Constitutional Carry, but…
More than half of the states in the union allow constitutional carry, which is the right to carry a firearm without a permit or license. While Tennessee claims to have constitutional carry, their constitution places a “but” in that claim. A recent case in Tennessee Chancery Court asks whether two laws restricting someone’s ability to bear arms is constitutional or not.
Dueling Calls for Judgment
Several plaintiffs, all citizens of the State of Tennessee, filed suit against the Governor, Attorney General, and other state officials claiming that two state laws are violations of the Constitution of the State of Tennessee.
Plaintiffs seek declaratory relief from Tenn. Code Ann. § 39-17-1307(a) (the “Going Armed Statute”) and Tenn. Code Ann. § 39-17-1311(a) (the “Parks Statute”); these are both statutes that Plaintiffs argue make it a crime to carry a firearm in a public place in violation of Article I, Section 26 of the Tennessee Constitution.
The defendants, however, argue that the suit shouldn’t even be heard.
Defendants, however, challenge: whether this Court has the authority to grant such relief; whether Plaintiffs have standing to pursue their claims against Governor Lee and Attorney violations in light of the existence of at least one constitutional application of those statutes.
Both sides filed motions for summary judgment in their favor. A hearing was held by a three judge panel of The Chancery Court For The State Of Tennessee Twenty-Eighth Judicial District, Gibson County.
Facts of the Case
Let’s start with the facts of the case.
At least one of the individual Plaintiffs desires to carry a firearm in Tennessee’s public parks, greenways, public recreational areas, and other locations enumerated in Tenn. Code Ann. § 39-17-1311(a). At least one of the individual Plaintiffs in the past has carried a handgun in places covered by Tenn. Code Ann. § 39-17-1311(a). At least one of the individual Plaintiffs in the past has carried a handgun in places covered by Tenn. Code Ann. § 39-17-1307(a).
There are two statues in the Tennessee Code Annotated that are at question in this case. The first, §39-17-1311 is entitled Carrying weapons on public parks, playgrounds, civic centers and other public recreational buildings and grounds or “Parks” for short.
(a) It is an offense for any person to possess or carry, whether openly or concealed, with the intent to go armed, any weapon prohibited by § 39-17-1302(a), not used solely for instructional, display or sanctioned ceremonial purposes, in or on the grounds of any public park, playground, civic center or other building facility, area or property owned, used or operated by any municipal, county or state government, or instrumentality thereof, for recreational purposes.
There are many problems with these statues. First, the “intent to go armed.” Why would someone be carrying an arm if they didn’t intend to go armed? Could someone simply say “Ooops, I didn’t mean to carry a firearm?”
The second is why a statue to prohibit the carrying of prohibited weapons only in certain locations?
(a)A person commits an offense who intentionally or knowingly possesses, manufactures, transports, repairs or sells:
(1) An explosive or an explosive weapon;
(2) A device principally designed, made or adapted for delivering or shooting an explosive weapon;
(3) A machine gun;
(4) Hoax device;
(5) Knuckles; or
(6) Any other implement for infliction of serious bodily injury or death that has no common lawful purpose.
At first glance, it appears that the prohibited weapons do not include firearms that have a common lawful purpose. However, as I understand it, the parks statue has been used to charge people for carrying otherwise lawful weapons in parks and public buildings.
The third problem, and the one the court focused on, is the fact that this law effectively claims that public areas are not subject to the Constitutions of either the United States or Tennessee. TCA 39-17-1307 is an even worse violation.
(a)(1) A person commits an offense who carries, with the intent to go armed, a firearm or a club.
Known as the “Going Armed” statue makes it a crime to go armed, even though the Tennessee Constitution says it’s a right.
Section 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.
Constitution of the State of Tennessee, Article I, Section 26
How did the legislature square this circle? The Constitution of Tennessee says you have a right to keep and bear arms, but the legislature can regulate the wearing of arms to prevent crime. The legislature decided to regulate the wearing of firearms to prevent crime by making it a crime to carry a firearm or club? This is one of the reasons why I say Tennessee does not have Constitutional carry, because carrying a firearm is a crime, to which the Tennessee legislature has provided certain exceptions.
(g)It is an exception to the application of subsection (a) that a person is carrying, whether openly or concealed, a handgun and:
(1)(A) The person is at least twenty-one (21) years of age; or
(B) The person is at least eighteen (18) years of age and:
(i) Is an honorably discharged or retired veteran of the United States armed forces;
(ii) Is an honorably discharged member of the army national guard, the army reserve, the navy reserve, the marine corps reserve, the air national guard, the air force reserve, or the coast guard reserve, who has successfully completed a basic training program; or
(iii) Is a member of the United States armed forces on active duty status or is a current member of the army national guard, the army reserve, the navy reserve, the marine corps reserve, the air national guard, the air force reserve, or the coast guard reserve, who has successfully completed a basic training program;
(2) The person lawfully possesses the handgun; and
(3) The person is in a place where the person is lawfully present.
Based on these facts, plaintiffs have avoided exercising their rights in the areas the TCA claims to prohibit. Not because they believe these statues are valid, but to avoid being detained, issued a citation, or potentially arrested. They filed this suit to be relieved of these restrictions on their rights.
Constitutionality of Going Armed and Park Statues
The court pointed out that the Constitution of Tennessee has protected a person’s right to keep and bear arms since the first version was created in 1796, and that Tennesseans insisted on that right to prevent the abuses that occurred in England.
The evil that was produced by disarming the people in the time of James II. was that the king, by means of a standing army quartered among the people, was able to overawe them, and compel them to submit to the most arbitrary, cruel, and illegal measures. Whereas, if the people had retained their arms, they would have been able, by a just and proper resistance to those oppressive measures, either to have caused the king to respect their rights, or surrender (as he was eventually compelled to do) the government into other hands.
The court looked at much of the legal tradition around Article I, Section 26 of the Tennessee Constitution, including the power of the General Assembly under it.
The Court next examined what limitations the General Assembly could impose upon the use of such arms. It flatly rejected the then-Attorney General’s view that the Legislature was empowered by the second clause of Article I, Section 26 “to prohibit absolutely the wearing of all and every kind of arms, under all circumstances.” … “To this we can not give our assent. The power to regulate, does not fairly mean the power to prohibit; on the contrary, to regulate, necessarily involves the existence of the thing or act to be regulated.” … “But the power is given to regulate, with a view to prevent crime. The enactment of the Legislature on this subject, 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.”
The court also looked at previous decisions involving the Second Amendment to the Constitution of the United States, including several opinions of the Supreme Court of the United States. The court agreed that the power to regulate did not include the power to prohibit.
Court’s Decisions
Which leads us to the court’s decisions about these motions for summary judgment.
Accordingly, this Court holds that the Going Armed Statute violates the Second Amendment to the United States Constitution and therefore also violates Article I, Section 26 of the Tennessee Constitution. With respect to the Going Armed Statute, Plaintiffs’ Motion for Summary Judgment is hereby GRANTED, and Defendants’ Motion for Summary Judgment is hereby DENIED.
Hughes, et al. v. Bill Lee, et al.
Accordingly, we conclude the Parks Statute violates the Second Amendment to the United States Constitution and therefore also violates Article I, Section 26 of the Tennessee Constitution. Plaintiffs’ Motion for Summary Judgment is hereby GRANTED with respect to the Parks Statute, and Defendants’ Motion for Summary Judgment is consequently DENIED.
I find these decisions interesting. Yes, they are correct that these statues violate the Second Amendment and are therefore unconstitutional and void.
CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion for Summary Judgment is GRANTED, and Defendants’ Motion for Summary Judgment is DENIED. As a result, the Going Anned Statute, Tenn. Code Ann. §39-17-l307(a), and the Parks Statute, Tenn. Code Ann.§ 39-17-1311(a), are hereby DECLAREDunconstitutional, void, and of no effect.
It is so ORDERED.
What I find interesting is not that these statues were found unconstitutional, but the logic regarding the Tennessee Constitution. This court claimed that the statues violate the Tennessee Constitution not because of the language of that Constitution, but because it violated the Constitution of the United States. This brings up a conflict between these two documents that I have been talking about for years here in Tennessee.
By claiming to place additional restrictions on a right protected by the Constitution of the United States, the State of Tennessee is violating the Supremacy Clause.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
U.S. Constitution, Article VI, Clause 2
As these statues were created by the legislature “to regulate the wearing of arms with a view to prevent crime,” they do not violate the Constitution of Tennessee. Since these judges, like all other judges, are required by the Supremacy Clause to follow the Constitution of the United States above even their state constitutions, the ultimate decision to grant summary judgment for the plaintiffs is both legal and correct. I only wish that the conflict between the two constitutions was part of the decision.