For over a year now, Governor Bill Lee, several in state Legislative leadership, several state legislators, reporters and others have made the claim that Tennessee is one of the states that is now classified as a “constitutional carry” state. It is not. The assertions that it is, particularly after this period of time, are perhaps ignorantly, knowingly and/or intentionally false.
The term “constitutional carry” means an environment within a state or jurisdiction where it is not a crime for an individual who can otherwise lawfully possess a firearm to carry that firearm in public.
Back in the mid-1990s and before, the term that was used prior to “constitutional carry” was “Vermont carry”. That was the term because at that time Vermont was the only state in the nation whose courts had construed its constitution – since the late 1700s – to protect the right of people in that state to carry a firearm in public without being charged with a crime and without the requirement that they have a “permit”.
There was in some states, such as North Carolina, Kentucky and frankly almost every state that touched Tennessee (Georgia was the exception), a situation where it was not a crime if someone openly carried a firearm, usually just a handgun. When a state’s laws did not make it a crime to open carry a firearm, the states frequently did pass laws in order to issue permits to allow “concealment” of the firearm. Those laws gave rise to the phrase “concealed weapons permit” and its derivatives like “CCW” or “concealed handgun permit”.
Tennessee’s constitution has never had a provision that made clear that all citizens who could lawfully possess a firearm could carry it in public and that doing so would not be a crime. Indeed, laws in Tennessee have for more than 2 centuries made it a crime for citizens to carry firearms for personal protection or self-defense.
Tennessee has not had a constitutional provision nor a statutory structure where it simply was not a crime for an individual who was lawfully in possession of a firearm to carry it for self defense or for the purpose of being “armed”.
Tennessee’s statutory structure, its premise, is that it is a crime for anyone to carry any firearm with the intent to go armed. See, Tennessee Code Annotated § 39-17-1307(a)(1) (“A person commits an offense who carries, with the intent to go armed, a firearm or a club.”) That single sentence is what precludes Tennessee from being properly categorized as a “constitutional carry” state. Yet, many elected officials, many in law enforcement, many in the news and many 2nd Amendment supporters believe otherwise because they have been told otherwise.
Tennessee’s statutory structure only creates a collection of circumstances which would allow someone to assert to a jury that they are not guilty of the crime of carrying with intent to go armed because their actions fit one or more statutory “defenses” or “exceptions”.
What Tennessee has done is to create a patchwork of statutes that state that it is a “defense” or an “exception” to the charge of carrying a firearm with intent to go armed. Many of these are found in Tennessee Code Annotated § 39-17-1308, cited below. The “facts” that include such a defense are things like “you are on your own property” or “you have a permit”
(a) It is a defense to the application of § 39-17-1307 if the possession or carrying was:
(1) Of an unloaded rifle, shotgun or handgun not concealed on or about the person and the ammunition for the weapon was not in the immediate vicinity of the person or weapon;
(2) By a person authorized to possess or carry a firearm pursuant to § 39-17-1315, § 39-17-1351, or § 39-17-1366;
(3) At the person’s:
(A) Place of residence;
(B) Place of business; or
(C) Premises;
(4) Incident to lawful hunting, trapping, fishing, camping, sport shooting or other lawful activity;
(5) By a person possessing a rifle or shotgun while engaged in the lawful protection of livestock from predatory animals;
(6) By a Tennessee valley authority officer who holds a valid commission from the commissioner of safety pursuant to this part while the officer is in the performance of the officer’s official duties;
(7) By a state, county or municipal judge or any federal judge or any federal or county magistrate;
(8) By a person possessing a club or baton who holds a valid state security guard/officer registration card as a private security guard/officer, issued by the commissioner, and who also has certification that the officer has had training in the use of club or baton that is valid and issued by a person certified to give training in the use of clubs or batons;
(9) By any person possessing a club or baton who holds a certificate that the person has had training in the use of a club or baton for self-defense that is valid and issued by a certified person authorized to give training in the use of clubs or batons, and is not prohibited from purchasing a firearm under any local, state or federal laws;
(10) By any out-of-state, full-time, commissioned law enforcement officer who holds a valid commission card from the appropriate out-of-state law enforcement agency and a photo identification; provided, that if no valid commission card and photo identification are retained, then it shall be unlawful for that officer to carry firearms in this state and this section shall not apply. The defense provided by this subdivision (a)(10) shall only be applicable if the state where the out-of-state officer is employed has entered into a reciprocity agreement with this state that allows a full-time, commissioned law enforcement officer in Tennessee to lawfully carry or possess a weapon in the other state; or
(11) By a person authorized to carry a handgun pursuant to § 36-3-626 or § 39-17-1365.
In addition to the fact that having one of Tennessee two (2) state issued handgun permits is a “defense” there are other “defenses” or “exceptions” as well such as Tennessee’s permitless vehicle transport provision in Tennessee Code Annotated § 39-17-1307(e). Another “defense” or “exception is contained in the Governor’s 2021 permitless carry law, as discussed next.
Several Legislators stated that the Governor’s law is not real constitutional carry.
Several legislators who voted for the Governor’s law made statements supporting the conclusion that it is not real constitutional carry. On March 2, 2021 in the Senate Judiciary hearings, Senate Judiciary Chairman Senator Mike Bell made comments which noted that the bill was a “permitless carry” bill, that it was not everything that he may have wanted in such a law but that in his opinion it did move the “ball further down the field”. He observed that and that the Legislature “… may come back to see how this works in a couple of years and come back and make some changes.”
Senator Kerry Roberts also made comments during the same Senate Judiciary hearing which indicated that he did not believe the Governor’s bill was real constitutional carry. Instead, he described it as an incremental step in the direction of real constitutional carry.
On March 10, Rep. William Lamberth presented the bill to the House Criminal Justice Committee. In response to questions from Rep. Hardaway regarding whether the bill covered all firearms or only some firearms, Rep. Lamberth responded that the bill only covered handguns. He continued on regarding the bill’s limited scope by explaining to Rep. Hardaway that “there is not a distinction [between handguns and longarms] in the Second Amendment, there is a distinction in this particular bill, and this is the biggest bite of freedom we can get in one chunk”.
On March 15, Speaker Cameron Sexton was interviewed by Brian Wilson, a host on 99.7 FM in Nashville. Although Speaker Sexton stated that the Governor’s bill only applied to handguns. He stated it was “one good step in getting us towards true constitutional carry”. He also said that “this is the first step to get permitless carry in the state of Tennessee.” After the bill’s passage in the House, Speaker Cameron Sexton stated in a radio interview with Brian Wilson (99.7 FM – Nashville) on Tuesday, March 30, 2021, that the Governor’s bill was not true constitutional carry but that “we will continue pushing and fighting until we can get to true constitutional carry.…”
If Bill Lee’s hallmark law is not real constitutional carry, what is it?
As noted above, the reason that Tennessee is not a true constitutional carry state is that we have a law in Tennessee that makes it a crime for any citizen to carry any firearm with the intent to go armed. See, Tennessee Code Annotated § 39-17-1307(a)(1).
Rather than delete the prohibition on carrying a firearm with the intent to go armed, the Governor’s law created a new subsection, “(g)”, which lists certain conditions that give rise to an “exception” to the criminal charge of carrying a firearm with intent to go armed if and only if all of those conditions are met. The choice to make this an “exception” is important because words in statutes do not always mean the same as the exact same word means in a dictionary.
The fact is that Bill Lee’s law is nothing more than a qualified exception to a criminal charge of carrying a firearm with the intent to go armed but that exception only applies to some people and then only if a list of conditions are satisfied. That exception is only required to be considered by the court system once the jury trial commences.
What are these qualified conditions that must be satisfied in order to avoid being charged with the crime of carrying a handgun with the intent to go armed?
There are at least 7 conditions contained in Bill Lee’s permitless carry law. These are found in Tennessee Code Annotated § 39-17-1307(g and h).
- The person must be at least 21 years old (or for those in the military or honorably discharged from the military, at least 18 years old) (Note that a federal lawsuit has already been filed which asserts that the differential treatment of 18-20 year olds is a federal civil rights violation, see, Bassett v. Slatery);
- The person must “lawfully” possess a “handgun” (you cannot carry a rifle, shotgun or a handgun with a barrel of 12 inches or more, see TCA § 39-11-106(a)(18), under the Governor’s law);
- The person must be “in a place where the person is lawfully present” – the Legislative record is unclear on what this element is intended to accomplish other than being a basis for some category of criminal charge;
- The person has never been convicted of the misdemeanor crime of stalking under TCA § 39-17-315 (note that this is a nonviolent misdemeanor in Tennessee and sets a precedent for restricting 2nd Amendment rights based on other nonviolent crimes);
- The person has not had one or more DUI’s in the last 5 years or the person has not had two or more DUI’s in the last 10 years;
- The person has never been “adjudicated as a mental defective, judicially committed to or hospitalized in a mental institution pursuant to title 33, or had a court appoint a conservator for the person by reason of a mental defect”; and
- The person is not otherwise prohibited from possessing a firearm by 18 U.S.C. § 922(g) as it existed on January 1, 2021.
All of these conditions must be met for the 2021 permitless carry exception to apply. It is the burden of the individual to prove that all of these qualifications are applicable in his or her circumstances.
What else does the Governor’s 2021 law do?
The Governor’s law expressly allows both open and concealed carry of a handgun if all of the other conditions are met. That is one positive feature.
But, not everything that looks and seems to be a handgun is a handgun in the “Alice in Wonderland” environment of Tennessee law. Tennessee law a handgun as having a barrel length of less than 12 inches in T.C.A. § 39-11-106(a)(18) so not all handguns, as defined by most people and federal law, are covered by the Governor’s law or even our handgun permit laws.
But Bill Lee (or his drafting helpers) failed in writing the 2021 law to address prohibited locations, such as public parks, greenways and other situations under Tennessee law where a handgun permit is required to establish a defense or an exception to a criminal charge. So, those who are relying on the 2021 permitless carry law can still be prosecuted for carrying a handgun in public parks, on greenways, in public campgrounds, and in other places or circumstances.
But doesn’t the statute say that its an “exception” to the criminal charge of carrying with intent to go armed if an individual can satisfy all the conditions of the 2021 permitless carry law?
The statute does use the term”exception” in Tennessee Code Annotated § 39-17-1307(g) but keep in mind Tennessee’s statutes must be read as if they were written in “Alice in Wonderland”. The words in statutes do not always mean what the average person thinks they mean.
We must start with the fact that unlike other states, Tennessee’s Governor and its Republican controlled super majority Legislature wrote the Tennessee law so that any individual who carries a firearm with the intent to go armed commits a crime.
Instead of defining the conduct of carrying a firearm for self-defense as “not a crime”, the Tennessee Legislature has instead chosen to create a number of “defenses”, such as in Tennessee Code Annotated § 39-17-1308, or “exceptions”, such as in Tennessee Code Annotated §§ 39-17-1307(e) or -1307(g), to a crime. Tennessee simply does not have an environment where carry a firearm in public with intent to go armed – independent of any other facts, conditions or qualifications – is simply not a crime.
But “defenses” or “exceptions” are special code words when used in Tennessee statutes. They don’t mean what the average person thinks they should mean. When used in a Tennessee statute, the terms “defense” or “exception” typically refers to the fact that the “accused” (the “defendant”) has the burden to prove something at trial to the jury.
If something is written as a “defense” in Tennessee (such as being on your own property or having a permit), the individual defendant has the burden to initially raise all the elements of a defense at trial and then – only after that is done – the state has the burden to “negate” one or more elements of the defense is clearly established in Tennessee’s criminal procedure. Tennessee Code Annotated § 39-11-201(a) provides (emphasis added):
(a) No person may be convicted of an offense unless each of the following is proven beyond a reasonable doubt:
(1) The conduct, circumstances surrounding the conduct, or a result of the conduct described in the definition of the offense;
(2) The culpable mental state required;
(3) The negation of any defense to an offense defined in this title if admissible evidence is introduced supporting the defense; and
(4) The offense was committed prior to the return of the formal charge.
Tennessee defines by statute both the term “defense” and the term “exception”. Both of these definitions make clear that the state is not required to disprove or “negate” a defense or an exception unless and until the defendant has clearly raised at trial the entitlement to rely on the defense. The term “defense” is defined in Tennessee Code Annotated § 39-11-203 as follows:
(a) A defense to prosecution for an offense in this title is so labeled by the phrase: “It is a defense to prosecution under…that…”
(b) The state is not required to negate the existence of a defense in the charge alleging commission of the offense.
(c) The issue of the existence of a defense is not submitted to the jury unless it is fairly raised by the proof.
The term “exception” is defined similarly in Tennessee Code Annotated § 39-11-202:
(a) An exception to an offense in this title is so labeled by the phrase: “It is an exception to the application of…,” or words of similar import.
(b)
(1) Unless the statute defining an offense states to the contrary, the state need not negate the existence of an exception in the charge alleging commission of the offense.
(2) An exception to be relied upon by a person must be proven by a preponderance of the evidence.
There is significance in whether something is classified as a “defense” or an “exception” under the Tennessee statutes. As noted above, https://www.careddi.com/ a “defense”, such as having a handgun permit, can be raised by the defendant and once it is fairly raised the burden shifts to the State under Tennessee Code Annotated § 39-11-201(a)(3) to “negate” the defense. However, in instances where the avoidance option is classified as an “exception” in the statute it appears that the burden to prove the facts and availability of the exception, such as permitless carry, stays on the accused since there is no burden-shifting language for exceptions as there is for defenses. Indeed, the footnotes to Tennessee’s pattern jury instructions in criminal cases (see Tennessee Pattern Jury Instruction Criminal 36.08) specifically instructs the judge to charge a jury as follows: “If an exception is charged, it should end with the following sentence: “If the defendant proves this exception by a preponderance of the evidence, you must find [him] [her] not guilty.”“
The Republicans in control of Tennessee wrote a statute in 2021 that puts the burden on the citizen to prove to a jury in a criminal trial that they fit within all of the conditions imposed by the 2021 permitless carry law.
Can you be stopped if an officer sees someone carrying a gun in Tennessee? Yes.
In a state that has real constitutional carry, it is not a crime to carry a firearm in public with the intent to go armed. Since it is not a crime, an officer has no probable cause to stop someone merely being seeing them armed in public because, of course, doing so is not a criminal act.
But in Tennessee, carrying a firearm in public with the intent to go armed is a criminal act. If an officer see someone doing so, they have observed the core elements of a crime and that officer has the authority to stop the individual, detain them, and to decide whether or not to charge them for committing the crime?
But isn’t the permits or the permitless carry law an exception to that? No. The permits and the permitless carry law are defenses to a criminal charge which are only required to be addressed at trial with a jury. That does not mean that an officer is precluded from using his or her discretion and not charging the crime if it reasonably appears to them that the charges would result in a “not guilty” verdict at trial – but that is a matter of discretion.
The problem is that because of the way that Tennessee’s statutes are written, an officer who observes someone carrying a firearm in public in a manner which indicates an intent to go armed (such as carrying it holstered) could easily demonstrate that there is probable cause to believe at that point that a crime has been committed. That may be all that is required to make an “investigatory” stop for the crime of carrying a firearm with the intent to go armed.
Tennessee law has changed numerous times since its modern handgun permit law was first written in 1994, but none of those rewrites have deleted the crime of carrying a firearm with intent to go armed. Carrying with intent to go armed is still a crime.
Further, it is not as if the Legislature does not know how to do that because during this same time frame it did delete the crime of carrying a knife with a blade greater than 4 inches. Instead, the Republican controlled Legislature has chosen a path where this problem, this trap for citizens, has continued year after year. What the Legislature has done is to preserve the capacity of law enforcement to at least stop citizens who are carrying a firearm in public and it has placed the burden on the individuals to prove after they have been stopped that they fit into an exception or defense.
Some have suggested after the passage of the 2021 law that an officer cannot in Tennessee perform a “Terry stop”, which is also known as a “stop and frisk”, when they observe an individual carrying a gun in public. However, it may be that such conclusions miss the point of the Supreme Court in its decision in Terry v. Ohio, 362 U.S. 1 (1968). The Court in that case phrased the question before it as this “whether it is always unreasonable for a policeman to seize a person and subject him to a limited search for weapons unless there is probable cause for an arrest.”
In Terry a law enforcement officer observed some individuals engaged in conduct which might be described as “casing” a specific business. No crime was observed but the conduct did make the officer concerned that a crime, a robbery, was about to occur. The officer approached the individuals, apparently identified himself and when the individuals did not offer identification the officer took custody of one of the individuals and began searching the individual in what was clearly a Fourth Amendment seizure. In the course of that search, the officer discovered a revolver. The Court was reviewing whether the officer’s actions were reasonable under the Fourth Amendment. One of the issues for the Court was whether the officer, under the facts and circumstances known to the officer at the time, acting reasonably in believing that a crime had been or was being committed by the detained individual and whether it was reasonable for the officer to make an investigatory stop. Under the facts of this case, the Court found that the initial investigatory stop was justified. The Court also considered, if there was a reasonable basis for an investigatory stop, whether there was also a reasonable basis to pat down or frisk the individual for weapons for the officer’s safety. The Court rejected the argument that a frisk was only appropriate incident to an arrest. Instead, it “conclude[d] that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.”
In Tennessee, the issue of whether an officer can perform the first type of stop discussed in Terry – the investigatory stop – is the analysis that is dependent on the state statutes regarding whether carrying a firearm in public is the exercise of a constitutionally protected right or whether it is merely a criminal act for which the individual may have one or more available defenses. If the conduct was the free exercise of a constitutional right, there would be no probable cause for an officer to believe a crime was committed by merely observing an individual carrying a firearm with the intent to go armed. But that is a law that the Governor and the Tennessee Legislature have repeatedly refused to enact in Tennessee – a law that implements true constitutional carry.
Instead, Tennessee’s Legislature and Governor have chosen to make it a crime to carry a firearm in public and have set up a spectrum of defenses or exceptions that the individual must demonstrate to avoid or defeat the criminal charge. The observation of those facts by an officer is likely all that is required for an officer to make that initial investigatory stop. At that point, it is up to the officer and the individual to address the issue, if both desire to do so, of whether there is a valid and available defense or exception to the crime, whether the individual meets all the elements of the defense or exception and, consequently, whether it would be a waste of time and effort for the officer to charge the individual with a crime only to have it later be dismissed when the defense is raised.
Is the Governor’s 2021 law an improvement for Tennesseans?
While some have championed the Governor’s law as a major victory for Tennessee’s gun owners, a detailed analysis suggests otherwise. As discussed above, it may enable some limited classes of individuals who can legally own firearms to under limited circumstances carry a handgun of a certain length without a permit but the entire scheme is too complicated and confusing.
Furthermore, as noted above, it is not presented in the law as removing infringement on a “right” but it is instead addressed as the Legislators in state of Tennessee “allowing” certain groups of people nothing more than an exception to a criminal charge. It is the continued existence of that criminal charge which negates entirely the assertion that Tennessee is as of July 1, 2021, a constitutional carry state.
The Governor’s 2021 law has created needless and avoidable risk and confusion on these issues. The Governor’s law simply does not remove the infringements on our rights as the 2nd Amendment mandates. Tennesseans mistakenly seeking to lawfully exercise their Second Amendment rights under the Governor’s law are exposed to criminal prosecution and in some instances may permanently lose the right to even own firearms.
The United States Supreme Court more than a decade ago held in its Heller decision that the Second Amendment protects an individual right and that this right includes the right to use firearms for self-defense. The Supreme Court in its McDonald decision expressly held that the Second Amendment’s “shall not be infringed” language prohibits not just the federal government but the state and local governments from infringing the protected rights of citizens. Despite the language and application of the Second Amendment to restrain the State of Tennessee’s authority on this issue, the Governor and most in the Legislature eagerly enacted this legislation in 2021 with the full support and encouragement of the NRA. The Governor’s law disregards the core holdings of the US Supreme Court and instead merely serves to perpetuate and preserve state infringements on constitutionally protected rights
Fortunately, it is clear that some legislators do understand what the 2nd Amendment prohibits and that presents an opportunity that in time Tennessee may actually enact legislation that results in real constitutional carry in Tennessee. For example, in a committee hearing on March 3, 2021, Rep. William Lambert presented the Governor’s Bill (HB786) to the House Criminal Justice Subcommittee and at the beginning of that presentation he described the bill as “constitutional carry”. Negating that conclusion, he then lists various restrictions in terms of both the individuals who would be allowed to exercise that right as well as noting that even those select individuals will only be able to carry handguns and not all firearms. Rep. Jerry Sexton stated (at approximately 4 minute mark) “[i]ts my understanding and I will ask you [Rep. Lamberth] if you agree with this that whenever the permit was imposed, it would be unconstitutional and what we are trying to do here is bring it back into agreement with the constitution that we have the right to keep and bear arms….” In response, Rep. Lamberth stated “… under our current permit process, it is certainly I think a violation of your 2nd Amendment and 4th Amendment rights and others because unless you’ve got that permit and paid that fee you can’t full the destiny that our Founders intended in this country to exercise your freedoms.” Tennessee needs a majority of legislators in both houses who embrace the fundamental understanding of the 2nd Amendment that is reflected in Rep. Jerry Sexton’s comment. Right now, we do not have that.
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