Developments in the federal case of Beeler v. Skrmetti that is pending in east Tennessee (Case No: 3:21-cv-152) indicate that something very significant in the 2nd Amendment context may soon occur in Tennessee. Those developments, once they are public, may indicate that several Tennessee statutes, including several passed in the last 12 years by the Republican super majority in the Tennessee Legislature, may violate the constitutional rights of Tennesseans.
The case started off under the name of Bassett v. Slatery. The title has changed because of the substitution of parties, but its the same case. The case was filed in April 2021, soon after the 2021 permitless carry law (which some have mischaracterized as a “constitutional carry” law) was enacted. The permitless carry legislation was filed in 2021 by Senator Jack Johnson and Rep. William Lambert. However, it was treated as an “administration” bill because Governor Lee had announced in 2020 that he was pushing for constitutional carry to be enacted.
Tennessee Firearms Association had opposed the legislation in 2020 and again in 2021 because of the numerous problems that it had relative to the 2nd Amendment prohibition on government infringement of rights. Instead, TFA support other legislation, filed by other legislators, which was much more in line with true constitutional carry.
One of the constitutional defects with the 2021 permitless carry law was that it imposed unconstitutional restrictions regarding which individuals would be able to rely on the affirmative defense that the 2021 permitless carry law created by establishing numerous qualifications on which gun owners could carry without a permit and which could not. One such qualification was that the 2021 law allowed individuals in the age bracket of 18-21 to carry a handgun without a permit but only if they were in or honorably discharged from the military. (See, TCA Sec. 39-17-1307(g)). However, the law’s scheme meant that other 18-20 year olds who did not have the designated military service would be subject to criminal prosecution if they carried a handgun.
According to the federal complaint, the differential treatment of 18-20 year olds relative to the exercise of the rights protected by the 2nd Amendment was unconstitutional and an equal protection violation. That is a conclusion that TFA had asserted for years although the analysis fell on deaf ears with the majority of GOP legislators and both of the state’s recent Republican governors.
Until recently, the state of Tennessee, while being represented by Attorney General Slatery, had sought to have the federal case dismissed by asserting that the 2nd Amendment did not prohibit the state of Tennessee from making such choices regarding which citizens could be criminally prosecuted and convicted for carrying a firearm and which would be “allowed” a defense that they could raise to a jury if they were criminally charged.
Two things have occurred in 2022 which may have changed the state’s willingness to defend the decisions of the Governor and the Legislators who sponsored and supported this legislation. The first change was the US Supreme Court’s decision in the New York Rifle and Pistol Association v. Bruen in June 2022 which reaffirmed what the court has previously said concerning the fundamental application of the 2nd Amendment. The second change was that Tennessee Attorney General Slatery retired and the Tennessee Supreme Court appointed Mr. Skrmetti to succeed him.
Whatever the cause, in the last 2 weeks that have been developments in the federal case which suggest quite clearly that the state’s new Attorney General is not willing to further defend the constitutionality of the 2021 permitless carry law, at least with respect to differential treatment of 18-20 year olds who can otherwise legally purchase (through casual sales), own and possess handguns.
On November 18, 2022, the federal court issued an order staying the case for 60 days to submit an agreed order since they had jointly represented to the court that they “agreed on a path to resolution of the case that involves the submission of an agreed order of judgment that would resolve the case in its entirety.”
Given that the lawsuit is filed with the backing of FPC, it is unlikely that the plaintiffs are agreeing to just concede and agree with the state that the 2021 permitless carry law is constitutional particularly in light of the Supreme Court’s decision in Bruen.
Although many things could happen, one possible and probable “path to resolution” is that an order may be submitted where the parties agree that 18-20 years olds must be treated the same – that is, without regard to military service – under the 2nd Amendment. If that is ultimately what happens, it could also render some or all of the State’s handgun permitting statutes concerning eligibility for enhanced and/or concealed permits constitutionally invalid.
If this is the path that materializes, it will raise potentially other constitutional challenges – deserved constitutional challenges to a broad spectrum of Tennessee’s 2nd Amendment infringing laws.
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