Tennessee Legislators need to support the effort to make Tennessee’s Constitution compliant with the Second Amendment.
The Tennessee Constitution violates the Second and Fourteenth Amendments. It must be amended as one of the steps to making sure that the rights that the United States Supreme Court has repeatedly held in Miller, Heller, McDonald and McDonald are vest in each of us are no longer in jeopardy under the “Jim Crow” amendment to the Tennessee Constitution that occurred in 1870.
How does the Tennessee Constitution violate the Second and Fourteenth Amendments?
The Second Amendment states in its operative phrase that “the right of the people to keep and bear Arms, shall not be infringed.” Tennessee’s constitutional provisions as written originally in 1796 was the closest to the Second Amendment’s prohibition on government action but it still reflected a restriction that the Second Amendment did not contain. The 1796 Tennessee Constitution protected the rights of the “free men” in Article 11, Section 26.
The “Jim Crow” effort took on more emphasis in the 1834 Amendment to the Tennessee Constitution which changed the phrase “free men” to “free white men”. Article 1, Section 26.
After the Civil War, the Tennessee Constitution was amended in again 1870. With that amendment, the language about “free men” and “white men” were eliminated but a phrase was added which purported to give to the state powers of equal unconstitutional purpose. In 1870, the language of Article 1, Section 26, the drafters added that “the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime.” That clause had the purpose to allow the state legislature to enact and continue Jim Crow laws under the pretext that they were crime prevention laws.
The Second Amendment has never contained language about “free men”, “white men”, any color, age, sex or national origin. It has never done anything but prohibit any government infringement of the right that pre-exists the constitution.
The United States Supreme Court’s decision in New York State Rifle and Pistol Association v. Bruen in June 2022 made clear that the prior practice, which federal district and appellate courts had developed, engaged in an “interest balancing” analysis where the courts would consider whether the governmental restriction had any reasonable purpose – such as crime prevention – even if the government restriction clearly impacted a right within the scope of the Second Amendment. The Supreme Court made clear in Heller and made even more clear in Bruen that a government cannot under any circumstance justify the infringement of a constitutionally protected right by asserting that it is reasonable, that it is in the public interest, that it promotes public safety or that it advances crime prevention. As stated in Bruen, only those government restrictions that constituted part of the nation’s historical tradition as of 1791 (or close analogues) can pass constitutional scrutiny.
It is beyond debate that the current Tennessee Constitutional provision violates the Second and Fourteenth Amendments.
Some Legislators have proposed and are supporting a Constitutional amendment that would repeal the existing unconstitutional provision and substitute the phrase “That the citizens of this State have a right to keep, bear, and wear arms.” (See Amendment 1 to HJR0038 by Rep. Jay Reedy and SJR0904 by Sen. John Stevens)
As of February 11, 2024, many state legislators have co-sponsored these resolutions but many more have not. On SJR0904, Sen. Stevens is the sponsor and Senators Bailey, Bowling, Hensley and Jackson are the co-sponsors. But, there are 33 Senators and most of them are Republicans!
As of February 11, 2024, HJR0038 is sponsored by Rep. Jay Reedy. Representatives who have co-sponsored the amendment, in the order in which they are listed on the state’s website, are Todd, Sparks, Doggett, Slater, Barrett, Capley, Moody, Grills, Fritts, Cepicky, Martin B, Russell, Littleton, Moon, McCalmon, Keisling, Lamberth, Bulso, Boyd, Gant, Davis, Bricken, Richey, Darby, Hill, Garrett, Farmer, Hurt, Butler, Cochran, and Warner. Again, there are 99 House members and a super majority of them are Republicans.
But this is not a Democrat or Republican issue. First, the amendment seeks only to remove an unconstitutional provision from the state’s constitution. Second, the amendment would eliminate over 225 years of unjust prejudice in favor of “free” or “white” citizens rather than all citizens. Third, the amendment would at the state level make clear that the state legislators, local governments and others government decision makers are constitutionally prohibited from engaging in any “interest balancing” that the Supreme Court has said the Second Amendment prohibits.
TFA has set up an easy to use email advocacy call to action tool that allows you to email your House and Senate members, the Lt. Governor, the Speaker of the House and Tennessee Governor with your request that they support amending Tennessee’s constitution. Use it today and share it with others!
Email Your Tennessee Rep
John Harris | Executive Director Tennessee Firearms Association
Joining and supporting TFA is an investment in the fight to restore our constitutional rights and to fight against politicians who are willing to sell their votes and your rights to whichever business interest gives them the most money!
