In June 2022, the United States Supreme Court released it’ s opinion in New York State Rifle and Pistol Association v. Bruen in which it struck down a New York handgun permit law as violating the Second Amendment. In that opinion, written by Justice Thomas, the Court held that a state cannot constitutionally prohibit a citizen from carrying a firearm in public.
Of equal significance, the Supreme Court established in Bruen that, “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’” Bruen at 2126.
The only appropriate inquiry, according to Bruen, is what the “public understanding of the right to keep and bear arms” was during the ratification of the Second Amendment in 1791, and perhaps during ratification of the Fourteenth Amendment in 1868. Bruen at 2137–38. This is how the Tennessee Constitution must be interpreted as well, as the state provision cannot and should not be interpreted as providing lesser protections than its Second Amendment counterpart. Indeed, the United States Supreme Court ruled in McDonald v. City of Chicago in 2010 that the Second Amendment, by operation of the “incorporation doctrine” of the Fourteenth Amendment, applies fully to restrict the actions of states and local governments. Thus, even if Tennessee’s constitution purports to give the legislature the authority to “regulate the wearing of arms”, that authority is now constitutionally rendered moot under the McDonald decision.
On March 8, 2023, a number of bills were being heard in the Tennessee Senate Judiciary Committee which is chaired by Sen. Todd Gardenhire. During that hearing, several pro-2nd Amendment bills were being offered by Sen. Joey Hensley and others. Most of them were being opposed by representatives from the Tennessee Department of Safety and other administrative branches under the leadership of Governor Bill Lee. Unfortunately, many anticipate that this year the Senate Judiciary committee is extremely “unfriendly” (as it typically has been in the past) to true Second Amendment legislation even without the urging of Bill Lee’s administration.
During the Senate Judiciary hearing, Senator John Stevens, who is also sponsoring SB1503, took a moment to make sure that the Legislative record was clear that the members of the Senate Judiciary were aware of the constitutional limits on their discretion to vote to defer or defeat pro Second Amendment legislation.
Senator Stevens should be thanked for making sure that the Supreme Court’s mandate in Bruen was clearly explained to the members of the Senate Judiciary. His bill, SB1503, is scheduled to be heard in the Senate Judiciary on March 13, 2023. It will be important to see which Senators ignore the Supreme Court and instead align with the spokespersons from Bill Lee’s administration.
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