armed” (which is undefined in the current law).
Anyone carrying any firearm with the “intent to go armed” – even in
their own home, on their own property, at their place of business, with a
handgun permit, while hunting, etc., is chargeable with a crime.
Tennessee law presently makes things like having a handgun permit or
being on your own property an affirmative defense to the crime. Tenn.
Code Ann. § 39-17-1308. Some of the problems with this structure is that
neither an officer nor a district attorney is required to consider
someone’s defenses to a criminal charge in deciding whether to stop,
detain, question, charge, arrest or criminally prosecute the individual.
The government officials “can” consider those issues in their
discretion but they are not
required
to do so. Thus, some in law enforcement may want to keep this criminal
presumption since it gives them “probable cause” upon seeing an armed
individual to believe a crime is being committed and to stop, detain and
question the individual.
The bill, as amended, would have deleted the statutory presumption of
criminal activity. It would have allowed citizens to carry both
handguns and longarms. It would have changed, by statute, the threshold
age for carrying a firearm to 18 rather than 21 (which is already the
law in Tennessee because of a Federal Court civil rights act
settlement in 2023).
In sum, this bill would have removed several different infringements
on the rights that are protected by the Second Amendment.
The bill, however, failed. It actually passed initially in the
Senate Judiciary on 6 yes votes of Senators Gardenhire, Lundberg,
Roberts, Stevens, Taylor, and White against 2 no votes of Senators Kyle
and Rose. However it then was approved again in the Senate Calendar
committee but because of an amendment in that committee it was referred
back to Senate Judiciary which had already closed for the year.
Interestingly, Senator John Stevens who had voted “yes” on the bill in
Senate Judiciary voted “no” on the bill when it came before him in
Senate Finance. The House version of the bill passed on a voice vote in
the House Civil Justice Subcommittee and also in the House Civil
Justice Committee. However, it was referred to the House Criminal
Justice Committee but the Legislative session ended before it was heard
again in either the House or Senate committees – almost as if it was
planned that way by Legislative leaders. Also, an examination of the
House co-sponsors (on the
bill’s legislative page)
shows that most House Republican leadership failed to co-sponsor this
bill with the only exceptions being Reps. Capley, Garrett and Sherrell.
SB2516/HB2689
by Sen. Kerry Roberts and Rep. Clay Doggett. This bill would have
supplemented claims under the federal Civil Rights Act by authorizing
similar civil rights claims to be brought in state court against state
and local government officials who violate those civil rights within the
scope of the Second Amendment or the state constitutional provision.
The Senate bill was initially carried by Sen. Frank Niceley but the bill
failed in Senate Judiciary on March 20, 2024, because no senator made a
“second” to have a vote on the bill itself. When that occurred,
Senator Roberts made arrangements to have the bill assigned to him and
it was reset for a hearing on Senate Judiciary on April 2 (TFA’s lobby
day). When it was called on April 2, Senator Roberts made statements
in support of the bill but did not move forward with it. As a result,
although the bill had passed in the House Civil Justice Subcommittee
Committee on April 2 with only a voice vote, the failure to move it
forward in the Senate Judiciary committee effectively killed the bill.
SB2912/HB2032 by Sen. Paul Bailey and Rep. Jody Barrett. This bill, as amended, was similar to
SB2180/HB190
would have created an exception to Tennessee’s “posting statute” for
enhanced handgun permit holders. It was to be heard on April 2 in
Senate Judiciary but it was instead assigned to “General Sub” which
killed the bill. At that time, however, it had passed in the House
Civil Justice Subcommittee and the House sponsor was still moving the
bill forward. The bill had a 21 House members as co-sponsors but once
again almost none of the House Republican leadership co-sponsored the
bill.
Finally, perhaps the most significant legislation that demonstrates
the lack of true Second Amendment support from House leadership is
House Joint Resolution 38
(“HJR 38”) by Rep. Jay Reedy. HJR 38 was an attempt by some
Legislators in the House to remove a Jim Crow 1870 infringement on the
right to keep and bear arms. That effort was to amend the current
Tennessee Constitution by amending the existing provision in Article 1
Section 26 of our Declaration of Rights. The process to amend the
state’s Constitution (without a convention) is at least a two year
process that requires the passage of matching resolutions by both
chambers in the first year via a simple majority then a second time in a
subsequent session by a two-third’s majority vote. The passage of
those resolutions then merely places the proposed amendment before the
citizens on the ballot but only in those years that coincide with a
election for governor. Thus, constitutional amendments by ballot can
only occur every four years. The failure to pass HJR38 in 2024 in the
House now mandates that it cannot be offered to citizens in 2026 and now
cannot come to a vote by the people until at least 2030.
The
historical significance from a Second Amendment perspective of the
failure of the House Republicans to pass HJR 38 in 2024 must be
considered. History teaches that the Democrat party that controlled
the state in 1870 (including the citizens who voted then for the
amendment) wanted to be sure that the freed slaves would be defenseless
in the face of attempts to disarm them. So, in 1870 they voted to amend
the state’s Constitution to state
“That the citizens of this State
have a right to keep and to bear arms for their common defense; but the
Legislature shall have power, by law, to regulate the wearing of arms
with a view to prevent crime.”
The provision of Tennessee’s 1870 constitution that violated the
Second Amendment in 1870 and that violates it today (as discussed below)
is the phrase “the Legislature shall have the power, by law, to
regulate the wearing of arms with a view to prevent crime.”
House Joint Resolution 38 would have fixed the State’s constitution by amended the language of Article I, Section 26 to read: “That the citizens of this State have a right to keep, bear, and wear arms.”
HRJ
38 began its passage through the sausage mill that is the Tennessee
Legislature when it was filed for introduction on January 11, 2023. The
House Civil Justice Subcommittee approved the proposal on February 21,
2023. The House Civil Justice Committee also approved the Resolution
and it was then scheduled to be heard in the House Calendar and Rules
Committee which should have been the last step before a full floor
vote. However, before it came before the Calendar and Rules Committee,
the House re-referred it to the Finance Ways and Means Subcommittee
since the Resolution, even though it had no fiscal note (which is an
estimate by the Legislature on the projected cost of implementation) .
Despite having no fiscal impact, there is a minimal projected cost of
adding the question to the ballot, so it necessitated the approval by
the House Finance Committee as it is mandated that cost be borne by the
state for these amendments. Thus, on April 5, 2023, HJR 38 was
scheduled to be heard Finance Ways and Means Subcommittee on April 12,
2023. However, the House Finance Ways and Means Subcommittee chairman,
Gary Hicks, apparently felt that the proximity of the vote to the
Covenant School shooting in March 2023, might make the Republican
supermajority look bad, so he requested that the sponsor, Rep. Reedy,
take the Resolution off notice for April 12, 2023, with the promise from
Chairman Hicks to Rep. Reedy that the Finance Ways and Means
subcommittee would pass the Resolution in 2024.
As
2023 was the first year in the 113th General Assembly (all Sessions of
the General Assembly are biennial, comporting with the 2 year terms of
the members of the House) the stagnant resolution was thus required to
sit idle in the House until 2024.
Once 2024 arrived Rep. Reedy placed HJR 38 was placed on notice to be
heard in the Finance Ways and Means Subcommittee on January 17, 2024.
However, it was soon suggested that the Resolution might now be
considered because if it was approved in the House that it might place
too many constitutional amendments on the ballot in 2026 since there
were already three other proposed constitutional amendments that also
were being proposed.
As a result, Richard Archie, a TFA Board member, contacted the
Secretary of State, Tre Hargett, on February 11, 2024, to ask the
Secretary of State how many approved proposed constitutional amendments
were scheduled at that time. It was also determined that there is NO
constitutional nor statutory limit on the number of proposed
constitutional amendments that can be placed on the ballot. Indeed, it
was also determined that in 2014, 2018 and 2022 there were four (4)
constitutional amendments on the ballot before the voters in each
election.
While the House was in the process of considering HRJ
38, it was necessary to introduce and to move it in the Senate as well.
Sen. John Stevens introduced SJR 904 on January 30, 2024. Sen. Stevens
placed it on notice for Senate Judiciary Committee February 28, 2024.
SJR 904 was finally heard in Senate Judiciary on March 20, 2024 where it
received “Aye” votes from every Republican member of the committee and
passed through the Senate Calendar Committee soon thereafter. The full
Senate heard SJR 904 on April 9, 2024, where it received the vote of
every Republican Senator. It was thereupon “engrossed” and sent to the
House for its concurrence.
However, the House Finance Ways and
Means Subcommittee took HRJ 38 “off notice” on April 10, 2024. At the
time, it had 58 sponsors, including at least one Democrat, which was at
least 8 more sponsors that would have been required to pass the
Resolution on the House Floor and send it to the next year for final
consideration in both Chambers. There was no vote by the committee as
to which of the proffered amendments were of higher priority or more
desired by the citizens of Tennessee. Only 1 proposed amendment was
considered, HJR 859 by Speaker Sexton, and that amendment dealt with
bond for alleged criminals and that was an issue that should and could
have been dealt with entirely by statutory amendment as opposed to a
constitutional amendment to repeal a clearly unconstitutional provision
of the existing state constitution (which is what HJR 38 would so).
Indeed,
HJR 38 was the ONLY resolution that dealt with a true constitutional
issue because it sought to correct an existing unconstitutional defect
in the State’s constitution. HJR 38 would have repealed and revised
Article 1, Section 26 which contains a clause that that purports to
allow to the Legislature a regulatory power that violates the Second
Amendment’s “shall not be infringed” mandate. However, since the United
States Supreme Court “incorporated” the Second Amendment against the
states pursuant to the Fourteenth Amendment in its 2010 McDonald
decision, that provision of the State’s constitution is now
unconstitutional since it purports to grant regulatory authority that
the “shall not be infringed” clause of the Second Amendment expressly
prohibits.
In response to the inquiry by
Richard Archie as to the number of allowable constitutional amendment,
the Secretary of State admitted that there was no limited on the number
of amendments that could be on the ballot but the Secretary of State
then offered the excuse that there was a desire of some of those in
Tennessee’s government to eliminate “voter confusion and fatigue” and
that there have been complaints “since 2014 about the length of the
ballot and the length of the constitutional amendments.” There is,
however, no risk that the operative portion of HJR 38 – which is only
once sentence containing 15 words – would have led to any voter
confusion or fatigue particularly since the proposed amendment mirrors
entirely the existing language of the Second Amendment. One must
question whether the excuse about “confusion and fatigue” was the true
justification by the Secretary of State (or the Legislators) for
blocking HJR 38 and our rights to amended our constitution. Indeed,
this excuse – if that is what it was – demonstrates nothing but that the
Secretary of State’s office has so little faith in the cognitive
ability of Tennessee’s citizens.
The Supreme Court of the United States ruled in McDonald v. City of Chicago
in 2010 that the Second Amendment was incorporated against the states
through the due process clause of the Fourteenth Amendment. That
ruling, although not directly specifically at Tennessee’s constitution,
rendered the 1870 bastardized Tennessee Article 1 Section 26 moot and
unenforceable. Yet, in the 14 years since the McDonald
decision, Tennesseans have not seen any movement by the Tennessee
Legislature to remove that unconstitutional infringement from the
state’s constitution.
Indeed, in the Supreme Court said in 2022 in its
Bruen
decision that, when conduct implicates the rights protected by Second
Amendment, the burden shifts instantly to government to prove that the
infringements are aligned with historical tradition of firearms
regulations. Yet, in the two years following that Supreme Court mandate
the Tennessee Legislature has not only failed to repeal existing
infringements in Tennessee but it has, as noted in the
2024 Legislature review,
passed more!
While
it might seem that certain segments of the government of Tennessee are
blind to the rulings of the United States Supreme Court, that is not an
illusion, it is now a proven fact. Tennessee’s Court of Appeals seems
to have gotten the message though, as is evidenced by their analysis in a
recent case in which the Court said:
“Most recently, in Bruen, the United States Supreme Court
noted that the Second Amendment protects the right of lawabiding
citizens to carry and possess handguns both inside and outside the home
for the purpose of self-defense. 142 S. Ct. at 2156.”…“The
unconstitutional conditions doctrine provides that a governmental entity
“may not deny a benefit to a person on a basis that infringes his
constitutionally protected interests.”…“The constitutionally protected
interest or right at issue here arises under the Second Amendment to the
United States Constitution, which protects “the right of the people to
keep and bear Arms.” U.S. CONST. amend. II.5 Self-defense is the
“central component of th[at] right.” Heller, 554 U.S. at 599 (emphasis
omitted). Thus, “law-abiding, responsible citizens” have the right “to
use arms in defense of hearth and home.” Id. at 635.