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Tennessee Fails to Honor the 2nd Amendment

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Mountains of Tennessee

Tennesseans have suffered a long-standing history of abuses by its state government with respect to their 2nd Amendment rights, committed by the General Assembly, the Office of Governor, some Judges, and the manifold, unelected bureaucrats that pervade the government and control our very lives. Each and every one of them “who shall be chosen or appointed to any office of trust or profit under this Constitution, or any law made in pursuance thereof, shall, before entering on the duties thereof, take an oath to support the Constitution of this State, and of the United States, and an oath of office.” but mouthing the words does not necessitate them “walking the walk.”

Our original Declaration of Rights from 1796 begins with the premise in Article 1 that “All Power is inherent in the People” and builds on that in Article 2 that “non-resistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind.” Article 11 Section 16 says all the enumerated rights are “declared to be a part of the Constitution of this State, and shall never be violated on any pretense whatever.” These rights are supposed to never be taken from the People, per that same article “excepted out of the General powers of government, and shall forever remain inviolate” yet it appears to be the business of the state to wrest as many liberties as possible from their hands as possible.

Our original 2nd Amendment analogue (I use the term analogue because that is how the Supreme Court references an article in a state Constitution that is likened to one in our federal rules) stated in 1796 in Article 11 Section 26, “That the free men of this State have a right to keep and to bear arms for their common defence.” The General Assembly proceeded to violate their oath which they promise to God to “consent to any act or thing whatever that shall have a tendency to lessen or abridge their rights and privileges, as declared by the Constitution of this State” by passing a statute that makes carrying a handgun a crime a scant 5 years later in 1801.1

That analogue was bastardized in 1870 to a form that gave “power, by law, to regulate the wearing of arms with a view to prevent crime”2 to the legislature. This was done to limit the ability of the freed slaves to bear arms for their protection, a Jim Crow insert that is racist and unconstitutional. In 2010, SCOTUS ruled in McDonald V. City of Chicago that the 2nd Amendment was incorporated against the States through the due process clause of the 14th Amendment, which in fact renders our current Article 1 Section 26 moot and unenforceable.

In 2022 the Supreme Court of the United States ruled in New York State Rifle and Pistol Association v. Bruen decision that if an individual’s conduct references the 2nd Amendment text, then the burden shifts instantly to government to prove its regulation is consistent with “historical tradition” of regulations that existed in 1791.3

The Heller Court in 2008 references the Andrews v. State Tennessee Supreme Court case from 1871 which opined that the laws which forbad carrying firearms” violated the state Constitutional provision.”4 (there was never a law in Tennessee criminalizing the carry of long guns from 1796 until 1989)

No session of the General Assembly since 1801 has taken that ruling into account and removed the unconstitutional burden on the People’s right to keep bear and wear arms. To the contrary it is still a crime to carry a loaded firearm of any kind on your person even with the permits, license or the “so called” Constitutional Carry as passed by our legislature in 2021. They are defenses ONLY against prosecution of a crime that remains to this day on our books.5

The most recent Supreme Court ruling, Garland v. Cargill, once again reiterates the point that the text is what rules in a 2nd Amendment issue, “As always, we start with the statutory text” Garland v. Cargill, No. 22-976, 11 (U.S. Jun. 14, 2024), those who take money from the public treasury in Tennessee are honor bound to observe their oaths and the requirement of the US Constitution, it is time to remove the “intent to go armed” unconstitutional infringement on the People.

There was an attempt to give the People a chance to comply via a ballot initiative with the true intent of the Founders regarding the 2nd Amendment rights of Tennesseans, HJR 038/SJR 904 which would have put the issue to a vote in 2026, that resolution would have removed the Jim Crow provision giving unconstitutional power to the GA to sit athwart the unambiguous right to keep, bear and wear arms. It passed the Senate with every Republican voting for it and was killed out of hand by the House. There were more House co-sponsors who signed onto the resolution than it takes to pass, but it was “taken off notice” by the “powers that be” to once again put their foot on the neck of your 2nd Amendment rights. Demand better of your elected employees.

1 Carrying Weapons: 1801
An Act for the Restraint of Idle and Disorderly Persons § 6. Be it enacted, That if any person shall publicly ride or go armed to the terror of the people, or privately carry any dirk, large knife, pistol or any other dangerous weapon, to the fear or terror of any person, it shall be the duty of any judge or justice, on his own view, or upon the information of any other person on oath, to bind such person or persons to their good behavior, and if he or they fail to find securities, commit him or them to jail, and if such person or persons continue to offend, he or they shall not only forfeit their recognizance, but be liable to an indictment, and be punished as for a breach of the peace, or riot at common law.

2 Article 1 Section 26. 1870
That the citizens of this State have a right to keep and to bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime.

3 In keeping with Heller, we hold 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.” Konigsberg v. State Bar of Cal.,366 U.S. 36, 50, n. 10 (1961). New York State Rifle & Pistol Assn., Inc. v. Bruen, No. 20-843, 14 (U.S. Jun. 23, 2022)

4 In Andrews v. State, the Tennessee Supreme Court likewise held that a statute that forbade openly carrying a pistol “publicly or privately, without regard to time or place, or circumstances,” 50 Tenn., at 187 (1871), violated the state Constitutional provision (which the court equated with the Second Amendment). That was so even though the statute did not restrict the carrying of long guns. – District of Columbia et al. v. Heller, 554 U.S. 570, 629 (2008)

5 TCA 39-17-1307. Unlawful carrying or possession of a weapon. (a)(1) A person commits an offense who carries, with the intent to go armed, a firearm or a club.

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