The Tennessee Legislature had over 200 bills in the 2023-2024 session that Tennessee Firearms Tracked. Recently, TFA reported on the bills that were enacted in 2024. This report is to examine some of the bills that were filed in 2024 that were strong Second Amendment bills but which the Tennessee Legislature completely failed to pass.
First, let’s start this review once again with the relevance of the United States’ Supreme Court’sdecision in New York State Rifle and Pistol Association v. Bruen, No. 20-843 (as addressed more fully in the 2024 enacted legislation report). For purposes of this report, Bruen teaches us that any government infringement of the rights protected by the Second Amendment is unconstitutional as a matter of law. That applies equally to the infringements that exist as statutes, ordinances, regulations and executive orders at the state and local level based on the Supreme Court’s 2010 decision in McDonald v. City of Chicago. Bruen further teaches that if an infringement violates the Second Amendment that the burden is on the state (or applicable government entity) to demonstrate that the infringement existed as part of the “nation’s historical tradition” as of 1791.
Bruen also prohibits the government entity from relying on a two-part test that various Court of Appeals adopted after Heller that allowed many infringements to continue to exist under an “interesting balancing” test. That test, which often looked at whether the state had a “public safety” justification for the infringement, was entirely rejected by the Bruen court.
Thus, the burden on the state, the burden to justify an infringement, carries forward and pursuant to the oaths of office of elected and appointed officials, including those in Tennessee, further imposes a duty on those government officials to repeal infringements that are unconstitutional under Bruen. It is this duty, the duty to remove, eliminate and repeal existing infringements where the Tennessee Legislature has repeatedly and persistently failed Tennesseans and in so doing breached their sworn oaths of office.
Finally, those in the Tennessee Legislature who have violated these oaths cannot rely on a claim of “we did not have the votes” because the Tennessee Legislature has been under the complete and overwhelming control of Republicans since 2010. It has a Republican Lt. Governor – Randy McNally. It has a Republican Speaker – Cameron Sexton. Every relevant committee and subcommittee chair in the Legislature are Republicans. Every member of the “majority” party’s leadership team identify as Republicans. So the Tennessee Legislature’s Republicans, as a party, have no excuse for failed to fulfill their oaths and no justification for violating their constitutional duties.
That is not to say all individual members of the Legislature who are Republicans have violated their oaths and taken actions (or failed to take actions) that violated our constitutionally protected civil rights. To the contrary, there are several Legislators who carried legislation and tried to pass that legislation that would have moved Tennessee at least closer to constitutional compliance. However, even with Republican super majorities in control of both houses, there were not enough oath-honoring Republican legislators to achieve those objectives.
Here are some of the opportunities that existed but failed at the feet of the Tennessee Legislature but, more specifically, the Republican super majority of the Tennessee Legislature. Note, however, that this is not a list of all the bills that TFA tracked that failed, it is a list of only a sufficient number of specific examples to demonstrate clearly the Legislature’s failures.
SB2180/HB1904 by Sen. Joey Hensley and Rep. Monty Fritts. This bill would have created an exception under Tennessee’s “posting” statute for those individuals who have either the enhanced or concealed only permits and who carrying concealed. If so, the individual would be exempt from Tennessee’s “strict liability” posting statute under Tenn. Code Ann. § 39-17-1359. However, the property owner / manager would still have the option to instruct the individual to remove the firearm from the property and, upon a refusal by the individual to so so, the individual could be charged with criminal trespass. This bill failed in the Senate Judiciary on a vote of 4 Ayes (Roberts, Stevens, Taylor and White), 3 Noes (Kyle, Lamar and Rose) and two Senators who were present but failed to vote – Todd Gardenhire and Jon Lundberg. Thus, had any of the three Republicans (Rose, Gardenhire or Lundberg) voted “yes”, the bill would have at least moved forward. All three of these Republicans who are responsible for killing this bill in the Senate are up for re-election in 2024.
SB2502/HB2082 by Sen. Joey Hensley and Rep. Month Fritts. This bill as amended would have removed Tennessee’s blatantly unconstitutional statutory presumption that anyone carrying a “firearm or a club” with the intent to go armed is committing a crime. Tenn. Code Ann. § 39-17-1307(a). This criminal offense has only 2 elements, carrying of such a weapon with the “intent to go armed” (which is undefined in the current law). Anyone carrying any firearm with the “intent to go armed” – even in their own home, on their own property, at their place of business, with a handgun permit, while hunting, etc., is chargeable with a crime. Tennessee law presently makes things like having a handgun permit or being on your own property an affirmative defense to the crime. Tenn. Code Ann. § 39-17-1308. Some of the problems with this structure is that neither an officer nor a district attorney is required to consider someone’s defenses to a criminal charge in deciding whether to stop, detain, question, charge, arrest or criminally prosecute the individual. The government officials “can” consider those issues in their discretion but they are not required to do so. Thus, some in law enforcement may want to keep this criminal presumption since it gives them “probable cause” upon seeing an armed individual to believe a crime is being committed and to stop, detain and question the individual.
The bill, as amended, would have deleted the statutory presumption of criminal activity. It would have allowed citizens to carry both handguns and longarms. It would have changed, by statute, the threshold age for carrying a firearm to 18 rather than 21 (which is already the law in Tennessee because of a Federal Court civil rights act settlement in 2023). In sum, this bill would have removed several different infringements on the rights that are protected by the Second Amendment.
The bill, however, failed. It actually passed initially in the Senate Judiciary on 6 yes votes of Senators Gardenhire, Lundberg, Roberts, Stevens, Taylor, and White against 2 no votes of Senators Kyle and Rose. However it then was approved again in the Senate Calendar committee but because of an amendment in that committee it was referred back to Senate Judiciary which had already closed for the year. Interestingly, Senator John Stevens who had voted “yes” on the bill in Senate Judiciary voted “no” on the bill when it came before him in Senate Finance. The House version of the bill passed on a voice vote in the House Civil Justice Subcommittee and also in the House Civil Justice Committee. However, it was referred to the House Criminal Justice Committee but the Legislative session ended before it was heard again in either the House or Senate committees – almost as if it was planned that way by Legislative leaders. Also, an examination of the House co-sponsors (on the bill’s legislative page) shows that most House Republican leadership failed to co-sponsor this bill with the only exceptions being Reps. Capley, Garrett and Sherrell.
SB2516/HB2689 by Sen. Kerry Roberts and Rep. Clay Doggett. This bill would have supplemented claims under the federal Civil Rights Act by authorizing similar civil rights claims to be brought in state court against state and local government officials who violate those civil rights within the scope of the Second Amendment or the state constitutional provision. The Senate bill was initially carried by Sen. Frank Niceley but the bill failed in Senate Judiciary on March 20, 2024, because no senator made a “second” to have a vote on the bill itself. When that occurred, Senator Roberts made arrangements to have the bill assigned to him and it was reset for a hearing on Senate Judiciary on April 2 (TFA’s lobby day). When it was called on April 2, Senator Roberts made statements in support of the bill but did not move forward with it. As a result, although the bill had passed in the House Civil Justice Subcommittee Committee on April 2 with only a voice vote, the failure to move it forward in the Senate Judiciary committee effectively killed the bill.
SB2912/HB2032 by Sen. Paul Bailey and Rep. Jody Barrett. This bill, as amended, was similar to SB2180/HB190 would have created an exception to Tennessee’s “posting statute” for enhanced handgun permit holders. It was to be heard on April 2 in Senate Judiciary but it was instead assigned to “General Sub” which killed the bill. At that time, however, it had passed in the House Civil Justice Subcommittee and the House sponsor was still moving the bill forward. The bill had a 21 House members as co-sponsors but once again almost none of the House Republican leadership co-sponsored the bill.
Finally, perhaps the most significant legislation that demonstrates the lack of true Second Amendment support from House leadership is House Joint Resolution 38 (“HJR 38”) by Rep. Jay Reedy. HJR 38 was an attempt by some Legislators in the House to remove a Jim Crow 1870 infringement on the right to keep and bear arms. That effort was to amend the current Tennessee Constitution by amending the existing provision in Article 1 Section 26 of our Declaration of Rights. The process to amend the state’s Constitution (without a convention) is at least a two year process that requires the passage of matching resolutions by both chambers in the first year via a simple majority then a second time in a subsequent session by a two-third’s majority vote. The passage of those resolutions then merely places the proposed amendment before the citizens on the ballot but only in those years that coincide with a election for governor. Thus, constitutional amendments by ballot can only occur every four years. The failure to pass HJR38 in 2024 in the House now mandates that it cannot be offered to citizens in 2026 and now cannot come to a vote by the people until at least 2030.
The historical significance from a Second Amendment perspective of the failure of the House Republicans to pass HJR 38 in 2024 must be considered. History teaches that the Democrat party that controlled the state in 1870 (including the citizens who voted then for the amendment) wanted to be sure that the freed slaves would be defenseless in the face of attempts to disarm them. So, in 1870 they voted to amend the state’s Constitution to state “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 provision of Tennessee’s 1870 constitution that violated the Second Amendment in 1870 and that violates it today (as discussed below) is the phrase “the Legislature shall have the power, by law, to regulate the wearing of arms with a view to prevent crime.”
House Joint Resolution 38 would have fixed the State’s constitution by amended the language of Article I, Section 26 to read: “That the citizens of this State have a right to keep, bear, and wear arms.”
HRJ 38 began its passage through the sausage mill that is the Tennessee Legislature when it was filed for introduction on January 11, 2023. The House Civil Justice Subcommittee approved the proposal on February 21, 2023. The House Civil Justice Committee also approved the Resolution and it was then scheduled to be heard in the House Calendar and Rules Committee which should have been the last step before a full floor vote. However, before it came before the Calendar and Rules Committee, the House re-referred it to the Finance Ways and Means Subcommittee since the Resolution, even though it had no fiscal note (which is an estimate by the Legislature on the projected cost of implementation) . Despite having no fiscal impact, there is a minimal projected cost of adding the question to the ballot, so it necessitated the approval by the House Finance Committee as it is mandated that cost be borne by the state for these amendments. Thus, on April 5, 2023, HJR 38 was scheduled to be heard Finance Ways and Means Subcommittee on April 12, 2023. However, the House Finance Ways and Means Subcommittee chairman, Gary Hicks, apparently felt that the proximity of the vote to the Covenant School shooting in March 2023, might make the Republican supermajority look bad, so he requested that the sponsor, Rep. Reedy, take the Resolution off notice for April 12, 2023, with the promise from Chairman Hicks to Rep. Reedy that the Finance Ways and Means subcommittee would pass the Resolution in 2024.
As 2023 was the first year in the 113th General Assembly (all Sessions of the General Assembly are biennial, comporting with the 2 year terms of the members of the House) the stagnant resolution was thus required to sit idle in the House until 2024.
Once 2024 arrived Rep. Reedy placed HJR 38 was placed on notice to be heard in the Finance Ways and Means Subcommittee on January 17, 2024. However, it was soon suggested that the Resolution might now be considered because if it was approved in the House that it might place too many constitutional amendments on the ballot in 2026 since there were already three other proposed constitutional amendments that also were being proposed.
As a result, Richard Archie, a TFA Board member, contacted the Secretary of State, Tre Hargett, on February 11, 2024, to ask the Secretary of State how many approved proposed constitutional amendments were scheduled at that time. It was also determined that there is NO constitutional nor statutory limit on the number of proposed constitutional amendments that can be placed on the ballot. Indeed, it was also determined that in 2014, 2018 and 2022 there were four (4) constitutional amendments on the ballot before the voters in each election.
While the House was in the process of considering HRJ 38, it was necessary to introduce and to move it in the Senate as well. Sen. John Stevens introduced SJR 904 on January 30, 2024. Sen. Stevens placed it on notice for Senate Judiciary Committee February 28, 2024. SJR 904 was finally heard in Senate Judiciary on March 20, 2024 where it received “Aye” votes from every Republican member of the committee and passed through the Senate Calendar Committee soon thereafter. The full Senate heard SJR 904 on April 9, 2024, where it received the vote of every Republican Senator. It was thereupon “engrossed” and sent to the House for its concurrence.
However, the House Finance Ways and Means Subcommittee took HRJ 38 “off notice” on April 10, 2024. At the time, it had 58 sponsors, including at least one Democrat, which was at least 8 more sponsors that would have been required to pass the Resolution on the House Floor and send it to the next year for final consideration in both Chambers. There was no vote by the committee as to which of the proffered amendments were of higher priority or more desired by the citizens of Tennessee. Only 1 proposed amendment was considered, HJR 859 by Speaker Sexton, and that amendment dealt with bond for alleged criminals and that was an issue that should and could have been dealt with entirely by statutory amendment as opposed to a constitutional amendment to repeal a clearly unconstitutional provision of the existing state constitution (which is what HJR 38 would so).
Indeed, HJR 38 was the ONLY resolution that dealt with a true constitutional issue because it sought to correct an existing unconstitutional defect in the State’s constitution. HJR 38 would have repealed and revised Article 1, Section 26 which contains a clause that that purports to allow to the Legislature a regulatory power that violates the Second Amendment’s “shall not be infringed” mandate. However, since the United States Supreme Court “incorporated” the Second Amendment against the states pursuant to the Fourteenth Amendment in its 2010 McDonald decision, that provision of the State’s constitution is now unconstitutional since it purports to grant regulatory authority that the “shall not be infringed” clause of the Second Amendment expressly prohibits.In response to the inquiry by Richard Archie as to the number of allowable constitutional amendment, the Secretary of State admitted that there was no limited on the number of amendments that could be on the ballot but the Secretary of State then offered the excuse that there was a desire of some of those in Tennessee’s government to eliminate “voter confusion and fatigue” and that there have been complaints “since 2014 about the length of the ballot and the length of the constitutional amendments.” There is, however, no risk that the operative portion of HJR 38 – which is only once sentence containing 15 words – would have led to any voter confusion or fatigue particularly since the proposed amendment mirrors entirely the existing language of the Second Amendment. One must question whether the excuse about “confusion and fatigue” was the true justification by the Secretary of State (or the Legislators) for blocking HJR 38 and our rights to amended our constitution. Indeed, this excuse – if that is what it was – demonstrates nothing but that the Secretary of State’s office has so little faith in the cognitive ability of Tennessee’s citizens.
The Supreme Court of the United States ruled in McDonald v. City of Chicago in 2010 that the Second Amendment was incorporated against the states through the due process clause of the Fourteenth Amendment. That ruling, although not directly specifically at Tennessee’s constitution, rendered the 1870 bastardized Tennessee Article 1 Section 26 moot and unenforceable. Yet, in the 14 years since the McDonald decision, Tennesseans have not seen any movement by the Tennessee Legislature to remove that unconstitutional infringement from the state’s constitution.
Indeed, in the Supreme Court said in 2022 in its Bruen decision that, when conduct implicates the rights protected by Second Amendment, the burden shifts instantly to government to prove that the infringements are aligned with historical tradition of firearms regulations. Yet, in the two years following that Supreme Court mandate the Tennessee Legislature has not only failed to repeal existing infringements in Tennessee but it has, as noted in the 2024 Legislature review, passed more!
While it might seem that certain segments of the government of Tennessee are blind to the rulings of the United States Supreme Court, that is not an illusion, it is now a proven fact. Tennessee’s Court of Appeals seems to have gotten the message though, as is evidenced by their analysis in a recent case in which the Court said:
“Most recently, in Bruen, the United States Supreme Court noted that the Second Amendment protects the right of lawabiding citizens to carry and possess handguns both inside and outside the home for the purpose of self-defense. 142 S. Ct. at 2156.”…“The unconstitutional conditions doctrine provides that a governmental entity “may not deny a benefit to a person on a basis that infringes his constitutionally protected interests.”…“The constitutionally protected interest or right at issue here arises under the Second Amendment to the United States Constitution, which protects “the right of the people to keep and bear Arms.” U.S. CONST. amend. II.5 Self-defense is the “central component of th[at] right.” Heller, 554 U.S. at 599 (emphasis omitted). Thus, “law-abiding, responsible citizens” have the right “to use arms in defense of hearth and home.” Id. at 635.
Columbia Housing & Redevelopment Corp. v. Kinsley Braden, Court of Appeals of Tennessee, No. M2021-00329-COA-R3-CV (2022).
If our Court of Appeals recognizes the Heller and Bruen rulings as limitations on what state government can do, why is it that the Republican leadership and super majority in the Tennessee Legislature refused to do so?
The United States Supreme Court has already – 14 years ago – taken steps that yield the conclusion that the “power to regulate the wearing of arms” that the Legislature believes it has is in fact unconstitutional and in violation of the Second and Fourteenth Amendments. There is no excuse, none, for the Legislature’s rejection of HJR 38 particularly when that resolution had 58 sponsors but only needed 50 votes (at most) to pass.
The conduct of the Legislative Republicans, primarily the leadership, on all these examples demonstrates the need to change the composition of the Legislative Republican caucuses. It also demonstrates the lack of support that Second Amendment issues truly have in the ranks of the House and Senate Republican leadership – at least when they are not out asking for our votes to be re-elected. That needs to and can change through political pressure on these legislators and by replacing some, if not many of them, in the 2024 election cycle.
John Harris | Executive Director Tennessee Firearms Association
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