Governor Bill Lee, who identifies as a Republican, has called for a Red Flag style law to be passed in Tennessee since shortly after the Covenant School murders. In addition, some legislators, who also identify as Republicans, have expressed open support for a red flag law including Lt. Governor Randy McNally. When the Republican controlled Legislature adjourned rather than passing Bill Lee’s Red Flag law, he was clearly upset. Shortly after the Legislature adjourned, Bill Lee exercised his constitutional authority to order the Legislature back to undertake a Red Flag Special Session which is expected to start on August 21, 2023. Of course, almost all Democrat legislators and an unsurprising number of Republicans are cheering the Red Flag Special Session.

Some Republicans, however, are taking a firm stand that there will be no Red Flag law passed in Tennessee, at least not with their support. Of course, since there are a significant number of Republicans who could join with Democrats and Bill Lee in his open gun control agenda, the fact that some Republicans, even perhaps a majority of the Republican caucuses oppose a Red Flag law is no assurance that Bill Lee will not further embrace the Democrats to prove that his proposed gun control law should be law in Tennessee.

But this “Alice in Wonderland” scenario which has arisen at the hands of Bill Lee poses a potential constitutional predicament for some Republicans. Why?

Well one obvious reason is that most Republicans campaign as strong Second Amendment supporters. Some attend all the local GOP functions to kiss babies, serve as “master of ceremonies” and make speeches about how conservative they are. They are already on the campaign trail for re-election in August and November 2024.

These current legislators all take an oath of office – an oath that is required by and prescribed in the state’s Constitution. Article X, Section 2 states:

Thus, these individuals take an oath to put their loyalty to the constitutions of the United States and the state of Tennessee above anything else including party loyalty, donor “perks”, or even other laws such as state statues. This constitutional oath of stewardship also take precedent over the operational rules of the House or Senate.

So, why is this important? Well, although it is frequently ignored and breached, it is a sworn oath to put their loyalties first on the constitutions and also an oath not to take any action that would even have a “tendency” to “lessen or abridge” any of the rights of citizens. Obviously, that includes the rights which the Second Amendment declares shall not be infringed. Now, we all know from just a simple review of current Tennessee statutes and regulations that legislators, including many current ones, have violated this oath over and over and over throughout the state’s history.

But how is this relevant to Bill Lee’s Red Flag special session?

The fact is that while Bill Lee is the governor, he is not the king – despite what he and many in his party may believe. He cannot make law. His job, as the chief of the executive branch, is to implement the laws that are passed by the legislature. Certainly he can ask the Legislature to pass a law or to pass his budget, but all he has the constitutional authority to do is ask.

Since the governor cannot file any bills in the Legislature, that means some legislator would have to file any legislation that might be requested by the governor. Typically, that “honor” is held by those legislators who are the caucus leaders of the governor’s party in the legislature. In general practice now, that honor falls to William Lamberth who is the House Republican caucus leader and Jack Johnson who is the Senate Republican caucus leader. Of course, the honor might be given to others, perhaps even including members of the other party, but generally we can expect that Rep. Lamberth and Sen. Johnson will be asked to introduce the Governor’s Red Flag law. Indeed, some reports from Sumner county indicate that Rep. Lamberth has recently that he would be the one filing the Governor’s legislation in the Red Flag special session. Sen. Johnson (unless there is another secretly recorded audio statement concerning what Sen. Johnson apparently actually believes) has not indicated publicly, to our knowledge, whether he will file the Governor’s Red Flag legislation in the Senate.

So what is the constitutional predicament?

All of these Legislators take the same constitutional oath. In order to keep their oath, they would have to believe that the Governor’s Red Flag law does not violate the constitutional prohibition contained the the Second Amendment or Article I, Section 26 of the Tennessee Constitution. In order to keep their oath, these legislators filing the Governor’s Red Flag legislation must be able to show that such legislation would not and could not, in any manner, “appear to me injurious to the people, or consent to any act or thing, whatever, that shall have a tendency to lessen or abridge their rights and privileges, as declared by the Constitution of this state.“

Perhaps a legislator could assert that they don’t believe in Red Flag laws and will not vote to pass them but that its his or her “duty” to file the Governor’s Red Flag legislation. Perhaps they could assert that while they will not vote for a Red Flag law they are willing to file it in order to give the Democrats and left leaning Republicans the opportunity to pass it. Perhaps they could argue that while they will not vote for it, they still believe that a Red Flag law does not violate the 2nd Amendment or any other provisions of the constitution and that such a law would never “lessen or abridge” a citizen’s rights.

Parse it any way possible but the fact is that any legislator who claims to be a conservative, who claims to support the constitutions, who claims to be a 2nd Amendment protector but who then either files or supports the Governor’s or anyone else’s Red Flag laws should be viewed with suspicion. Once the Governor’s special session gets here, perhaps the legislators will carefully consider their oaths of office and tell the Governor – no, just no. Will they do that? We will know in August.