The Supreme Court of the United States incorporated the 2nd Amendment
against the states through the due process clause of the 14th Amendment
in the McDonald v. City of Chicago case in 2010. The Tennessee
General Assembly, as a whole, has never recognized that the 2nd was
made a Civil Right by that action. Let us look at the results of that
failure.
The Supreme Court of the United States has mandated the method for
which all issues related to the 2nd Amendment are to be viewed. Text,
then history, in that order.
This was put forth in Heller in 2008, reiterated in 2010 in McDonald and once again in Bruen in 2022. Links to these cases are included in the description below, I suggest reading them in their entirety.
Bruen
specifies the test mandated is that IF the Second Amendment’s plain
text covers a person’s conduct. The government must then justify its
regulation by demonstrating that it is consistent with the Nation’s
historical tradition of firearm regulation. Only then may a court
conclude that the individual’s conduct falls outside the Second
Amendment’s “unqualified command.” If an issue before any court
implicates the 2nd Amendment, immediately the burden shifts to the
government to prove any infringement it has, or may place on the right
to keep and bear arms must be justified by historical tradition. If no
similar infringement can be found in the time period from 1791 till
after the ratification of the 14th Amendment, it is invalid,
unconstitutional and void.
Listing the types of weapons the Second Amendment protects, Bruen echoes Heller, McDonald, Caetano, and the Miller case from 1939 (Heller specifically grasp the point of Miller
when it says quote”This holding [of Miller] is not only consistent
with, but positively suggests, that the Second Amendment confers an
individual right to keep and bear arms that ‘have some reasonable
relationship to the preservation or efficiency of a well regulated
militia” close quote and Heller from Blackstone, “the Second Amendment protects the possession and carrying of weapons that are ‘in common use at the time.’ Heller
further says “The conception of the militia at the time of the Second
Amendment’s ratification was the body of all citizens capable of
military service, who would bring the sorts of lawful weapons that they
possessed at home to militia duty.”
From the recent case James Miller v. Bonta (not to be confused with the 1939 case) in the United States District Court, Southern District of California, citing Buren, the Hon. Roger T. Benitez presiding, he says “Americans
have an individual right to keep and bear firearms. The Second
Amendment to the United States Constitution “guarantee[s] the individual
right to possess and carry weapons in case of confrontation.”… “And the
guarantee protects “the possession of weapons that are ‘in common use,
or arms that are “typically possessed by law-abiding citizens for lawful
purposes.”…The American tradition is rich and deep in protecting a
citizen’s enduring right to keep and bear common arms like rifles,
shotguns, and pistols. The “assault weapon” prohibition has NO
historical pedigree, and it is extreme.”
Quoting Judge Benitez
further; “Americans today own 24.4 million modern rifles (AR-15 types)
61% of AR 15 owners said when polled one reason they acquired their gun
was for home defense. Heller quoted Blackstone saying “Self Defense it
the true palladium of Liberty”. From the 2021 National Firearms Survey,
it is noted that firearms are needed defensively approximately 1.67
million times a year. The Centers for Disease Control and Prevention in
2013 estimated there to be between 500 thousand and 3 million defensive
firearms uses per year in the US. Judge Benitez says; “Guns for
self-defense are needed a lot because crime happens a lot.”
The United States Department of Justice reports that in the year
2021, in the entire country 447 people were killed with rifles (of all
types). With a population of 320 million people in the United States,
rifles of any kind (including AR-15s) were used in homicides less than
.01% of the time, meaning 99.99% of AR-15s were used for lawful
purposes.
Bruen makes clear that, “To justify its regulation, the
government may not simply posit that the regulation promotes an
important interest”.
Tennessee being government, must show historical tradition to allow its infringements.
In the previously mentioned in the Caetano Supreme Court
case from 2016, which resulted in a per curium opinion, (meaning there
was little or no opposition to the ruling in the entire court), it was
held “If Heller tells us anything, it is that firearms cannot
be categorically prohibited just because they are dangerous.” The issue
before the court was whether to allow the use of stun guns, and because
200,000 units were in use at the time, the court ruled them to be
lawful. That number is a benchmark then for “common use”. If there are
24.4 million AR type rifles in the hands of the general public, that
certainly is past the “common use” threshold.
The test that must be applied is dangerous AND unusual, not simply dangerous.
Heller specifically says the firearms that are protected by
the 2nd are firearms “that are not dangerous AND unusual, and typically
possessed by law abiding citizens for lawful purposes like
self-defense.”
Legislators who recite only portions of SCOTUS rulings SHOULD read
the whole paragraphs in their speeches. Cherry picking selected portions
of text without giving the full implication is dishonest. Modern
sporting rifles could just as well be called “home defense rifles” or
“anti-crime guns.”
Tennessee is the ONLY state to enact a complete ban on the carry of
all firearms in the period from 1791 to the early 1870s. Some states
said you could not carry a firearm concealed, none but Tennessee made it
a crime to carry any at all.
No other state denied its citizens that right, which per Heller,
preexisted the founding of this Republic. These laws are still on our
books today in Tennessee. There ARE defenses against prosecution,
exceptions and exemptions, BUT, the crime of carrying a loaded firearm
with the intent to go armed in case of confrontation is still codified
here.
The General Assembly and every person who receives a check from the
taxpayer takes an oath to support the Constitution of this State, and of
the United States, and since the Supreme Court of the US has placed the
same chains on Tennessee that surround the Federal Government, “the
right to keep and bear arms shall not be infringed” every one of them is
held to that. It is time the legislators honor their oath and remove
the unconstitutional strictures placed on the People by this state.
Quote for the day, from Miranda v. State, “When rights secured by the Constitution are involved, there can be NO rule making or legislation that would abrogate them.”