February 20, 2023
What to watch for in this week's legislative hearings. At the end of last week, TFA sent out the calendar that has a list of the bills that are set for hearings this week in various Legislative committees and subcommittees. Those hearings will be streamed live from the legislature's website. In addition, you will be able to watch the recorded videos later either by committee or by looking up the individual bill and clicking on each bill's video tab.
TFA encourages you to pay close attention to the discussions not only on the bills but on any amendments that might be proposed. There are many things to watch for but this year there is something special.
In June 2022, the United States Supreme Court decided a landmark case styled N.Y. State Rifle & Pistol
Ass’n v. Bruen, 142 S. Ct. 2111 (2022). That case changes significantly the extent to which a state even has the discretion to regulate the civilian ownership, possession or wearing of firearms. Much of the discretion that Tennessee has exercised for over 2 centuries to infringe your rights has now been clearly terminated.
In Bruen the Supreme Court stated that the
Second and Fourteenth Amendments together guarantee individuals not only the
right to “keep” firearms in their homes, but also the right to “bear arms” in
public, meaning the ability of “ordinary, law-abiding citizens” to carry
constitutionally protected arms “for self-defense outside the home,” free from
infringement by either federal or state governments. Id. at 2122, 2134. The Bruen
Court held that, “when the Second Amendment’s plain text covers an individual’s
conduct, for example carrying firearms in public for self-defense, the Constitution presumptively protects that conduct.
A substantial reduction in the state's authority to regulate who can carry firearms, what firearms can be carried and where the individual can carry the firearms was also imposed by the Supreme Court. It said, in Bruen, that to justify any statute or regulation, the government may
not simply assert that the regulation promotes an important interest - for example, "public safety." 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.’” Bruen at 2126.
But what did the Supreme Court mean when it used the phrase the "nation's historical tradition"? The Supreme Court said that this phrase meant that the only appropriate inquiry is what the “public understanding of the right to keep and
bear arms” was during the ratification of the Second Amendment in 1791, and
perhaps during ratification of the Fourteenth Amendment in 1868. Bruen
at 2137–38.
As you watch the legislative discussions and perhaps the testimony of representatives of law enforcement and state agencies in this and the coming weeks, the first factor that must be established with respect to any proposed infringement or restriction is "did the majority of the states as of 1791 have such a restriction" or, what the court referred to as an "analogue." If not, then, according to the United States Supreme Court, the existing or proposed statute or regulation is prohibited by the Second and Fourteenth Amendments.
It really does not matter what the restriction is or even whether it has been around for decades. It does not matter if its a restriction based on age, prior criminal history, perhaps a DUI history, a history of the commission of certain crimes or even a restriction based on being in certain buildings or locations. Absent clear evidence from the state that such a restriction was part of the "national historical tradition" as of 1791, it cannot continue to exist or be enacted today.
Watch the debates. Take note of what is being said and by whom. Ask, "are they advancing policies consistent with the standards that the United States Supreme Court has now imposed and, if not, why not?"
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