January 4, 2023
Will Tennessee’s GOP Legislature finally honor the Second Amendment in 2023?
Tennessee Firearms Association started working with state legislators in
1995. At that time, the Tennessee Legislature was in the total control
of Democrats in both the House and the Senate. At that time, the
chairmen of the respective Judiciary committees were rural, seasoned
trial attorneys who, frankly, worked with Tennessee Firearms Association
on some of the legislation that was being discussed, just as they
worked with rural Republicans in the Legislature.
In discussions
with Legislators back in the “early days”, we were cautioned by some of
the 2nd Amendment friendly legislators, including Democrats, about how
things worked in the Tennessee Legislature. They were very open about
which legislators they felt were Second Amendment supporters and which
legislators we should, well let’s say, not consider as sponsors for
legislation.
For example, one Nashville area legislator often
talked about how the “best way to kill a piece of legislation was to
sponsor it”. The legislator explained that by sponsoring the
legislation the legislator could totally control it. They had control
over whether it was placed on the calendar to be heard in subcommittees,
committees or even on the floor. They had control over “friendly
amendments”. They had control over whether adverse amendments should
cause the legislation to be pulled. They even had some control over
asking “experts” to testify as such in committee hearings. Sponsors
had then and have now a lot of power over legislation, how its amended,
what the fiscal note says, and whether it moves through the committees.
In another context, friendly legislators explained how
legislators could take advantage of the House and Senate rules to make
it appear that they were “gun friendly” when they were not. This
misdirection could include stunts like campaigning that they were
“strong Second Amendment supporters”, campaigning with photos of
themselves hunting, shooting and/or at the range and other public
representations that were difficult to disprove. There were other
stunts as well. These other stunts could include things like voting
against a bill in a committee and then at the last minute – once the
damage was done – directing the clerk to record the legislator’s vote
other than what it had been – the “Jim Colely” stunt.
Another tactic would be to disregard roll call recorded votes and
allow the committee chair to rule in his or her discretion on so called
“voice votes”.
In yet another context, friendly legislators
explained that sometimes they knew from caucus meetings and/or
information from leadership or even members in the other house, that the
legislation would never pass. Perhaps a fiscal note would kill it,
perhaps it would be sent to “summer study” or perhaps it would just
somehow never get to the floor. Knowing that information – the
predestined future of the legislation – would allow a legislator to
speak out and even vote for legislation that they really did not support
but they knew that doing so would give them the ability to claim that
they “voted for” or “supported” the legislation but use the excuse that
“the other house” or “a committee on which I do not serve” killed it.
All
of these are tricks of the trade and tricks which can mislead voters
and constituents on where specific legislators stand on the Second
Amendment or other issues. This makes it hard to do vote based
scorecards on legislators. Instead, you have to look at legislative
results – did the legislation get enacted – rather than individual
actions and statements that may be calculated to mislead.
We
have seen some evidence of this in the last 13 years. For example, in
March 2021, Nashville WTN radio host Brian Wilson discussed the
governor’s permitless carry legislation with House Speaker Cameron
Sexton. In that interview Speaker
Sexton said he expected that there would be 58 to 62 votes for the
Governor’s 2021 permitless carry bill, assuming that there were no
amendments. However Speaker Sexton felt that potentially approximately
10 Republicans would vote against even the Governor’s bill if it were
amended to make it real constitutional carry. But, Speaker Sexton never
named who those House Republicans were that would not vote for true
constitutional carry in Tennessee.
As we look forward to 2023,
will there be transparency from the Legislature on who specifically
does and does not support real constitutional carry (assuming it even
gets filed)? Will there be transparency regarding which legislators
will or will not support eliminating gun free zones in non-sensitive
places as Justice Thomas explained is prohibited by the 2nd Amendment in
the United States Supreme Court’s June 2022 decision in the case of New York State Rifle and Pistol Association, Inc. v. Bruen?
Will there be transparency concerning possible legislation to protect
those forced to use self-defense force from abusive prosecutions by law
enforcement and district attorneys such as was suffered by Kyle
Rittenhouse? We can make a judgment based on past levels of
transparency as an indicator of future expectations.
One area to
be watching in 2023 and beyond is the potential that Second Amendment
legislation may move successfully through one house, perhaps the House
of Representatives, but be stalled, derailed, defeated or otherwise
trampled by the other house, perhaps the Senate. I have heard
legislators say, and in fact some in leadership say, things to the
effect of “we can pass it in the House but we don’t control what happens
in the Senate” or vice-versa. But is that entirely accurate?
The
Legislature is a two part body. To do anything material, both houses
have to agree and the agreement must match exactly. Two things the
Legislature must do each year is a) pass a budget and b) adjourn. One
house cannot do either conclusively without the other house’s
concurrence. So, what would happen if, for example, the House were to
pass real constitutional carry in 2023 but the Senate was giving
indicators that it would not? Clearly, the House could delay or defer
passing a budget. It might also delay or defer adjourning. It could
also delay or defer passing any number of the expected 1000 or so bills
that will be introduced in the Legislature in 2023, including some which
presumably at least a majority of the Senators would want to see
enacted into law. Both houses have political power that can be flexed
when directed at the other.
A fundamental constitutional right
– which Tennessee law currently tramples into nothing more than a
highly regulated privilege – might be a topic on which political power
should be flexed. But, of course, the fact that such an option exists
does not mean that it would be used because, to do so, might indicate
that someone is not a “team player”.
Tennessee Firearms Association's board members are more than willing to meet with any legislators and, particularly, those in leadership about issues that Tennessee Firearms Association will be monitoring in 2023. Obviously, we would prefer to meet and resolve any concerns that we might have concerning future legislation or amendments before those items are filed.
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