On April 20, 2023, Tennessee Firearms Association received a “leaked” draft of a Red Flag law which information indicates is likely being offered by Tennessee Democrats since it seeks to amend House Bill 1233 Senate Bill 1029 which has Democrat sponsors in the House and Senate. Of particular concern, however, is that House Republican Caucus Chairman Jeremy Faison. Since a high ranking House Republican leader is a sponsor on the bill, it must be considered whether this is a second attempt by Governor Bill Lee to get a Red Flag law to the floor.
The bill was placed on hold in the House on April 4, 2023. Shortly after than, Rep. Faison signed on as a sponsor and indicated that he was working with the Democrat sponsor on this bill, a gun control bill. Again, since the proposed Red Flag amendment does not indicate which Legislators requested or drafted it, we don’t know whether Rep. Faison is supporting or opposing this Red Flag law – all we know is he is a sponsor on the bill that would be amended to carry it.
Also on April 4, 2023, the Senate version of the bill was reset for January 2024. However, on April 5, 2023, a motion was filed to bypass the Senate Judiciary deferral and to bring the bill directly to the Senate floor. That motion so far does not appear to have been heard.
The Democrat Red Flag law proposal may actually be worse than that openly proposed by Governor Bill Lee. However, which one is worse should be merely an academic question since both are clear violations of the rights of individuals to keep and bear arms as protected by the Second Amendment. Neither bill proposal makes any effort to meet 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 created a constitutional threshold against which any proposed government regulation must be measured. It prohibits any proposed government infringements on the rights protected by the Second Amendment unless certain conditions are shown to exist by the government proponent. The Court stated that the Constitution guarantees 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.
These two Red Flag proposals clearly violate the Court’s threshold mandate. Nothing on the face of the bills suggests any effort was made to recognize or meet that Constitutional requirement. No supporting preamble or memorandum has been issued to address those constitutional requirements.
The continued shenanigans to push through and enact a Red Flag law in the rush and confusion that exists when the Legislature suspends all of its rules should be condemned – particularly when the subject of such legislation is the intentional deprivation of a constitutionally protected right.
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