Almost every candidate that has run for the office of governor or the state Legislature in the last 30 years has, particularly if they identify as a conservative or a Republican, claimed that they support your rights as protected by the Constitution and the Second Amendment. That has been true when the Democrats held state government and when the Republicans seized control around 2010 after almost 150 years of Democrat domination of state government.
The fundamental problem in Tennessee now and for many decades is that the statutes are based on the core presumption that its a crime for a citizen to carry a firearm with the intent to go armed. Some would suggest that this core “no guns” principle came into being as a “Jim Crow” law after the end of the Civil War and the passage of the 1870 state constitution. But, the fact is that such laws in Tennessee go back at least prior to the 1820s although even then the laws were likely designed to keep certain individuals or classes of individuals from being armed and leaving it to “law enforcement discretion” on who was charged with the crime.
Tennessee will NEVER be a true “constitutional carry” state until the basic infringing premise – that it is a crime for a citizen to carry a firearm with the intent to go armed – is eliminated from our laws. That is because TRUE or REAL constitutional carry requires a statutory scheme where it is simply not a crime – of any sort or degree – for someone who can legally possess a firearm to carry it with the intent to go armed. Tennessee at present has no such law.
This is an issue that TFA has advanced for many years but yet both Democrat and Republican governors have failed to address the issue constitutionally. Legislators, particularly when they are candidates, often speak of supporting the 2nd Amendment but after the last 28 years they have failed to do so. The question is “Why?”
Well, honestly, there are many answers to the question. But rather than get into those details which are likely not to be well received by some, let’s address the typical response of the governor and some legislators. The response of “incrementalism”.
In 2021 as the permitless carry legislation was moving through the legislature, amendments were offered and even other bills were filed that would have been more truly called “constitutional carry”. These existed because despite what was said about the bill, the legislation was merely yet another statutory defense to the criminal charge of carrying a firearm with the intent to go armed. It did not and in the format it was enacted never would be true constitutional carry. So as the 2021 permitless carry legislation was advancing some legislators openly said that it was not real constitutional carry. They said things like (paraphrasing) “it moves the ball down the field”, “its the biggest chunk of freedom we can get right now”, “its a step in the right direction”, and “its the most the public will accept at one time”.
Incrementalism – the act of knowing what is required to achieve a goal but willfully refusing to take that step although professing at the same time to desire the actual goal.
The truth is that the fight to get true constitutional carry in Tennessee is a “poster child” for government’s deathly embrace of incrementalism. Consider the following timeline:
Tennessee’s modern handgun permit law was enacted in 1994 at which time the Democrats controlled the office of Governor as well as the Legislature. That law was amended in 1996 when the “current” handgun law (TCA 39-17-1351) was enacted as 1996 Tennessee Laws Pub. Ch. 905 (H.B. 2381) on May 8, 1996. It was substantially amended in 1997. Since then, Tennessee’s handgun permit law has seen regular incremental amendments to the point that it is practically impossible for most civilians – and legislators – to know the history:
2000 Pub.Acts, c. 947, § 8C, eff. June 23, 2000
2001 Pub.Acts, c. 218, § 1, eff. May 15, 2001
2002 Pub.Acts, c. 601, § 1, eff. July 1, 2002
2003 Pub.Acts, c. 300, §§ 1, 2, eff. July 1, 2003
2003 Pub.Acts, c. 349, §§ 1, 2, eff. June 13, 2003
2004 Pub.Acts, c. 483, §§ 1, 2, eff. April 8, 2004
2004 Pub.Acts, c. 776, § 1, eff. May 28, 2004
2005 Pub.Acts, c. 343, § 1, eff. July 1, 2005
2005 Pub.Acts, c. 423, § 1, eff. July 1, 2005
[Note: In 2007 Republicans gain control of the Senate and Ron Ramsey takes control as Lt. Governor with the help of a vote from Democrat Senator Rosalind Kurita who was later stripped of her party affiliation]
2008 Pub.Acts, c. 1174, § 1, eff. July 1, 2008
[Note: In 2009, Republicans gained a 50-49 majority in the House and Kent Williams, a Republican became speaker when he voted for himself along with all members of the Democrat caucus]
2009 Pub.Acts, c. 101, § 1, eff. April 27, 2009
2009 Pub.Acts, c. 433, § 1, eff. June 12, 2009
2009 Pub.Acts, c. 578, §§ 10, 11, eff. Jan. 1, 2010
2010 Pub.Acts, c. 1009, § 4, eff. June 4, 2010
[Note: Bill Haslam wins the race for governor in 2010 and in January 2011 becomes Governor to serve with Republicans controlling both houses of the Legislature]
2012 Pub.Acts, c. 848, §§ 26, 27, eff. May 15, 2012
2013 Pub.Acts, c. 236, § 35, eff. April 19, 2013
2013 Pub.Acts, c. 270, § 1, eff. July 1, 2013
2014 Pub.Acts, c. 866, § 1
2014 Pub.Acts, c. 866, § 2, eff. Jan. 1, 2016
2015 Pub.Acts, c. 281, §§ 1 to 3, eff. July 1, 2015
2015 Pub.Acts, c. 459, § 5, eff. July 1, 2015
2016 Pub.Acts, c. 736, §§ 1 to 8
2016 Pub.Acts, c. 875, § 1, eff. Jan. 1, 2017
2016 Pub.Acts, c. 903, § 1; 2016 Pub.Acts, c. 925, § 1, eff. July 1, 2016
2016 Pub.Acts, c. 1037, § 1, eff. Jan. 1, 2017
2017 Pub.Acts, c. 159, § 1, eff. April 24, 2017
2017 Pub.Acts, c. 247, § 1, eff. Jan. 1, 2018
2018 Pub.Acts, c. 690, § 1, eff. April 9, 2018
[Note: Bill Lee was elected Governor in 2018 and took office beginning in 2019. The Legislature continues under control of a super majority of Republicans]
2018 Pub.Acts, c. 865, § 1, eff. Jan. 1, 2019
2018 Pub.Acts, c. 903, §§ 3, 5, eff. July 1, 2018
2019 Pub.Acts, c. 109, § 1, eff. July 1, 2019
2019 Pub.Acts, c. 345, § 54, eff. May 10, 2019
2019 Pub.Acts, c. 367, § 1
2019 Pub.Acts, c. 396, § 1, eff. July 1, 2019
2019 Pub.Acts, c. 479, §§ 3, 4, eff. Jan. 1, 2020
2020 Pub.Acts, c. 804, § 1, eff. July 15, 2020
2021 Pub.Acts, c. 64, § 46, eff. March 29, 2021
2021 Pub.Acts, c. 108, § 6, eff. July 1, 2021
2021 Pub.Acts, c. 195, § 1, eff. April 22, 2021
2021 Pub.Acts, c. 219, §§ 8, 9, eff. April 22, 2021.
Yet, with all of the incremental amendments to the handgun carry law since 1994, we still don’t have real constitutional carry in Tennessee. We are perhaps a little closer because now we have more available defenses to the criminal charge of carrying a firearm with the intent to go armed, but a spectrum of defenses is not the same as the free and full exercise of a constitutionally protected right.
In 2021 and again in 2022, there is legislation pending that would finally repeal the statutory scheme which has persistently infringed the right to keep and bear arms in Tennessee. The question is whether the Legislature will enact yet another in a long line of incremental, stonewalling laws or whether it will stand on the oath of office and remove the statutory infringements on the right to keep and bear arms in Tennessee.
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