The 2023-2024 Legislative session has concluded and the facts could not be any clearly. The 113th General Assembly, which operated under a Republican super majority in both houses with Lt. Governor Randy McNally in charge of the Senate and Speaker Cameron Sexton in charge of the House, failed to pass any significant legislation that would have materially removed the infringements that exist under Tennessee law on the rights of those in Tennessee which rights are protected from government infringement by the Second and Fourteenth Amendments.

In reviewing this report, it is necessary first to understand the constitutional context within which this review is made. That understanding will involve the application of the United States Supreme Court’s June 2022 decision in New York State Rifle and Pistol Association v. Bruen, No. 20-843.

In Bruen, the Supreme Court made clear that the approaches that many lower courts, legislators and government officials, including those in Tennessee, have relied upon to knowingly infringe the rights protected by the Second Amendment were both unconstitutional and otherwise invalid. 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,” must be preserved free from infringement by federal, state and local governments. See, Bruen, at pp. 2122, 2134.

Next, the Supreme Court held that, “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.  In light of this protection and in order to constitutionally justify its law or regulation, the government (including legislators and members of the administrative branch) may not simply posit that the law or regulation promotes an important interest which the Court referred to as “interest balancing.”  Rather, the government, including its legislators, must demonstrate that the law or 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 government’s law or regulation falls outside the Second Amendment’s ‘unqualified command.’”  Bruen at p. 2126. 

This second point contains two statements that are critically important. The first statement is that under the Bruen standard, if an activity (e.g., carrying in public) is an activity that falls under the Second Amendment’s negative mandate (“shall not be infringed”), then such a court shall presumed legally and constitutionally that the activity is protected from any government infringement – period. That is, once it is determined that the conduct is protected by broad scope of the Second Amendment, the government bears the burden, that is it “must demonstrate”, that the regulation (i.e., a statute, law, regulation, ordinance, etc.) is “consistent with this Nation’s historical tradition”. If the government cannot or could not demonstrate by clear evidence that the regulation, perhaps a proposed law, is consistent with the Nation’s historical tradition, then the law or regulation is prohibited by the Second Amendment’s negative mandate.

Further, the “Bruen Basis” requires the government to not only prove that the regulation is consistent with the Nation’s historical tradition, but the Supreme Court made clear that the national historical tradition that is relevant is the tradition that existed as of 1791 when the states ratified and adopted the Second Amendment. In the words of the Court that requires a determination of what the “public understanding of the right to keep and bear arms” was as of 1791.  Bruen at pp. 2137–38.

The Supreme Court also considered whether the government’s frequent reliance on “public safety” or modern necessity was relevant to the question of whether specific conduct is protected by the Second Amendment’s negative mandate. The Supreme Court made clear that there are no “ifs, ands, or buts,” and it does not matter (even a little bit) how important, significant, compelling, or overriding the government’s justification for or interest in infringing the right might be.  It does not matter whether a government restriction “minimally” versus “severely” infringes the rights protected by the Second Amendment.  There are no relevant statistical studies to be consulted.  There are no sociological arguments to be considered.  The ubiquitous problems of crime or the density of population do not affect the equation.  All of these “public interest” and “reasonableness” grounds for infringement are unconstitutional and irrelevant. The only appropriate inquiry, according to Bruen, is what was the “public understanding of the right to keep and bear arms” at the time of the ratification of the Second Amendment in 1791…”  Bruen at pp. 2137–38.

Finally, Bruen makes clear that the government’s burden to establish the historical tradition is not satisfied by pointing to one or even a few states or territories that had such law in 1791 (much less later). It is irrelevant that that the law or proposed law is consistent with laws passed in the late 1800’s, in the early part of the 20th Century (for example the National Firearms Act), later in the century (such as the 1968 Gun Control Act) or even much later restrictions such as those that the ATF has tried to impose or that Tennessee’s Republican controlled Legislature has enacted in just the last 14 years. Further, it is irrelevant that Tennessee has had any particular law over the last 2 centuries. Bruen makes clear that the government must demonstrate a “national” tradition – not a tradition embraced by one or even a few states.

The Supreme Court’s decision in Bruen is the litmus test against which the Tennessee’s Legislature actions (and failures) in 2024 must be viewed.

Note that not all bills tracked in 2024 are being reviewed even though some have been enacted into law.

None. 

Public Chapter 738 by Sen. Joey Hensley and Rep. Gino Bulso. This law is a minor adjustment to an existing law that allowed private schools to adopt a firearms policy thus opting out of the default state statute relative to firearms on school grounds. Existing law applied to K-12 schools but was silent on schools that were pre-K-12. This law added pre-K to the existing K-12 description.

Public Chapter 791 by Sen. Joey Hensley and Rep. Gino Bulso. This law is known as the Laken Riley Act of 2024. This law generally prohibits a public colleges and universities from prohibiting possession of non-lethal weapons on campus. There are three exceptions in the law. The first is that the law would not apply to any K-12 facilities on the campus which suggests that teachers, staff and even visitors to public K-12 facilities that might be otherwise located on a public college or university campus would be exposed to criminal charges for possession non-lethal weapons in those areas. Second, the law does not apply in “building” where either armed security is provided or the building if contractually designated as a weapon free zone. The armed security and/or contractual exceptions appear to give those public colleges and universities a means of avoid the law a mechanism to do so.

Public Chapter 773 by Sen. Jack Johnson and Rep. Rusty Grills. This law is identified as the “Second Amendment Financial Privacy Act.” Its purpose is to prohibit the use of merchant category codes with respect to “payment card transactions” if such codes would indicate or designate that the transaction involved a “firearms retailer.”

Public Chapter 1062 by Sen. Janice Bowling and Rep. Jody Barrett. This law provides that the Legislature “preempts the entire field of legislation regarding extreme risk protection orders to the exclusion of all county, city, town, municipality, or metropolitan government law, ordinances, resolutions, enactments, or regulation.” Although this preemption likely already existed under Tenn. Code Annotation § 39-17-1314, this law appears to have been enacted specifically to address the efforts of Memphis’ local government to enact a local Red Flag law.

Pubic Chapter 801 by Sen. Paul Bailey and Rep. Ryan Williams. This law purports to authorize a faculty or staff member of a public school to carry a concealed handgun on school grounds subject to certain conditions. Those conditions require that the school employee have a Tennessee enhanced handgun permit. The individual obtain at their own cost and expense at least “forty (40) hours of training specific to school policing that includes hands-on instruction with the authorizing law enforcement agency and that has been approved by the peace officer standards and training (POST).” The individual must get the 40 hours of training annually. The decision to “opt in” to this law requires the concurrence of the school’s principle, the local education authority and the chief law enforcement officer. The individual must submit to, at their cost, a mental health evaluation by “a Tennessee licensed healthcare provider, who is qualified in the psychiatric or psychological field and who contracts with the authorizing law enforcement agency, as being free from any impairment, as set forth in the current edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM) of the American Psychiatric Association at the time of the examination, that would, in the professional judgment of the examiner, affect the faculty or staff member’s ability to safely possess and carry a concealed handgun on the grounds of a school.” Further, there are numerous places on the school campus where such otherwise authorized individuals would commit a felony if they were to be armed in those locations which include “stadiums, gymnasiums, or auditoriums when school-sponsored events are in progress; … in meetings regarding disciplinary matters; … in meetings regarding tenure issues; … in a hospital, clinic, .or office where medical or mental health services are the primary services ·provided….”

Predictably, almost every major school system in the state has or will refuse to participate in this program. Nothing about this new laws satisfies any aspect of the Bruen decision.

Public Chapter 784 by Sen. Jon Lundberg and Rep. William Lamberth. This law is known as “Jillian’s law.” It creates new criminal law procedures that pertain to individuals who are charged in the criminal justice system. The law creates a “rebuttable presumption that a person meets the standards in subdivisions (a)(1)-(4) for judicial commitment if the person was charged with a felony or Class A misdemeanor and found by a court to be incompetent to stand trial for the offense due to an intellectual disability.”  This law is listed as one that fails to protect rights that are within the scope of the Second Amendment because it failed to address the Bruen requirements that the proponents of the law and the government establish that the restriction imposed by the law is one that existed as part of the nation’s historical tradition as of 1791. Specifically, the law creates a new criminal offense under Tenn. Code Annotation § 39-17-1307(i) which provides that “[a] person commits an offense who carries or possesses a firearm and has been adjudicated as a mental defective or judicially committed to a mental institution.” There is, however, no evidence connected to the bill’s findings or preamble that either of these conditions were factors that, under the nation’s historical traditions as of 1791, would have applied to create a criminal offense if someone having those histories possessed a firearm. Further, the law contains no provisions, such as in compliance the the federal government’s NICS Improvement Act of 2007 or the provisions of existing Title 16 of Tennessee law to grant individuals “relief of [firearms] disabilities.” (see, e.g., Tenn. Code Ann. § 16-10-205).

Public Chapter 973 by Sen. Paul Bailey and Rep. Ryan Williams. This law applies to juvenile offenders who are at least 14 years of age or older. The law identifies certain specific categories of crimes, such as any crime involving the “use or display of a firearm” and provides that those individuals shall be prohibited from purchasing or possessing firearms, obtaining a handgun permit, carrying under the permitless carry law, etc., until they either attain the age of 25 and/or have their rights restored to them. This law is listed as one that violates the rights that are within the scope of the Second Amendment because it failed to address the Bruen requirements that the proponents of the law and the government establish that the restriction imposed by the law is one that existed as part of the nation’s historical tradition as of 1791.

Public Chapter 903 by Sen. John Stevens and Rep. Rusty Grills. This law creates a Class B misdemeanor if someone “communicat[es] a threat concerning a school employee or student.” The threat must be “a threat to cause the death of or serious bodily injury.” The threat must involve “use of a firearm or other deadly weapon.” It is not clear why only those threats of death or serious bodily injury that are directed at schools or students are made an offense as opposed to threats of this category made to anyone else. In addition, another concern with this law is that it defines “school property” to include not just a school’s campus but any “other property owned, used, or operated by” a public or private school. Thus, the law could apply if the threat occurred on a private residence, in the middle of a public forest, or at any other location so long as that “property” was “used” by a school.

Public Chapter 729 by Sen. Joey Hensley and Rep. Todd Warner. In those instances where a public school has not entered into a memorandum of understanding with the local law enforcement agency for the assignment of one or more school resources officers, this law allows the law enforcement agency to assign one or more of the department’s officers as a school resource officer. The law details the procedure to be followed.

Public Chapter 746 by Sen. Jack Johnson and Rep. Jason Zachery. This law is classified as a consumer protection measure and is described on the Legislature’s website as one that, “[a]s enacted, requires financial institutions and insurers to make determinations about the provision or denial of services based on certain analysis; prohibits financial institutions and insurers from denying or canceling services to a person, or otherwise discriminating against a person, based upon certain factors, including the person’s political opinions, speech, or affiliations, or religious beliefs, religious exercise, or religious affiliations.” Although the measure is described to ostensibly protect various categories of individuals, including Second Amendment advocates, there is some question as to what impact it would have since, with respect to financial institutions, it only applies to institutions with over $100 BILLION in assets.

Public Chapter 800 by Sen. Paul Bailey and Rep. Chris Todd. This law starts in the 2025-26 school year and requires that age appropriate safety training be provided in public schools regarding firearms. The law requires that the content be “viewpoint neutral on political topics, such as gun rights, gun violence, and the Second Amendment to the United States Constitution;” and that the training “not include the use or presence of live ammunition, live fire, or live firearms.” Thus, rather than provide clear instruction on why the Second Amendment exists and the safe and responsible use of firearms, the law requires more of a “run and tell” approach towards firearms, even for high school seniors. The law states that the content must “[t]each students: (A) Safe storage of firearms; (B) School safety relating to firearms; (C) How to avoid injury if the student finds a firearm; (D) To never touch a found firearm; and (E) To immediately notify an adult of the location of a found firearm;”

2024 demonstrates the failed leadership of the Tennessee Republican party that controls the Legislature and the office of Governor.

The foregoing outlines just some of the failures of the Republican party that controls, through Bill Lee, Cameron Sexton and Randy McNally, and their respective party leaders, the policies of this state. Although taking sworn oaths to defend our constitutional rights, they have ignored or reduced them.

The foregoing also demonstrates that they have, as a party under their chosen leadership, blatantly ignored the Second Amendment and the Supreme Court.

Indeed, the gun control advocates that used Covenant as a means to reorganize and fundraise in an effort to further infringe our rights have now praised 2024 as the first year that “[Tennessee’s] lawmakers voted down top priorities of the Tennessee Firearms Association (TFA) and passed the first substantive restriction on firearm possession since 2009″ (an apparent reference to Public Chapter 973 by Sen. Paul Bailey and Rep. Ryan Williams). These gun control advocates also praised Republican House leadership member William Lamberth as a “champion [of] firearm safety legislation.” See, Opinion piece, Tennessean May 28, 2024)

Tennesseans deserve champions, particularly in the Legislature, who will unquestionably honor the oath to protect and defend our rights as protected by the constitutions. Tennesseans deserve champions who will honor the Supreme Court’s several holdings on the scope of the Second Amendment’s unqualified mandate. Tennesseans can perhaps advance that objective in the 2024 election cycles.