On February 6, 2024, Rep. William Lamberth presented his House Bill 1640. Rep. Lamberth seeks to expand the circumstances under which access to firearms (but not other deadly weapons) is prohibited with respect to individuals who have been “adjudicated as a mental defective or judicially committed to a mental institution.” The restriction applies even to those who are not institutionalized but are allowed to exist in the community. It is important to note in this lengthy video clip the question and comments from Committee Chairman Bud Hulsey as well as the comments from Rep. Monty Fritts.
Chairman Hulsey asked a question that must be asked of every bill sponsor who presents any legislation that touches on any way on the rights protected by the broad scope of the Second Amendment. Chairman Hulsey asked Rep. Lamberth to address the “Bruen Basis” for his legislation. (See video at time mark 27:45) As discussed in the TFA’s “Bruen Basis” writing, that term refers to the Supreme Court’s finding in its June 2022 decision in New York State Rifle and Pistol Association v. Bruen, No. 20-843 that the government bears the heavy burden for any existing law or proposed legislation to demonstrate that the law is consistent with the “nation’s historical tradition” as of 1791 (the year the Bill of Rights was ratified by the states) of firearms regulation. Absent a clear showing that a majority of states had such a restriction (or an acceptable analogue) as of 1791, then Supreme Court has held that such law or, in this instance, proposed law violates the 2nd and 14th Amendments and is therefore unconstitutional. The Court stated:
In Heller and McDonald, we held that the Second and Fourteenth Amendments protect an individual right to keep and bear arms for self-defense. In doing so, we held unconstitutional two laws that prohibited the possession and use of handguns in the home. In the years since, the Courts of Appeals have coalesced around a “two-step” framework for analyzing Second Amendment challenges that combines history with means-end scrutiny.
Today, we decline to adopt that two-part approach. In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. 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.” Konigsberg v. State Bar of Cal., 366 U. S. 36, 50, n. 10 (1961).
Bruen, p. 8
The Supreme Court decision in Bruen and many federal decisions implementing it since June 2022 require that the government (or here a bill’s proponent) be able to specifically identify those laws or restrictions that existed in 1791 that constitute the historical basis for the proposed restriction. It is not enough that the law might be, today, reasonable or that it might have some potential for public safety. Justifications based solely on reason or public safety are expressly precluded by the Supreme Court’s rejection of the “means-ends” analysis that formed the second prong of some decisions by the lower appellate courts. According to the Supreme Court, if the law or proposed legislation lacks a clearly identified “national historical tradition” of regulation that existed as of 1791, it is unconstitutional.
In response to this question from Chairman Hulsey, Rep. Lamberth stated that in the historical precedent of this country and “quite frankly going back thousands of years” all societies recognized that there are individuals who are criminally insane. While that may be a true statement, it does not satisfy the burden that the Supreme Court placed on the government to demonstrate that a proposed law is constitutional. Certainly, there may be evidence of a national historical tradition regarding that portion of the proposed law which would limit access of firearms or other weapons to individuals while institutionalized by the government as mentally incompetent to stand trial. But this proposed law also seeks to make it a crime for those who are not institutionalized to purchase or possess firearms. We look forward to Rep. Lamberth’s presentation demonstration that there was as of 1791 a national historical tradition that banned firearms due to mental health concerns from people who were allowed to be otherwise free in society and distributed within the community.
Rep. Fritts also raised another interesting question related apparently to a proposed amendment. That topic concerned why the proposal from Rep. Lamberth was limited to firearms. Why not include all dangerous weapons? Why not prohibit these presumptively dangerous, at least based on the legislation, individuals from having access to motor vehicles or driver’s licenses? Indeed, if they are in fact determined to be mentally incompetent, is there a reason to suspend or limit their right to vote or exercise First Amendment freedoms?
The importance of this committee hearing is that Chairman Hulsey is showing concern to make inquiry as to whether proposed legislation is even a topic that the Legislature can constitutionally consider. Questions about the “Bruen Basis” should be asked and pressed with respect to every proposed bill, whether good or bad, to ensure that the Legislature in Tennessee is not exceeding its constitutional boundaries by enacting or proposing laws that do or may violate the Second and Fourteenth Amendments.
Contact your legislators to insist that they also take the time to become familiar with the Supreme Court’s “Bruen” mandate and that they be prepared to make sure that any proposed legislation – whether good or bad – is explored in each subcommittee and committee, as well as on the respective Floors, on the issue of whether the proposed legislation is constitutional under the Bruen criteria.
John Harris | Executive Director Tennessee Firearms Association
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