In the past week, gun control advocates and abolitionists have taken advantage of the intentional murder of innocent victims at a private school in order to renewed their agenda to eliminate as much as possible civilian firearms ownership and possession. In the last week, they have called repeatedly to prohibit only civilians from owning certain classes of firearms and they have renewed a push for “Red Flag” laws which allow the government to seize firearms from individuals.
Not surprisingly Tennessee’s Lt. Governor Randy McNally, who claims to be a conservative Republican (but see stories about his Instagram involvement) came out almost immediately in support of enacting a Red Flag law in Tennessee.
Republican House Speaker Cameron Sexton has not been reported as openly stating that he supports a Red Flag law, but he has not publicly rejected it either. He was quoted in news reports that he is willing to have a discussion that would apparently include a Red Flag law. WKRN reported “Look, if there’s people who want to discuss it, we’re willing to discuss it,” [Cameron] Sexton said. “We’re not saying that we’re agreeable to it, but if you want to have a discussion, every option should be on the table.”
In a news report from the Tennessean newspaper on March 31, 2023, Governor Lee indicated his plan “would expand an ongoing proposal to place an armed guard at every Tennessee public school and provide grant funding for private schools to do the same. The state would require private schools to hire guards with the same level of training as public school requirements, though it can’t require private schools to take advantage of the program.”
Also in the Tennessean article, the reporter notes that Governor Lee would not “directly say” he supports Red Flag laws, but then the reporter quotes other statements from Governor Lee which strongly suggest he supports a Red Flag law.
“Though Lee wouldn’t say directly if he’d support or push for an extreme risk protection law in Tennessee, he said lawmakers are considering many options and he believes some people shouldn’t have access to weapons. “Most practical, thoughtful people believe that individuals who are a threat to themselves or to others shouldn’t have access to weapons,” Lee said in a Friday interview with the Tennessean. “In my view, that’s a practical, thoughtful approach.”
Two former Tennessee Governors, Democrat Phil Bredesen and Republican Bill Haslam submitted a joint editorial opinion in the Tennessean on March 31, 2023, in which they jointly called for the not only a proposal to “start with” Red Flag laws but laws imposing “legal responsibility” (perhaps criminal charges?) for gun owners who do not keep their firearms locked up.
We could start with “red flag” laws — a way to identify people with potentially dangerous mental health issues and a legal process to remove their access to firearms. That might have been effective in the shooting we just had; the shooter was under treatment for mental health issues and yet still obtained and possessed multiple guns.
Another small step might be making gun owners take more legal responsibility for securing their weapons. Anyone, conservative or liberal, who believes in the value of personal responsibility should be able to agree that it is irresponsible to possess a dangerous weapon and not reasonably secure it from misuse by others.
A review of these news reports and a search for others indicated that none of those showing support for or a willingness to consider Red Flag laws, as the gun control advocates are demanding, have even considered the issue or discussed it openly of whether government has the power or authority to enact such laws. The United States Supreme Court examined in its June 2022 opinion in New York State Rifle and Pistol Association v. Bruen in the burden that the 2nd and 14th Amendments impose on government whenever there is discussion of enacting (or failing to repeal) laws which might infringe a person’s rights as protected by the Second Amendment.
In Bruen, the United States Supreme 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. Bruen at pages 2122, 2134.
The Bruen 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 page 2126.
The only appropriate inquiry, according to the United States Supreme Court in Bruen, is what the “public understanding of the right to keep and bear arms” was during the ratification of the Second Amendment in 1791 …”. Bruen at pages 2137–38.
All of these elected officials have taken a constitutionally required to take the following oath of office:
Each of those legislators will take an oath of office. The oath is set forth in Article X, Section 2. It provides:
Each member of the Senate and House of Representatives, shall before they proceed to business take an oath or affirmation to support the Constitution of this state, and of the United States and also the following oath: I______ do solemnly swear (or affirm) that as a member of this General Assembly, I will, in all appointments, vote without favor, affection, partiality, or prejudice; and that I will not propose or assent to any bill, vote or resolution, which shall appear to me injurious to the people, or consent to any act or thing, whatever, that shall have a tendency to lessen or abridge their rights and privileges, as declared by the Constitution of this state.
TN Constitution, Article X, Section 2
The United States Supreme Court has made clear that existing and proposed laws which impact the right of an individual to own, keep, bear and purchase firearms is protected by the Second Amendment and that that protection is enforced against the states by the incorporation doctrine under the Fourteenth Amendment. The United States Supreme Court has further made clear that any government action which would seek to limit, infringe or negate that right presumptively violates the Second Amendment. Such a violation gives rise to possible federal civil rights claims against the state and perhaps even the state officials who knowingly take action to violate those rights.
The United States Supreme Court has put the burden on governments and government officials who seek to propose any law or other government action which might impact a right within the scope of the Second Amendment to demonstrate by clear evidence that such a restriction existed as part of the national historical tradition as of 1791.
Not a single one of these oath-taking public officials has tendered any evidence at all that there was a mechanism which was nationally recognized as of 1791 for government to engage in any conduct that would be the same as or closely analogous to a law or regulation that existed in most states as of 1791.
Even if some of these elected officials are couching their possible support as nothing more than considering a “discussion” or having Red Flag laws “on the table” the first step now required in any such conversation is not whether it could or might help stop intentional killings. Instead, the United States Supreme Court’s Bruen decision now imposes a constitutional requirement on these elected government officials to first demonstrate that such a law was part of the fabric of the original states’ “national historical tradition” of 1791. If they cannot carry that burden, then constitutionally they have no authority or discretion to even discuss whether such a law makes good public policy now.
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