There are many constitutional problems with respect to how Tennessee’s existing and even proposed laws fail to comply the the Second Amendment’s “shall not be infringed” mandate. Indeed, too many of Tennessee’s existing and proposed laws appear to add a phrase to the Second Amendment to make it read “… the right of the people to keep and bear Arms, shall not be infringed unless such infringements are reasonable, or they promote public safety, or [insert excuse].
Our Founding Fathers and, of more significance, the ratifying states were suspicious enough of those who might hold government offices in the future that they understood that the phrase “shall not be infringed” must be followed with a “period” and with absolutely no qualifiers.
Today, let’s look at the initial issue of whether Tennessee law unconstitutionally infringes the right of citizens to keep and bear arms in the context of carrying a firearm for self-defense or other lawful purposes.
REAL “constitutional carry” means that it is not a crime to carry a firearm for a lawful purpose, such as self-defense. Nor is it a crime to carry a firearm in most places – including public places – unless the place falls into a very narrow and limited exception. It is critical to understand that while a state may have a “permitless carry” law, most of those laws are not constitutional carry laws.
Tennessee’s laws fail to present a statutory scheme that meets the minimum requirements for Constitutional Carry. There are several reasons for that failure that are discussed in more detail in this report. If you have been told otherwise, compare what you were told with the details of the actual laws.
Indeed, if you review the details (as this report does) including the statements of some Legislators regarding the legislative history of what Bill Lee claimed was constitutional carry in 2022, it becomes quite clear from the legislative history and the statements of Legislative leadership, including Speaker Cameron Sexton, that the Legislature knew that the 2022 legislation was not constitutional carry when they passed it.
However, Tennessee’s laws do contain a “permitless carry” provision. Tennessee’s permitless carry provision is not constitutional carry although some government officials and others have claimed it is. No, Tennessee’s “permitless carry” scheme is very limited and it clearly fails to satisfy the United States Supreme Court’s 2nd Amendment analysis as set forth in New York State Rifle and Pistol Association v. Bruen, No. 20-843. The scheme that Bill Lee pushed and that the Legislature enacted in 2021 was nothing more than a defense that the citizen bears the burden of raising if stopped, detained, questioned or criminally charged.
This is one reason, of perhaps at least seven reasons, why the permitless carry law is not constitutional carry. (Refer to the two reports in the 2nd and 3rd paragraphs for more details).
Tennessee law provides in Tennessee Code Annotated § 39-17-1307(a)(1) that “[a] person commits an offense who carries, with the intent to go armed, a firearm or a club.” That means it is a crime to carry any firearm in Tennessee “with the intent to go armed”.
That law is so broad that it is even a crime to carry a firearm with the intent to go armed on your own property, in your own home, or even with a permit. That is a true statement because Tennessee Code Annotated § 39-17-1308 makes each of those factors “defenses” to the criminal charge. When something is a “defense” or an “exception” to a criminal charge, the burden is on the citizen to prove to a law enforcement officer or a jury that the individual’s conduct satisfied the elements of the defense. See, Tennessee Code Annotated § 39-11-201(a), § 39-11-202 and § 39-11-203.
Since REAL constitutional carry means that the conduct is simply not a crime, Tennessee’s two handgun permit laws and its permitless carry scheme cannot be categorized as constitutional carry because all three of these means by which an individual can carry a firearm “with the intent to go armed” are nothing more that defenses that the you have, and that you bear the burden of proving to some government official or jury, if you choose to carry a handgun with “the intent to go armed” – even on your own property.
As you start receiving updates about the proposed laws in 2024 that Bill Lee may announce that he wants or that Legislators are touting, you need to be prepared to review each such piece of legislation for its “Bruen Basis.” Do not be tempted to support or accept a proposed “reasonable” or “common sense” proposal if the proposal fails to satisfy the test that the United States Supreme Court has mandated must be applied to pass 2nd Amendment scrutiny.
Further, you need to be ready to demand that every legislative sponsor and every legislator who indicates that they plan to vote for or against any 2nd Amendment related legislation can accurately provide the “Bruen Basis” for their support or opposition on the legislation.
John Harris | Executive Director | Tennessee Firearms Association