Attacking the 2nd

By Richard C. Archie 

Originally published in February 2017

Frank Cagle this Wednesday morning decided to use his position as a writer and a former editor for the Knoxville News Sentinel to influence and educate the public on the views of the left in regards to both the Tennessee State Constitution and the rights of the citizens that live and work in this state. The issue this time for the left is their pet peeve of gun ownership. What I have found worrisome about the left is how they exaggerate information even when the facts are laid before them in black and white. Cagle is no exception to that rule and that is not surprising.

So let’s go to it…. Cagle, in his article, in order to make a plausible argument, must first create the villain and in doing so he must attach as many negative adjectives as he possible can to bring the passion of the American reader to a boil. A word like scoundrels, rogues, blackguards, miscreants or lobbyists in the political world usually does the trick. Of course we are smarter than that. A lobbyist can be anything from a group of 10,000 to a group of one attempting to sway legislatures. But of course he wanted you to think the Tennessee Firearms Association (TFA) was out running around tossing money left and right. He wants you to believe the TFA is group of highly paid attorney’s rolling in dollars. The opposite is the truth. The TFA has no paid lobbyist and all who advocate are Citizen Activists.

Now let’s look at what he believes is his sound reasoning.

1st…. “Since the Republicans took control of the Legislature they have passed 15 or 20 gun bills. The expansion of Second Amendment rights, especially in light of the U.S. Supreme Court decision on the right to bear arms, is almost absolute.”

2nd…. Any reasonable gun rights legislation has long since been passed.

3rd….because of the Second Amendment you can’t put any restrictions on guns. Freedom of the press also allows for libel laws. Free speech doesn’t let you yell fire in a crowded theater. Freedom of religion doesn’t allow polygamy, snake handling or the worship of marijuana pipes. To suggest that there can be no safety restrictions on deadly weapons is ridiculous.

The learned Mr. Cagle believes that the attempt of right minded legislatures to take back the law to its original Constitutional position of 1796 which stated: “That the freemen of this state have a right to keep and to bear arms for their common defense” is foolish.

The Tennessee State  Constitution was rewritten in 1870 to state that under Article 1 § 26:

“That the citizens of this State have a right to keep and to bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime.”

Interestingly enough the portion behind the semicolon was added by Democrats in 1870 to preclude freed Black slaves from being able to provide for their own defense.

In that same year, the Supreme Court of Tennessee opined in Andrews v. State, 50 Tenn. 165, 181 (1871):

The Tennessee Supreme Court has recognized that the General Assembly has the authority, under this section of the Constitution, to enact legislation to regulate the wearing and carrying of arms in public.”

Any such enactment; however, “must be guided by, and restrained to this end, and bear some well-defined relation to the prevention of crime, or else it is unauthorized by this clause of the Constitution.

All right, that pretty well settles it doesn’t it… well not quite! In 1989, the Tennessee Democrat controlled legislature unveiled  Tenn. Code Ann. § 39-17-1307, which remains on the books today. The statute states “A person commits an offense who carries, with the intent to go armed, a firearm or a club.”

Unlike gay marriage, United States Supreme Court rulings mean very little on this issue so at a glance we still have some ways to go.

Notes:

To this point we have addressed two of his complaints but still must address the third and I am not exactly sure how to do it.

Consider these points:

Unlimited freedom of speech

I have found no law on the books that says you cannot yell “Fire” but if your actions cause grievous harm there could be consequences if there was no fire at the time. The same is true of libel which is generally the work of small minds. You still have the right to say it, but unlike Free Speech, when it comes to guns, you are guilty before you take any action….. there is a term for this and I have gone blank as to what it is.

In regards to any existing legislation in regards to guns.

With respect to the vetting of bills which deny these said Rights to bearing arms, what empirical proof has this legislature (or any) ever offered that denying law abiding citizens the ability to provide for their own defense decreases crime? What single law on the books does Law Enforcement of Tennessee enforce to keep criminals from using firearms (or clubs) in the commission of crimes?

Coming to a close with these points.

The contiguous States to Tennessee with the exception of Georgia all have Constitutional, Permitless Open Carry, I have read nothing of the mayhem caused by their systems in Mr. Cagle’s writings about Kentucky or Arkansas having any problems with that prescription, them or any of the other seven (7) States touching Tennessee that allow their Citizens access to their Rights without paying a tax, or taking a class. Every person who is not a criminal can carry a loaded firearm in their vehicle now in Tennessee without permit or training. How many crimes have been attributed to that law?

Currently 14 States allow their non-criminal Citizens the Right to bear arms in some manner without government intervention re permits or training. Texas is currently considering the same action, it would certainly be a shame for Tennessee’s foster child of a State to pass us on the way back from Democrat controlled sanctions on a Natural Right. New Hampshire just passed the same consideration.

Ending with the founding fathers quote……

The original intent and purpose of the Second Amendment was to preserve and guarantee, not grant, the pre-existing right of individuals to keep and bear arms. Although the amendment emphasizes the need for a militia, membership in any militia, let alone a well-regulated one, was not intended to serve as a prerequisite for exercising the right to keep arms.

In his popular edition of Blackstone’s Commentaries on the Laws of England (1803), St. George Tucker (see also), a lawyer, Revolutionary War militia officer, legal scholar, and later a U.S. District Court judge (appointed by James Madison in 1813), wrote of the Second Amendment:

The right of the people to keep and bear arms shall not be infringed, and this without any qualification as to their condition or degree, as is the case in the British government.

In the appendix to the Commentaries, Tucker elaborates further:

This may be considered as the true palladium of liberty… The right of self-defense is the first law of nature; in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Whenever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.

The Tennessee State Constitution declares under Article 1 § 26 “That the citizens of this State have a right to keep and to bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime.”

The Tennessee firearms Association (TFA) has no paid lobbyist, all who advocate are Citizen Activist.

If we are to talk about Tennessee Constitutional Carry, maybe we should look at the Tennessee Constitution.

Constitutional Carry as he puts it is just that, Constitutionally protected. From the Tennessee Declaration of Rights, Article 1 § 26. Weapons; right to bear arms states thus, “That the citizens of this State have a right to keep and to bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime.”

(Interestingly enough the portion behind the semicolon was added by Democrats in 1870 to preclude freed Black slaves from being able to provide their own protection for themselves via TCA code section 39-17-1307.  Unlawful carrying or possession of a weapon: Which via statue states in a) (1) “A person commits an offense who carries, with the intent to go armed, a firearm or a club.”)

An offense is a crime, and as such denies the Citizen the Right to avail themselves of their Constitutionally protected Right, as it stands today, any person (discounting Law Enforcement or Judges, they have special privileges) is a criminal that carries a loaded gun off of their personal property sans paying a tax for a license or permit. A Right taxed is no longer a Right.

Mr. Cagle intones that 15 or 20 gun bills have been passed by the Republican Majority (which is it, one so learned should be able to do some basic math I would think, or is conjecture sufficient to make a point?) attempting to move us back to the station we started from in 1796 when the Constitution said: “That the freemen of this state have a right to keep and to bear arms for their common defense.” To reiterate, this was changed in 1870 to the current wording. In that same year, the Supreme Court of Tennessee opined in Andrews v. State, 50 Tenn. 165, 181 (1871): “The Tennessee Supreme Court has recognized that the General Assembly has the authority, under this section of the Constitution, to enact legislation to regulate the wearing and carrying of arms in public. Any such enactment; however, “must be guided by, and restrained to this end, and bear some well-defined relation to the prevention of crime, or else it is unauthorized by this clause of the Constitution.”

With respect to the vetting of bills which deny these said Rights to bearing arms, what empirical proof has this legislature (or any) ever offered that denying law abiding citizens the ability to provide for their own defense decreases crime? What single law on the books does Law Enforcement of Tennessee enforce to keep criminals from using firearms (or clubs) in the commission of crimes?

Per the directive of our highest court and the wording of our Declaration of Rights, which by the away were so strongly held as a necessary to Liberty by our Founders that they added this: Article XI § 16. Bill of rights declared inviolate, “The declaration of rights hereto prefixed is declared to be a part of the Constitution of this State, and shall never be violated on any pretence whatever. And to guard against transgression of the high powers we have delegated, we declare that everything in the bill of rights contained, is accepted out of the general powers of government, and shall forever remain inviolate.” Pretty strong words from folks who sacrificed blood and treasure to build this Republic, and added to this admonition as they foresaw the need to restrain our elected employees with this chain, Article X § 2. Oath of office; general assembly, “Each member of the Senate and House of Representatives, shall before they proceed to business take an oath or affirmation to support the Constitution of this State, and of the United States and also the following oath: I ………. do solemnly swear (or affirm) that as a member of this General Assembly, I will, in all appointments, vote without favor, affection, partiality, or prejudice; and that I will not propose or assent to any bill, vote or resolution, which shall 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.”

The contiguous States to Tennessee with the exception of Georgia all have Constitutional, Permitless Open Carry, I have read nothing of the mayhem caused by their systems in Mr. Cagle’s writings about Kentucky or Arkansas having any problems with that prescription, them or any of the other seven (7) States touching Tennessee that allow their Citizens access to their Rights without paying a tax, or taking a class. Every person who is not a criminal can carry a loaded firearm in their vehicle now in Tennessee without permit or training. How many crimes have been attributed to that law?

Currently 14 States allow their non-criminal Citizens the Right to bear arms in some manner without government intervention re permits or training. Texas is currently considering the same action, it would certainly be a shame for Tennessee’s foster child of a State to pass us on the way back from Democrat controlled sanctions on a Natural Right. New Hampshire just passed the same consideration.

The attached article speaks to the path this legislation is on in our Republic:
http://www.nationalreview.com/article/444212/constitutional-carry-states-adopting

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