The Tennessee 2024 Legislative Session starts in January. Already, some bad bills have been filed and more are certain to come. Likewise, Tennessee Firearms Association is talking with some Legislators, those who have either proven their Second Amendment support or who are at least willing to discuss the issue, about pro-Second Amendment legislation. To be candid, there are a lot of laws, regulations, ordinances and even executive decisions in Tennessee which violate the Second Amendment and need to be addressed.
One of the tools that citizens, particularly gun owners, need to embrace and wield like a sword in defense of our rights as protected by the Second Amendment is the Supreme Court’s June 2022 decision in New York State Rifle and Pistol Association v. Bruen, No. 20-843. Let’s briefly look at what the Supreme Court said and why there is no avoiding the Bruen decision in Tennessee (although we are have received reports for over a year that at least one Republican House member has asserted that Bruen is irrelevant in Tennessee).
The “Bruen Basis”
First, in Bruen, the Supreme Court made clear that the approaches that many lower courts, legislators and government officials had relied upon to knowingly infringe the rights protected by the Second Amendment were invalid. The 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 pp. 2122, 2134.
Second, the Supreme 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 p. 2126.
This second point contains two statements that are critically important. The first statement is that under the Bruen standard, if an activity (e.g., carrying in public) is an activity that falls under the Second Amendment negative mandate (“shall not be infringed”), then it is presumed legally and constitutionally that the activity is protected from any government infringement – period. The second part of the statement is what we will refer to as the “Bruen Basis”. That is, once it is determined that the conduct is protected by the Second Amendment then the government bears the burden, that is it “must demonstrate”, that the regulation (i.e., a statute, law, regulation, ordinance, etc.) is “consistent with this Nation’s historical tradition”. If the government cannot or could not demonstrate by clear evidence in a court of law that the regulation, perhaps a proposed law, is unconstitutional and prohibited by the Second Amendment’s negative mandate.
Further, the “Bruen Basis” requires the government to not only prove that the regulation is consistent with the Nation’s historical tradition, but the Supreme Court made clear that the national historical tradition that is relevant is the tradition that existed as of 1791 when the states ratified and adopted the Second Amendment. In the words of the Court that requires a determination of what the “public understanding of the right to keep and bear arms” was as of 1791. Bruen at pp. 2137–38.
The Supreme Court also considered whether the government’s frequent reliance on “public safety” or modern necessity was relevant to the question of whether specific conduct is protected by the Second Amendment’s negative mandate. The Supreme Court’s Bruen opinion makes clear that there are no “ifs, ands, or buts,” and it does not matter (even a little bit) how important, significant, compelling, or overriding the government’s justification for or interest in infringing the right might be. It does not matter whether a government restriction “minimally” versus “severely” infringes the rights protected by the Second Amendment. There are no relevant statistical studies to be consulted. There are no sociological arguments to be considered. The ubiquitous problems of crime or the density of population do not affect the equation. The only appropriate inquiry, according to the 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 pp. 2137–38.
Finally, Bruen makes clear that the government’s burden to establish the historical tradition is not satisfied by pointing to one or even a few states or territories that had such law in 1791 (much less later). It is irrelevant that that the law or proposed law is consistent with laws passed in the early part of the 20th Century (for example the National Firearms Act) or later in the century (such as the 1968 Gun Control Act) or even much later restrictions such as those that the ATF has tried to impose. Further, it is irrelevant that Tennessee has or may have had any particular law over the last 2 centuries. Bruen makes clear that the government must demonstrate a “national” tradition – not a tradition embraced by one or even a few states.
How to use the “Bruen Basis”
Citizens should be prepared to discuss with their legislators, to challenge any proposed legislation and to demand the repeal of existing regulations (laws) by using the “Bruen Basis”.
To do so, is simple. Follow these steps and, when possible, do so in writing with letters and emails.
1) Get the legislator or government official to clearly either admit that the activity or conduct (such as carrying a longarm or carrying in a specific gun free zone) is conduct that is within the scope of the Second Amendment.
2) If the legislator or government official will not admit that the conduct is covered by the Second Amendment, insist that they state the factual and historical reasons that they contend remove the conduct from the scope of the Second Amendment’s protections.
3) The next step is to request that the legislator or government official identify specifically the national historical tradition (existing as of 1791) which they contend is the same as or a close analogue to the proposed legislation, amendment or existing law. This step is necessary and it is important to be ready to remind the legislator or government official that the Supreme Court has expressly placed the burden on them to demonstrate that an existing or proposed law or regulation meets that “historical tradition” test.
4) All of these communications need to be done or at least confirmed in writing. Certainly, phone calls or face to face meetings are also important but it is more important to get these public officials to commit in writing. If they will not commit in writing after being given a chance, try again but make sure you tell them that if they refuse you may have to consider supporting (or recruiting) someone else in the next election.
5) It is important to share the information you get with other voters. Share it on social media, in political meetings, at dinners, and with Tennessee Firearms Association.
6) We have even created a new email account just for this purpose – BruenBasis@tennesseefirearms.com – please use it.
Although we elected legislators to make public policy, we cannot and should not blindly let them go about that task. It is critical that we stay involved, stay informed and be ever ready to engage them to make them aware of what is expected.
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