On April 23, 2023, the Tennessee Legislature passed Senate Bill 1325 / House Bill 1202 that was carried by Senator Paul Bailey and Representative Ryan Williams. The legislation would authorize under very limited circumstances a “person employed by an [sic] LEA [Local Education Agency] to possess and carry a concealed handgun on the grounds of the school to which the person is assigned”. The legislation would also authorize other individuals who are active or retired law enforcement to do similarly if they are “assigned” to the school although such individuals would be eligible to carry any “firearm.” [Note: The legislative history reflects 6 proposed Senate Amendments and 16 proposed House amendments. It appears that Senate Amendment 3 is the only one that was passed]
The legislation has been widely reported upon by various news media and has been the subject a letter campaign by a “Covenant mom” and students opposing the legislation. Yet, the Legislation passed primarily along party lines but with a handful of Republicans voting “no” with Democrats and progressives. The legislation now moves to Governor Lee’s desk where some may wonder whether his apparent close ties to Covenant School/Church may result in his veto. We will know by June 1 whether this legislation becomes law.
First, it is important to understand that this is not pro Second Amendment legislation. It does not address the rights of all citizens that are protected by the Second Amendment. Instead, it is written more as if it were a proposal to create a means for a very limited category of individuals to qualify to carry a handgun (or in some instances a firearm) on school property (or portions of it) at their own expense but only with the consent of certain other government officials which consent is not made subject to any objective standards but apparently can be entirely at the whim of those government officials.
Second, it is clear that this new proposal does apply to private schools. Private schools have had authority under Tennessee law (TCA 49-50-803) since at least 2016 to enact written “firearms “handgun carry” policies for their schools. Those policies could address handgun carry, including open carry, by faculty, staff, volunteers, parents, visitors, on duty law enforcement, retire law enforcement and conceivably anyone who could obtain the Tennessee enhanced handgun carry permit. Interestingly, however, private schools are prohibited from allowing individuals, such as non-residents who may work for the school, to participate in the school’s “handgun carry” permit because the law requires that the authorized individuals have the Tennessee enhanced permit.
The 2024 legislation creates three categories of individuals with respect to the covered public schools:
– civilians including parents, volunteers, etc., affiliated with the school who are not covered by the legislation are excluded;
– individuals employed by the local education agency (public schools) as “faculty or staff”; and
– individuals who are active or retired law enforcement who are “assigned” to the school under a memorandum of understanding.
With respect to the two categories of individuals who could theoretically be authorized to carry a concealed handgun (or in one instance any firearm) on school grounds, the two categories are treated very differently.
With respect to individuals employed as “faculty or staff” by the local education agency, those individuals can only possess a concealed handgun. They must have a Tennessee enhanced handgun permit and thus must also be a Tennessee resident. The individual must have the written authorization of the “LEA’s director of schools”, the principal of the school where the individual is “assigned” and the written authorization of the chief law enforcement officer of the “appropriate” law enforcement agency. The person must submit 2 sets of fingerprints to the law enforcement agency to be used in a background check by the TBI, one of which fingerprint sets are to be provided to the FBI. The individual must submit to a psychiatric exam by a Tennessee licensed healthcare provider as a psychiatrist or psychologist who is under contract with the law enforcement agency which health care provider must the individual is “free from any impairment … that would, in the professional judgment of the examiner, affect the faculty or staff member’s ability to safely possess and carry a concealed handgun on the grounds of a school.” The individual must complete 40 hours of “basic training in school policing” prior to the time that the authorization to carry on school grounds is issued and must complete a minimum of 40 hours of POST certified training in school policing each year to maintain approval. The costs of the training, the firearm, the ammunition and presumably the time off to obtain the training are all at the expense of the individual.
Now, contrast that with the requirements of an individual who is an active or retired law enforcement official. This category of individuals must also have the Tennessee enhanced handgun permit but they can carry any “firearm” – not just a concealed handgun. The must have the written approval of the LEA’s director of schools and the school principal but nothing is expressly stated (particularly with respect to retired individuals) about requiring the written approval of the chief law enforcement officer. These individuals have to have completed forty hours of “basic training in school policing” but nothing is said about whether it has to be completed before or after the authorization is issued. No annual training or other recertification is required. The individual is to bear all costs of the training, firearm and ammunition but it is not clear how an “active duty” law enforcement officer is going to be required to bear these costs independent of the firearms, ammunition and training that their agencies otherwise provide.
Another area of difference between “faculty and staff” and the law enforcement categories pertains to the locations on the school grounds where the individual (the faculty or staff category) would commit a felony if they carried the handgun. The faculty or staff category of individuals are prohibited from carrying (and felony charges could apparently be brought) in the following locations even if they are authorized to carry on the school grounds:
(A) Stadiums, gymnasiums, or auditoriums when school-sponsored events are in progress;
(B) In meetings regarding disciplinary matters;
(C) In meetings regarding tenure issues;
(D) In a hospital, clinic, or office where medical or mental health services are the primary services provided; and
(E) Any location where a provision of state or federal law, except for § 39-17-1309 and the posting provisions of § 39-17-1359, prohibits the carrying of a firearm on that property.
However, the prohibited zones listed in the legislation that apply to the faculty and staff category, and that create potential grounds for felony charges if violated, do not apply to those individuals in the active or retired law enforcement categories.
Further, while those in the faculty or staff category as well as those in the law enforcement category who might be authorized to carry “on the grounds of the school at which the person is assigned”, the legislation does not address school buses, carpools, field trips, trips to other schools for intra-school events, etc. Presumably, those who might be authorized to carry a concealed handgun or firearm, depending on the category, if they jump through all the of the hurdles “on the grounds” of the school, are left without any clear guidance concerning whether they are authorized, if at all, “off the grounds” of the school but while still functioning as a school employee. So, for example, would an employed coach or retired officer be allowed to travel armed away from school with a sports team to practice or play games at other venues?
It is also possible that some individuals who might be employed as faculty or staff may also be either active (e.g., reserve officer?) or retired law enforcement. In that instance, it is not clear from the statute which category the individual would be placed or if perhaps the choice is up to the individual, the LEA administrator, the principal, the chief law enforcement officer or if all 4 might have to concur.
Given the structure of the 2024 law, it is not designed to actually encourage or allow those faculty and staff members who are interested or willing to carry a concealed handgun for self-defense or even “common defense” on school grounds to do so. The 2024 law may and likely does simply create too many hurdles for those individuals including the costs of compliance and the exposure to felony charges if they are in the prohibited areas.
Will this law, if not vetoed, potentially increase the number of individuals who ultimately are authorized to carry a handgun (or for some a firearm) on school grounds? Perhaps. Will it do so at levels that create true deterrent effects? Perhaps not. Will it do so at levels that could effectively reduce or eliminate the number of deaths or injuries at a future school attack? Perhaps not. Will it save lives? Perhaps not. However, it is likely better to provide for armed faculty and staff, even if only one more participates, in the hope that doing so might save even one life or averts only one mass shooting.
Tennessee Firearms Association does not classify this legislation as pro Second Amendment. The law does nothing to remove the infringements on the rights of all Tennesseans which rights are protected by the Second Amendment. The law does nothing, in the context of the United States Supreme Court’s decision in Bruen, to restore the state of the law in Tennessee to the national historical traditions that existed in 1791.