by John Harris
As of January 3, 2023, the Republicans were supposed to control the United States House of Representatives by a slim majority. On that date, many expected that the task of electing a new Speaker and moving forward with the business of “the people” in the House would start under Republican party control. But as of January 6, 2023, those elected to serve in the House have not selected a Speaker and so the House has not been organized nor undertaken regular operations. National news reports indicate that the presumptive Republican Speaker so far has fallen short in getting the required number of votes in part because approximately 20 Republicans who were elected in November have refused to vote for McCarty and no other individual has demonstrated enough votes to get the position.
One of the issues that is being discussed is whether any of those who have refused to support McCarthy in the 11 votes taken as of January 5th have broken a promise, perhaps a campaign promise, to do so. It is an active discussion over what was promised and whether there are any valid justifications for withholding support if a promise was made. Indeed, at least in Nashville, the talk radio shows are expending a great amount of time reviewing this issue because there is a Congressman-elect from Tennessee who is part of the story.
Certainly, promises are important. Furthermore, broken promises may even be more significant, particularly if those broken promises evidence a pattern of such. But how are these circumstances surrounding Congress relevant to making policy in Tennessee such that it is something that Tennessee’s 2nd Amendment supporters and conservatives should evaluate?
Tennessee Firearms Association has been advocating for the full restoration of the prohibitions mandated by the 2nd Amendment now for almost 3 decades in Tennessee. When it started, the Legislature was controlled by Democrats. Some of the Democrats campaigned as rural conservatives and would say that they supported the Second Amendment and many would promote that they were NRA members or had good scores from the NRA. However, a good number of Democrats, particularly the progressives and many of the urban Democrats did not claim to be Second Amendment supporters. Fine, as long as they were truthful about their positions such that the voters knew where they stood it was the candidates’ choices and the voters’ options on whether to elect someone to represent them that supported the Second Amendment. In contrast to the Democrats, most Republican candidates in the state would assert that they supported the Second Amendment, that they were NRA members, and that they had favorable ratings or endorsements from the NRA. To this point, the circumstances align with the question now arising relative to the House of Representative’s “McCarthy” vote on were campaign promises or any promises of support made.
Next, consider whether promises made were promises kept, and if not why not, which seems to be what is being so intensely discussed among conservatives and the talk shows.
Plenty has been said and heard in the last week about the situation in the U.S. House of Representatives but very little has been examined about the Second Amendment promises in Tennessee.
From 1995, when TFA started its advocacy, until November 2010, the Democrats predominately controlled the Tennessee Legislature. Some Democrats campaigned that they would support the Second Amendment, some did not. So, it is not surprising that the Second Amendment’s “shall not be infringed” mandate was disregarded by some Legislators who never promised to support it. Then there are those who campaigned on the vague assurance of supporting the Second Amendment but never really articulated what they thought the Second Amendment meant or what the phrase “shall not be infringed” required.
But the uncertainty of the scope of the Second Amendment substantially eroded in 2008 when the United States Supreme Court ruled in Heller that the Second Amendment protected an individual right to keep and bear arms. From that point forward, promising to support the Second Amendment and taking an official oath of office to uphold the constitution no longer could be breached on the excuse of “I did not realize it meant you had a personal, individual right to carry a firearm for self-defense”.
The uncertainty reduced further in 2010 when the United States Supreme Court ruled in McDonald that the Second Amendment, by virtue of the “incorporation doctrine” of the 14th Amendment, mandate that the right to keep and bear arms shall not be infringed was fully applicable to the states. That meant, even if a state had a constitution that vested regulatory authority in the Legislature and even if the state had statutory or regulatory restrictions on individuals who could carry firearms or where they could carry them, that those state provisions were unconstitutional if they were a violation of the Second Amendment’s “shall not be infringed” mandate. Most of Tennessee’s gun laws fall into this category.
Any claimed continuing confusion about the scope of the Second Amendment further eroded in 2022 with the United States Supreme Court’s decision in Bruen which held that any state laws or regulations which are more restrictive than the laws and restrictions on keeping and bearing and wearing arms that existed in 1791 (when the Second Amendment was ratified) are presumptively unconstitutional and the burden is on the government to prove otherwise.
So, setting aside the era prior to 2008 to eliminate quibbling over “what does the Second Amendment mean”, let’s examine the campaign promises that have been made since 2008. That is particularly relevant since Tennessee has had 2 Republican governors and a Republican super majority in the Legislature since 2010.
Although it may not be 100%, a high percentage of Republican candidates for office in Tennessee since 2008 have campaigned that they are supporters of and will support the Second Amendment. Many expressly campaigned on enacting constitutional carry, on eliminating gun free zones, and on removing restrictions on the right of Tennesseans and those in Tennessee to carry a firearm for self defense. Bill Lee, when he ran for governor in 2018, put his promises in writing. When he ran for re-election in 2022, he claimed on his campaign website that he had “expanded” rights in Tennessee with the passage of “Constitutional Carry”.
Many of these campaign promises have been broken – in ways perhaps similar to the current uproar over what is happening concerning the promises made concerning supporting Kevin McCarthy. Yet, there is little discussion of these broken promises by voters or talk radio.
The fact is that Tennessee as of January 6, 2023, clearly does not have constitutional carry. Some Legislators know that and are working (and have been working) to change that. To that extent, they are working to keep their campaign promises and to honor their principles of constitutional stewardship, and TFA applauds that effort. But, with 13 years of Republican super majority control of the Tennessee Legislature, there simply is not a majority in the Legislature who have been willing to honor the campaign promises about supporting the Second Amendment or enacting constitutional carry.
Indeed, the Second Amendment is not limited to the issue of constitutional carry. It also covers the ability to exercise that right. So, as the United States Supreme Court examined in Bruen, state and local laws that impose restrictions on what you can carry, when you can carry and where you can carry are also subject to constitutional scrutiny as to what was the “national tradition” of regulation as of 1791. In that context, Tennessee’s “handgun only” restriction is likely unconstitutional. Tennessee’s permit laws may be unconstitutional as a requirement. Tennessee’s prohibition on those who are 18-20 years old from carrying a firearm is likely unconstitutional. Tennessee’s prohibition on those with prior convictions (especially nonviolent felony and any misdemeanor convictions) is likely unconstitutional. Tennessee’s regulatory prohibition of having a gun anywhere near a school or a child care facility (a state regulation by an agency) is likely unconstitutional. Tennessee’s prohibition on firearms in parks, greenways, campgrounds, civic centers and recreational areas is likely unconstitutional. Tennessee’s prohibition on consuming alcohol while possessing a firearm is likely unconstitutional. Tennessee’s criminal prosecution for those who carry of “posted property” is likely unconstitutional. Indeed, it could be concluded that many of Tennessee’s existing “gun laws” laws are unconstitutional at least to the extent that similar laws did not exist at the time that the Second Amendment was adopted in 1791.
The Second Amendment says “shall not be infringed”. In contrast, it is important to understand that under Tennessee law – the entire state is defined as a gun free zone, including all personal real property, by Tennessee Code Annotated § 39-17-1307(a)(1). The fact that your home, your farm, your place of business are defined as “gun free zones” – FOR YOU – by the state is proven by the fact that state law makes it an affirmative defense, and puts the burden on you, to prove that you on your own property or in your own home at the time that you were carrying a firearm “with the intent to go armed.” See, Tennessee Code Annotated § 39-17-1308.
As we look forward to the 2023 Legislative session under Republican super majorities in both the House and the Senate, we need to carefully monitor actions and compare them to prior promises. It is time to remind those elected stewards of their promises, their oaths of office and the Second Amendment’s mandate so that at the end of the 2023 Legislative session any unconstitutional state or local laws and regulations are not longer operating as an infringement on your civil rights. It is also time to take inventory of who has made promises in the past, and whether they have been kept.
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John Harris is the Executive Director of the Tennessee Firearms Association.
Photo “Man Aiming Gun” by Joel Muniz.