First, let us define the term “constitutional carry”. Constitutional
carry means the full and free exercise of the right that is recognized
and protected by the Second Amendment. It means that anyone who can
legally possess a firearm can carry it.
One of Bill Lee’s initial statements as a candidate
was that he did not support constitutional carry. He thought we needed
a permit system, background checks and “safety requirements”. He felt
that the state simply should not charge a fee for the permit. It was a
surprise when 2 years later he announced
that he was filing, as governor, a constitutional carry bill. Now
that it has been enacted, it is clear that he did not support nor did he
want real
constitutional carry. He wanted to preserve the criminal charge of
“carrying with intent to go armed” and he wanted to have a lot of
qualifiers on the exception to that criminal charge.
In March 2021, the Legislature passed the governor’s bill (House Bill 786 / Senate Bill 765). Assuming it becomes law, it goes into effect July 1, 2021.
The
Governor’s new law is not real constitutional carry. It does include a
provision that allows some citizens under certain circumstances and in
some locations to carry a handgun without a permit. Therefore,
Governor’s new law is a form of permitless carry.
So what does the Governor’s new law do and what doesn’t it do?
To
start, it is important to note that the Governor’s law does not repeal
the existing provision found in TCA § 39-17-1307(a) which makes it a
crime to carry a firearm, any firearm, with the intent to go armed.
That crime remains in effect. The Governor’s bill creates a new
subsection, “(g)”, which lists certain conditions that give rise to an
“exception” to that criminal charge.
The creation of an
“exception” means that you have to satisfy each one of the conditions in
order to avoid being charged with the crime. It may mean that a law
enforcement officer may be able to stop and detain a person who is
observed carrying a handgun, which remains a crime, in order to
determine if the person satisfies each of the exceptions to the criminal
charge.
What are these exceptions that must be satisfied in
order to avoid being charged with carrying a handgun with the intent to
go armed? - The person must be at least 21 years old (or for those in the
military or honorably discharged from the military, at least 18 years
old);
- The person must “lawfully” possess a “handgun” (you cannot
carry a rifle, shotgun or a handgun with a barrel of 12 inches or more,
see TCA § 39-11-106(a)(18), under the Governor’s bill);
- The person must be “in a place where the person is lawfully present”
- The person has never been convicted of the misdemeanor crime of stalking under TCA § 39-17-315
- The person has not had one or more DUI’s in the last 5 years;
- The person has not had two or more DUI’s in the last 10 years;
- The
person has never been “adjudicated as a mental defective, judicially
committed to or hospitalized in a mental institution pursuant to title
33, or had a court appoint a conservator for the person by reason of a
mental defect”;
- The person is not otherwise prohibited from possessing a firearm by 18 USC § 922(g) as it existed on January 1, 2021.
The Governor’s bill expressly allows both open and concealed carry of
a handgun if all of the other conditions are met. Tennessee law
defines a handgun as having a barrel length of less than 12 inches in
TCA § 39-11-106(a)(18) so not all handguns, as defined by most people
and federal law, are covered by the Governor’s bill.
The
Governor’s bill amended TCA § 39-17-1313 to allow individuals who meet
all of the exceptions listed above to store a handgun that they legally
possess in their vehicle while it is parked in a location that they are
allowed to park.
The Governor’s bill also amended parts of TCA §§
39-17-1351 (regarding the “enhanced permits”) and 39-17-1366 (regarding
the concealed only permits) by eliminating the necessity that permit
holders have their permits in their immediate possession – unless they are in places where a permit remains an exception or a defense to a criminal charge
(there are several of these). What this means is that those who have
the state permits (or permits from other states that are recognized by
Tennessee) are allowed to go in some places, like public parks and
greenways, where those who are relying on the Governor’s permitless
carry bill could be criminally charged if they went into those same
areas.
The Governor’s bill did not eliminate Tennessee’s two
handgun permitting systems nor did it change or reduce the fee structure
for those systems. Because of the Governor’s decision not to address
in his bill prohibited locations, such as public parks, greenways and
other situations where a permit is required to establish a defense or an
exception to a criminal charge, the permit may be a practical necessity
even still for those who desire to carry a handgun. Further, there may
be circumstances such as the Governor’s bill’s language on the DUIs
where an individual may be eligible for a handgun permit in Tennessee or
another state but would not be eligible to rely on the Governor’s
permitless carry language in this law.
It is also important to
understand that the concept of “reciprocity” is generally a doctrine
between and among states based on the issuance of some type of license
or permit. The Governor’s bill, at this point, has nothing to do with
permits in that regard. For most people, if you want to be able to
carry in the maximum number of other states you are likely going to need
to get the Tennessee enhanced permit.
Some
may wonder if they need to renew their existing Tennessee permits.
Generally, the answer is yes. At present, those are necessary to
minimize the risks of criminal charges from carrying in places like
public parks and they are the best mechanism for obtaining the ability
to carry in the largest number of other states. You could decide to not
renew a permit but with these omissions in the Governor’s bill why do
that and take the risk?
What lies ahead?
The
Governor’s bill is clearly not true constitutional carry. Several
ranking legislators are already on record with that statement. True
constitutional carry would recognize the full scope of the right that is
protected by the 2nd Amendment and it would eliminate state and local
infringements on that right. That is not what this bill does. As Senator Kerry Roberts said in his comments in Senate Judiciary, this bill leaves much more work to be done unfortunately.
At
present, it is unclear which if any states would recognize someone
carrying pursuant to the Governor’s bill as legally carrying in the
other state. Frankly, the Governor’s bill may not improve that
situation and it may make it worse if the other state’s
law looks to the issue of whether the person can legally carry in his or
her “home” state. What we may find is that the states which already
allow some form of permitless or open carry may also allow non-residents
to carry in those states without a permit. So, although it could make
the situation worse, the Governor’s bill likely does not increase the
number of states where permitless carry by Tennessee residents will be
allowed.
The bill is also ripe for litigation and future changes. For example, one national organization, the Firearms Policy Coalition is already searching for individuals to challenge the 21 and up standard that allows some but not all 18-20 year olds to carry a handgun.
Other areas of potential problems or litigation include: - Whether the phrase “lawfully present” is unconstitutionally vague.
- Whether the stalking restriction is a lifetime ban.
- Whether the stalking restriction can be removed based on a restoration of rights order, expungement or pardon.
- Whether the stalking restriction fails under an “as applied” constitutional challenge.
- Whether the DUI provisions fail under a constitutional challenge.
- Whether
the mental health restrictions violate the 2008 NICS Improvement Act
and, if so, whether it will result in loss of federal grant money for
mental health treatment programs.
- Whether the mental health
restrictions are removed if a person successfully completes one of
Tennessee’s several relief of disabilities statutes that were enacted
under the 2008 NICS Improvement Act.
- Whether a law enforcement
officer can stop a person who is carrying a handgun for purposes of
performing a check to determine if they meet all of the exceptions
required by the language of the Governor’s bill.
- Whether a
person carrying under the Governor’s bill in a place that continues to
require a permit as an exception or defense, such as a public park or
greenway, can be criminally charged both with being armed in a park as
well as a second charge for carrying with intent to go armed.
Tennessee Firearms Association recognizes that there may be some
people who can rely on the Governor’s bill and carry a handgun in some
locations who will benefit from this bill. Real constitutional carry
is the goal and the goal is defined by the very language of the Second
Amendment itself. This Governor, this Legislature and this bill does
not score that goal.
TFA Website for this report
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