On April 19, 2023, reports are suddenly surfacing that Governor Bill Lee has released a 13 page bill that would substantially change Tennessee’s criminal code and mental health codes to implement a “Red Flag” law. The proposed amendment which was released this afternoon does not indicate which bills are being amended, who the sponsors are, when the bill would be heard in a committee or give anyone outside of government the opportunity to review, comment on or oppose the legislation. It is the typical move of a tyrant.
The first critical flaw, as expected, with Governor Lee’s proposal is that it is completely devoid of any details or information to show that it meets the constitutional threshold requirements established by the United States Supreme Court in New York State Rifle & Pistol Association v. Bruen, 142 S. Ct. 2111 (2022).
The Bruen decision has created a national stonewall – which Governor Bill Lee continues to blatantly disregard – against which any proposed government regulation must be measured. It is a constitutional blockade which prohibits any proposed government infringements on the rights protected by the Second Amendment unless certain conditions are shown to exist by the government proponent.
In Bruen, the Court stated that the Second and Fourteenth Amendments together guarantee individuals not only the right to “keep” firearms in their homes, but also the right to “bear arms” in public, meaning the ability of “ordinary, law-abiding citizens” to carry constitutionally protected arms “for self-defense outside the home,” free from infringement by either federal or state governments. Id. at 2122, 2134.
The Court held 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 Court stated that the only appropriate inquiry would be what the “public understanding of the right to keep and bear arms” was during the ratification of the Second Amendment in 1791. Bruen at 2137–38.
Thus, what the Supreme Court did in Bruen is to hold that the public debate about the scope of the prohibition on government infringement of the rights covered by the Second Amendment ended in 1791 with the adoption of the Second Amendment. The Court stated that only those laws that existed as of 1791 and which were sufficiently widespread to be part of the “nation’s historical tradition” as of that time for dealing with issues – any issues – pertaining to civilian ownership of firearms can be considered as options by government today. That is, if the government cannot point to a specific set of laws as of 1791 that dealt with an issue – such as the mentally defective possessing a firearm – then the government cannot rationalize new categories of infringements today.
The burden to show the scope of available options – as of 1791 – to deal with mentally or emotionally ill individuals who pose a risk of harm to themselves or others is on the government, Governor Bill Lee has never identified any such law of national historical tradition that would support his call for any enhanced order of protection, i.e., Red Flag law today. As of today, no Legislator has announced any historical precedent existing as of 1791 would be the basis for a Red Flag law in Tennessee today.
Yet, Governor Lee, in callous disregard of the United States Supreme Court and the Constitution, proposes a complicated legislative package that represents a not unsurprising cavernous vacuum of constitutional stewardship. The simple fact is that nothing he proposes can be aligned with any law or regulation that existed as of 1791 for dealing with people who pose a risk of harm to themselves or others.
The proposed legislation seeks to create a procedure that is referred to as a “temporary mental health order of protection” that must be filed by a law enforcement officer or agency. There is no indication that the petition can be filed by non-law enforcement. Unlike existing procedures for emergency involuntary committals, there is no requirement that the petition be supported by qualified sworn statements of physicians or qualified mental health professionals. However, at the initial hearing on the petition, the court “must order” the individual to submit to “an assessment for suicidal or homicidal ideation” by an “evaluator” who has been certified by the commissioner for mental health and substance abuse services.
The hearing is not to determine if the individual is suffering from a mental or emotional health condition that causes the individual to be an immediate risk of harm to themselves or others. The hearing is to determine whether the individual “poses a current and ongoing substantial likelihood of serious harm by having in the respondent’s custody or control or by purchasing, possessing, or receiving, a firearm or ammunition;” Thus, if the person does not have any firearms or ammunition and there is no evidence of any attempts to acquire some, then apparently the “temporary mental health order of protection” cannot be issued and the mentally unstable person that poses a risk of harm remains at liberty to go get knives, other weapons, drive cars, engage in DUI activities or run for public office. The entire focus of Governor Lee’s misguided Red Flag law is seizing firearms but leaving the individual loose to do whatever harm to themselves or others that they might otherwise do.
If the firearms seizure order is issued, the order can be in effect for up to (and likely would be in effect up to) 180 days. It can be renewed and extended FOREVER. If issued it requires the person to get rid of any firearms or ammunition. It also requires the state to notify appropriate authorities so that the individual is entered into the computer databases so that federally licensed gun dealers cannot sell firearms to the individual.
Curiously, the procedure specifically states that the “temporary mental health order of protection” is not “an adjudication of the respondent as a mental defective for purposes of 18 U.S.C. § 922.” That is likely true because federal law does equate things like alcohol dependency with the term “mental defective”. In fact, almost all of the conditions described in Governor Lee’s legislation fall outside of how federal courts have interpreted the statutory phrase “mental defective.” In that regard, Governor Lee is proposing extreme new categories of prohibited characteristics that would deny an individual the constitutionally protected right to keep and bear arms.
There is nothing in the proposed bill that keeps these orders confidential, that removes them from open records requests or that allows an individual to have the record entirely expunged (including administrative copies) order of protection is ever terminated.
It is beyond question that this proposed amendment completely fails the United States Supreme Court’s threshold requirements for constitutionality as set forth in Bruen. Governor Bill Lee should be admonished for his willful neglect of his oath of office and his intentional proposal of legislation that would constitute a clear and obvious civil rights violation.
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