On April 11, 2023, Tennessee Governor Bill Lee made public statements calling for expanded “new” orders of protection and also calling for the passage of Red Flag laws in Tennessee. His comments are clear evidence that he either has not read the United States Supreme Court decision in New York State Rifle and Pistol Association v. Bruen or that, if he did read it, he chooses to disregard it.
Governor Lee has already signed Executive Order 100 which requires state officials to update state databases within 72 hours of any new “criminal history information and court mental health information.” The executive order is silent on whether the categories of information are first to be assessed under the Bruen decision’s mandate that only limited information which would have been relevant as of 1791 can form the basis for infringements of the rights protected under the Second Amendment.
Certainly, there are some categories of “court mental health information” such as data collected in ex parte proceedings as part of petitions for involuntary emergency committals that do not rise to the level of being a disqualifying factor under the Gun Control Act of 1968 nor Tennessee’s firearms purchase or possession laws that should not be simply imported into the state databases. Governor Lee appears in his public statements to express no interest at all in protecting the private, mental or emotional health records of Tennesseans particularly when such information is irrelevant as a matter of law to the question of whether an individual can legally purchase or possess a firearm.
A more troubling component of Governor Lee’s public statements had to do with what is clearly a call by him for Tennessee to pass a Red Flag law. He referenced the Covenant School murders as perhaps an event that would facilitate the passage of what he avoided calling a Red Flag law by referencing the substantial bipartisan support for the legislation that passed last week to spend millions of additional dollars to increase the presence of armed officers at public and private schools and to “harden” Tennessee’s school by what some understood as converting them into essentially locked down compounds.
Governor Lee described his desire to rush through an additional law here in the next few weeks to “remove individuals who are a threat to themselves or to our society, to remove them from access to weapons.” He continued by stating that he wants the Legislature “to bring forth … measures to do that, to strengthen our laws to separate those dangerous people from firearms.” Although that is clearly a Red Flag law, he wants to call it a “new stronger order of protection law.”
Nowhere in his press statements did Governor Lee indicate that he wanted to use or improve the laws that now exist which are designed to identify people with emotional or mental health issues, to determine by competent medical proof whether those mental or emotional health issues cause the person to be a material risk of harm to themselves or third persons, and, if so, to remove the person from society by temporarily involuntarily holding them for up to 2 weeks for mental health evaluation and treatment. These laws remove the risk – the person – from the capacity to do harm. These laws focus on the real risk – a severely mentally disturbed individual not on some inanimate object. Tennessee already has these laws.
Instead, Governor Lee’s proposal would be to leave the risk, the person, free in society. It would leave the person free to acquire other weapons, perhaps non-firearms weapons. His proposal does not remove the risk. His proposal operates under the delusion that merely “separating” the person from a particular firearm or making it harder for them to purchase another one would eliminate the risk. That is itself a unfounded delusion.
One may ask why is it that Governor Lee proposes a Red Flag gun control law rather than proposing laws to address the cause of violence or to improve or even expand mental health programs in the state – programs which can and should focus on identifying individuals whose mental or emotional health conditions make them a clear and present risk to themselves or others?
Why? Because Governor Lee and the proponents of what he seeks are focused on unconstitutional gun control myths as a means of dealing with a more complicated problem of mental or emotional health. They appear interested in appeasing the mob stirred up by Representatives Justin Jones, Justin Pearson and Gloria Johnson rather than standing firm and protecting the rights that are protected by the Second Amendment.
Further, not once does Governor Lee even attempt to comply with the requirements now imposed on governments as required by the United States Supreme Court under its Bruen decision. Not once does he articulate any law that constituted part of the “nation’s historical tradition” of regulating the individual’s fundamental right to keep and bear arms as that right and those restrictions existed in 1791.
The failure to Governor Lee and the Legislative proponents to clearly comply with the mandates of Bruen should raise concerns for all Tennesseans that these government officials are willing to use the perceived power and authority of their government offices to engage in acts of official oppression by ignoring unequivocal constitutional limits on the scope of discretion, if any, that they have on the issues related to the scope of the Second Amendment’s protections.
Finally, do not let it go unnoticed that while Governor Lee takes the opportunity of the Covenant school murders to make calls for gun control, he has not once called for immediately arming teachers (as he promised in 2018), for immediately enacting REAL constitutional carry, or for immediately repealing numerous gun free zones. He is, predictably, ready and eager to call for gun control in the asserted but constitutionally irrelevant (according to the United States Supreme Court) “reasonableness” of gun control that he attempts to justify as public safety.
But, never forget, that he and many other state Legislators are not willing to stand firm to protect to the fullest extent required by the Second Amendment your right to keep and bear arms for the protection of your life and the lives of those you love from threats of criminals, terrorists or even the mentally ill.
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