Mark Smith, a nationally known constitutional attorney and member of the Supreme Court bar who also has an extremely popular YouTube and social media presence, has picked up on the outrageous arguments that Governor Bill Lee and Attorney General Jonathan Skrmetti have made in their initial appellate brief in the Hughes v. Lee matter which they appealed from a unanimous trial court ruling that struck down Tennessee’s “intent to go armed” and “parks” statutes.
Mr. Smith has released a detailed analysis of the Tennessee Attorney General’s newly filed appellate brief in Hughes v. Lee — and his conclusion is blunt: the State’s legal argument is built on bad history, bad law, and bad faith.
In addition to whether Tennessee’s “intent to go armed” statute violates the constitutional rights of individuals, this case is also about whether Tennessee can ban ordinary citizens from carrying firearms in public parks, forests, greenways and other recreational venues without a license. The three-judge trial court already unanimously ruled that Tennessee’s ban violates both the Second Amendment and the Tennessee Constitution. Instead of respecting that ruling, the Governor Bill Lee and Attorney General Skrmetti are now trying to overturn it. And worse, they have the backing of some Republican Legislators!
The State Is Using the Wrong Century
Smith explains that Tennessee’s entire argument regarding the state’s parks ban depends on laws passed after the Civil War, including gun bans in places like:
- Central Park (New York)
- Yosemite
- Sequoia
- Yellowstone
- Memphis and Chattanooga parks
But the U.S. Supreme Court has repeatedly ruled that constitutional rights are defined by their public as part of a national historical tradition that existed in 1791 — not 1875, 1909 or even today.
Smith explains that at the time of the Founding:
- Boston Common was a public park where guns were common.
- Lexington Green and Concord Green were public parks where the American Revolution began — with armed citizens.
- Thomas Jefferson designed public parks and believed carrying firearms was part of ordinary life.
Smith notes that there were public parks at the Founding — and guns were allowed in them.
The State Is Distorting Supreme Court Precedent
Governor Lee and Attorney General Skrmetti claim that parks are “sensitive places” where guns can be banned. Smith explains that the Supreme Court already limited that category in Bruen (2022). Bruen indicates in dicta that the concept of sensitive places that existed in the relevant time may have included (the issue was not directly decided in Bruen) as:
- Courthouses
- Legislative chambers
- Polling places
Public parks were not included — and for good reason: history does not support banning firearms there.
The “Children” Argument Fails
The Governor and the Attorney General also claim guns can be banned because children are in parks. Smith explains why this is historically false. At the Founding, schools could restrict students because they were minors under parental authority. But there was never a tradition of banning guns carried by adults simply because children were nearby.
Children are everywhere — grocery stores, sidewalks, churches, and yes, parks. That has never meant the government can disarm the public.
Why This Matters
If Tennessee wins this appeal, it will could create a blueprint for banning firearms in many places where there was no national tradition of doing so in 1791 merely because, according to Lee and Skrmetti, children might be present. This would, according to them, potentially include:
- Parks
- Trails
- Greenways
- Public squares
- Any place officials claim is “for children”
This would gut the right to bear arms across Tennessee and even across the nation — even though our Constitution protects it. Indeed, it would potentially render moot the Second Amendment because all a state would have to argue is that the ban is appropriate because children might be present.
Bill Lee and Tennessee’s Attorney General are trying to use late-1800s park rules to erase Founding-era rights. That is exactly what the Supreme Court has said governments are not allowed to do.
This fight is far from over — and your support now matters more than ever. Further, this issue does not have to run its course over the next couple of years in the courts. All that has to happen is that the Republicans in the Tennessee Legislature need to have the spine to honor their oaths of office (and their promises to the voters) to vigorously protect the rights which the Second Amendment declares shall not be infringed.
Its an election year – get busy and force those legislators who are seeking re-election to take action NOW. They must and will make a choice. They will act to abide by the Second Amendment and repeal these statutes. Or, they will CHOOSE to ignore your rights, ignore the constitution, and listen Lame Duck Lee and leave these unconstitutional statutes on the books.
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