On January 23, 2023, the State of Tennessee, under the leadership of Attorney General Jonathan Skrmetti, entered into an agreed order which concluded that laws enacted by the Tennessee Legislature, under a Republican super-majority, constitute an unconstitutional “scheme” that had the effect of denying 18-20 year olds the opportunity to get a handgun permit or carry under the 2021 permitless carry law.
According to the Agreed Order “The Challenged Scheme regulating the possession and carrying of handguns that restricts individuals aged 18 years old to 20 years old from carrying handguns or obtaining permits to carry handguns on the basis of age alone violates the Second and Fourteenth Amendments to the United States Constitution.”
Even worse, the Agreed Order concludes that the legislation, supported by a Republican governor and carried by Republican legislative leadership constituted a federal civil rights violation. One consequence is that the state agreed to pay the legal fees of the plaintiffs for violating their civil rights.
But, there is another perhaps more systemic and critical problem. Federal law is clear that it is a federal crime when a person who is acting under “under color of any law” violates another person’s civil rights “willfully” See, 18 U.S.C. § 242. Keep in mind that Tennessee Firearms Association members have been telling these same legislators for many years that the laws that they were passing and failed to repeal were violations of the 2nd Amendment. There is now a question of whether the “color of law” actions of some legislators and governors were willful violations of the civil rights of people in Tennessee.
Another lesson to be learned from these events is that even if the Tennessee Legislature and its Governor continue to ignore the Second Amendment and play games with “incrementalism” excuses, it is clear that Tennesseans have and perhaps must increasingly turn to the courts to challenge the unconstitutional laws that the Legislature has either enacted in the last decade or refused to remove. But that is another topic for another day.
Tennessee House members are presently required to have all of their proposed legislation for 2023 filed by January 30. That means that we should have some indication in just a few days indicating how seriously the Tennessee legislators are going to take the Second Amendment and its mandate. Now, this is not as if the constitutional provision has suddenly changed. In fact, it has not changed at all since 1791. Further, it is not as if it is complicated – it is only 1 sentence.
There is no debate that a number of Tennessee legislators who have been loyal to the Second Amendment have been offering legislation to adopt real constitutional carry, to allow 18-20 year olds to exercise their constitutional rights, to allow Tennesseans to have choices for self-defense that include “firearms” and not just handguns and that seek to eliminate unconstitutional gun free zones. We applaud those legislators.
But, at the same time, there are not enough legislators who either understand or truly embrace the mandate from the Second Amendment prohibiting government infringements. That fact is evidenced because when efforts were made by some legislators to enact true 2nd Amendment legislation in the past, the leadership did not get behind it and the majority of other legislators clearly did not support it. Instead, you would often hear Republican legislators talking about “incrementalism” and “moving the ball down the field”. You would hear, for example, House Leader William Lamberth admitting in committee hearings that the permitless carry legislation in 2021 falls short of the Second Amendment but asserting that it is the “biggest bite of freedom we can get at one time”. Why? Which legislators were limiting the size of freedom? Which legislators were knowingly disregarding the Second Amendment?
The legislative archives provide some answers. Those archives contain videos of members and bill sponsors speaking in subcommittees, committees and on the floor. Those videos are damning proof that some of them knew that the legislation that they are sponsoring and/or voting for falls short of what the Second Amendment requires but yet that is the furthest limit that they were willing to “allow” Tennesseans to exercise with respect to their constitutionally protected rights. These legislators knowingly infringed and continue to infringe your rights by using terms like “reasonable” and “public safety”. But it is not just legislators, the civil rights violations include actions and testimony from representatives from Bill Lee’s administration, perhaps including the spokespersons from TBI and the Department of Safety. The civil rights violations might also arise from the positions taken by uniformed law enforcement officials – including some sheriffs and chiefs of police – who almost always testify against any legislation to repeal the infringements by state or local government laws or regulations on the rights protected by the Second Amendment.
Over the next few months, you will likely see new legislation and efforts made by some legislators to remove these unconstitutional infringements so that we do not have to get more courts to do so by court mandate. But, you will see the same old tired and unconstitutional excuses. Those opposing your constitutionally protected rights and bowing to the “gods” in the various law enforcement and agencies under Governor Lee’s control will likely continue to tell us that they are taking the Second Amendment “seriously”, that they are working with leadership and/or the Governor to address the issues, that they are being diligent. As you hear those excuses, be aware how similar they sound to the excuses that Karine Jean-Pierre constantly throws out to defend the unconstitutional and sometimes criminal actions of Joe Biden and his administration.
Tennesseans need to pay close attention to those legislators who have been and who continue to step up and zealously fight to remove all infringements on your rights as protected by the Second Amendment.
Tennesseans also need to take careful note of those governors, legislators, administration officials and law enforcement officials who are using the terms “reasonable”, “incremental”, “moving the ball down the field”, “biggest bite of freedom”, etc., when they speak about legislation that has the clear result of failing to remove the unconstitutional infringements on the rights that the Second Amendment prohibits from infringement – period.
Watch for those Tennessee legislators and others acting under “color of law” who borrow Karine Jean-Pierre’s book of excuses rather than Justice Thomas’ clarity of the 2nd Amendment’s mandate because it is those individuals who need to be reformed, replaced and potentially investigated as soon as possible.
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