Tennessee Firearms Association started working with state legislators in 1995. At that time, the Tennessee Legislature was in the total control of Democrats in both the House and the Senate. At that time, the chairmen of the respective Judiciary committees were rural, seasoned trial attorneys who, frankly, worked with Tennessee Firearms Association on some of the legislation that was being discussed, just as they worked with rural Republicans in the Legislature.
In discussions with Legislators back in the “early days”, we were cautioned by some of the 2nd Amendment friendly legislators, including Democrats, about how things worked in the Tennessee Legislature. They were very open about which legislators they felt were Second Amendment supporters and which legislators we should, well let’s say, not consider as sponsors for legislation.
For example, one Nashville area legislator often talked about how the “best way to kill a piece of legislation was to sponsor it”. The legislator explained that by sponsoring the legislation the legislator could totally control it. They had control over whether it was placed on the calendar to be heard in subcommittees, committees or even on the floor. They had control over “friendly amendments”. They had control over whether adverse amendments should cause the legislation to be pulled. They even had some control over asking “experts” to testify as such in committee hearings. Sponsors had then and have now a lot of power over legislation, how its amended, what the fiscal note says, and whether it moves through the committees.
In another context, friendly legislators explained how legislators could take advantage of the House and Senate rules to make it appear that they were “gun friendly” when they were not. This misdirection could include stunts like campaigning that they were “strong Second Amendment supporters”, campaigning with photos of themselves hunting, shooting and/or at the range and other public representations that were difficult to disprove. There were other stunts as well. These other stunts could include things like voting against a bill in a committee and then at the last minute – once the damage was done – directing the clerk to record the legislator’s vote other than what it had been – the “Jim Colely” stunt. Another tactic would be to disregard roll call recorded votes and allow the committee chair to rule in his or her discretion on so called “voice votes”.
In yet another context, friendly legislators explained that sometimes they knew from caucus meetings and/or information from leadership or even members in the other house, that the legislation would never pass. Perhaps a fiscal note would kill it, perhaps it would be sent to “summer study” or perhaps it would just somehow never get to the floor. Knowing that information – the predestined future of the legislation – would allow a legislator to speak out and even vote for legislation that they really did not support but they knew that doing so would give them the ability to claim that they “voted for” or “supported” the legislation but use the excuse that “the other house” or “a committee on which I do not serve” killed it.
All of these are tricks of the trade and tricks which can mislead voters and constituents on where specific legislators stand on the Second Amendment or other issues. This makes it hard to do vote based scorecards on legislators. Instead, you have to look at legislative results – did the legislation get enacted – rather than individual actions and statements that may be calculated to mislead.
We have seen some evidence of this in the last 13 years. For example, in March 2021, Nashville WTN radio host Brian Wilson discussed the governor’s permitless carry legislation with House Speaker Cameron Sexton. In that interview Speaker Sexton said he expected that there would be 58 to 62 votes for the Governor’s 2021 permitless carry bill, assuming that there were no amendments. However Speaker Sexton felt that potentially approximately 10 Republicans would vote against even the Governor’s bill if it were amended to make it real constitutional carry. But, Speaker Sexton never named who those House Republicans were that would not vote for true constitutional carry in Tennessee.
As we look forward to 2023, will there be transparency from the Legislature on who specifically does and does not support real constitutional carry (assuming it even gets filed)? Will there be transparency regarding which legislators will or will not support eliminating gun free zones in non-sensitive places as Justice Thomas explained is prohibited by the 2nd Amendment in the United States Supreme Court’s June 2022 decision in the case of New York State Rifle and Pistol Association, Inc. v. Bruen? Will there be transparency concerning possible legislation to protect those forced to use self-defense force from abusive prosecutions by law enforcement and district attorneys such as was suffered by Kyle Rittenhouse? We can make a judgment based on past levels of transparency as an indicator of future expectations.
One area to be watching in 2023 and beyond is the potential that Second Amendment legislation may move successfully through one house, perhaps the House of Representatives, but be stalled, derailed, defeated or otherwise trampled by the other house, perhaps the Senate. I have heard legislators say, and in fact some in leadership say, things to the effect of “we can pass it in the House but we don’t control what happens in the Senate” or vice-versa. But is that entirely accurate?
The Legislature is a two part body. To do anything material, both houses have to agree and the agreement must match exactly. Two things the Legislature must do each year is a) pass a budget and b) adjourn. One house cannot do either conclusively without the other house’s concurrence. So, what would happen if, for example, the House were to pass real constitutional carry in 2023 but the Senate was giving indicators that it would not? Clearly, the House could delay or defer passing a budget. It might also delay or defer adjourning. It could also delay or defer passing any number of the expected 1000 or so bills that will be introduced in the Legislature in 2023, including some which presumably at least a majority of the Senators would want to see enacted into law. Both houses have political power that can be flexed when directed at the other.
A fundamental constitutional right – which Tennessee law currently tramples into nothing more than a highly regulated privilege – might be a topic on which political power should be flexed. But, of course, the fact that such an option exists does not mean that it would be used because, to do so, might indicate that someone is not a “team player”.
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