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.
The “Bruen Basis”
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.
New laws that substantially restored rights protected by the Second Amendment:
None.
New laws that marginally aided rights protected by the Second Amendment:
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.
New laws that failed to support the rights protected by the Second Amendment:
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).
New laws that violate the Second Amendment:
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.
New laws that are neutral as to the rights protected by the Second Amendment:
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.