The Supreme Court of the United States incorporated the 2nd Amendment against the states through the due process clause of the 14th Amendment in the McDonald v. City of Chicago case in 2010. The Tennessee General Assembly, as a whole, has never recognized that the 2nd was made a Civil Right by that action. Let us look at the results of that failure.
The Supreme Court of the United States has mandated the method for which all issues related to the 2nd Amendment are to be viewed. Text, then history, in that order.
This was put forth in Heller in 2008, reiterated in 2010 in McDonald and once again in Bruen in 2022. Links to these cases are included in the description below, I suggest reading them in their entirety.
Bruen specifies the test mandated is that IF the Second Amendment’s plain text covers a person’s conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.” If an issue before any court implicates the 2nd Amendment, immediately the burden shifts to the government to prove any infringement it has, or may place on the right to keep and bear arms must be justified by historical tradition. If no similar infringement can be found in the time period from 1791 till after the ratification of the 14th Amendment, it is invalid, unconstitutional and void.
Listing the types of weapons the Second Amendment protects, Bruen echoes Heller, McDonald, Caetano, and the Miller case from 1939 (Heller specifically grasp the point of Miller when it says quote”This holding [of Miller] is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms that ‘have some reasonable relationship to the preservation or efficiency of a well regulated militia” close quote and Heller from Blackstone, “the Second Amendment protects the possession and carrying of weapons that are ‘in common use at the time.’ Heller further says “The conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty.”
From the recent case James Miller v. Bonta (not to be confused with the 1939 case) in the United States District Court, Southern District of California, citing Buren, the Hon. Roger T. Benitez presiding, he says
“Americans have an individual right to keep and bear firearms. The Second Amendment to the United States Constitution “guarantee[s] the individual right to possess and carry weapons in case of confrontation.”… “And the guarantee protects “the possession of weapons that are ‘in common use, or arms that are “typically possessed by law-abiding citizens for lawful purposes.”…The American tradition is rich and deep in protecting a citizen’s enduring right to keep and bear common arms like rifles, shotguns, and pistols. The “assault weapon” prohibition has NO historical pedigree, and it is extreme.”
Quoting Judge Benitez further; “Americans today own 24.4 million modern rifles (AR-15 types) 61% of AR 15 owners said when polled one reason they acquired their gun was for home defense. Heller quoted Blackstone saying “Self Defense it the true palladium of Liberty”. From the 2021 National Firearms Survey, it is noted that firearms are needed defensively approximately 1.67 million times a year. The Centers for Disease Control and Prevention in 2013 estimated there to be between 500 thousand and 3 million defensive firearms uses per year in the US. Judge Benitez says; “Guns for self-defense are needed a lot because crime happens a lot.”
The United States Department of Justice reports that in the year 2021, in the entire country 447 people were killed with rifles (of all types). With a population of 320 million people in the United States, rifles of any kind (including AR-15s) were used in homicides less than .01% of the time, meaning 99.99% of AR-15s were used for lawful purposes.
Bruen makes clear that, “To justify its regulation, the government may not simply posit that the regulation promotes an important interest”.
Tennessee being government, must show historical tradition to allow its infringements.
In the previously mentioned in the Caetano Supreme Court case from 2016, which resulted in a per curium opinion, (meaning there was little or no opposition to the ruling in the entire court), it was held “If Heller tells us anything, it is that firearms cannot be categorically prohibited just because they are dangerous.” The issue before the court was whether to allow the use of stun guns, and because 200,000 units were in use at the time, the court ruled them to be lawful. That number is a benchmark then for “common use”. If there are 24.4 million AR type rifles in the hands of the general public, that certainly is past the “common use” threshold.
The test that must be applied is dangerous AND unusual, not simply dangerous.
Heller specifically says the firearms that are protected by the 2nd are firearms “that are not dangerous AND unusual, and typically possessed by law abiding citizens for lawful purposes like self-defense.”
Legislators who recite only portions of SCOTUS rulings SHOULD read the whole paragraphs in their speeches. Cherry picking selected portions of text without giving the full implication is dishonest. Modern sporting rifles could just as well be called “home defense rifles” or “anti-crime guns.”
Tennessee is the ONLY state to enact a complete ban on the carry of all firearms in the period from 1791 to the early 1870s. Some states said you could not carry a firearm concealed, none but Tennessee made it a crime to carry any at all.
No other state denied its citizens that right, which per Heller, preexisted the founding of this Republic. These laws are still on our books today in Tennessee. There ARE defenses against prosecution, exceptions and exemptions, BUT, the crime of carrying a loaded firearm with the intent to go armed in case of confrontation is still codified here.
The General Assembly and every person who receives a check from the taxpayer takes an oath to support the Constitution of this State, and of the United States, and since the Supreme Court of the US has placed the same chains on Tennessee that surround the Federal Government, “the right to keep and bear arms shall not be infringed” every one of them is held to that. It is time the legislators honor their oath and remove the unconstitutional strictures placed on the People by this state.
Quote for the day, from Miranda v. State, “When rights secured by the Constitution are involved, there can be NO rule making or legislation that would abrogate them.”
C. Richard Archie
West TN Director and Board Member
Tennessee Firearms Association
https://tinyurl.com/Heller-2008
https://tinyurl.com/McDonald-2010