The Second Amendment was intended to and its primary purpose is to prohibit the government from infringing or limiting access by civilians to arms that are suitable, necessary and/or appropriate to military engagement. 

That purpose is made clear by the Amendment’s preamble which declares that the security of a free state is dependent upon a citizenry that is both well trained for military service and by implication well armed with weapons of war.  Being well trained and well armed includes having access to arms necessary and appropriate to defeat any opposing  military forces including those under the command and control of not only an invading government but our own government.  Guaranteeing access to only other categories arms (e.g., “sporting purposes” or “self-defense”) or arms that only existed two or more centuries ago cannot be reconciled with the Amendment’s purpose or preamble.

The Tennessee Supreme Court noted the military purpose of the constitutional guarantee and that the category of arms protected to civilian ownership include those specifically of military use and purpose.   Thus, the Court said in 1840 in Aymette v. State, 21 Tenn. 154 (1840):

Similarly, the United States Department of Justice filed a brief with the United States Supreme Court in 1939 in the Miller litigation in which it cited the Tennessee Supreme Court’s Aymette opinion as well as the Tennessee Supreme Court’s subsequent decision in Andrews when it stated to the United States Supreme Court that the Second Amendment clearly protected military grade weapons to civilian ownership:

Thus, it is beyond dispute that the courts and the federal government agreed – at least through 1939 – that the Second Amendment’s protection included specifically those categories of arms that are appropriate to modern warfare.  Per the Supreme Court in Bruen nothing that has occurred since 1791 and certainly nothing that has occurred since 1939 impacts the scope of the Second Amendment’s protections.

Later Supreme Court cases, including Heller, McDonald and Bruen also establish that the categories of arms protected by the Second Amendment also include those suitable for self-defense.  These cases did not, however, exclude those arms of modern military use because that specific issue has not been a contested issue for the Court to address.  Thus the modern rifle, the handgun and the shotgun, even if not used by the military, are constitutionally protected in addition to those that are suitable for military use.

The Bruen court stated that the test for determining the scope of the constitutional protection and, inversely, the zone within which government restrictions might be constitutional involves the question of what constituted the nation’s historical tradition as of 1791 when the states ratified the Bill of Rights.  Of course, as of 1791, the nation’s historical tradition imposed as a practical matter no restrictions on the categories or types of arms that an individual (or even a group of individuals) could own.  Certainly, rifles, shotguns and handguns of every category were made and owned by civilians with no national historical tradition of prohibitions.   The battles of Lexington and Concord are historical examples of the private ownership of cannons, powder and anti-personnel projectiles. Indeed, even warships were in some instances privately owned (see, e.g., U.S. Constitution Article 1, Section 8 – “ Letters of Marque and Reprisal” which presumed the private ownership of marine vessels suitable and outfitted for war).  While the constitutional use of the term “arms” might not include a warship, it would be difficult to comprehend the existence of a historical tradition barring semi or even full automatic firearms while the nation permitted civilians to own cannon and warships.

Indeed, there is some reference even by the Supreme Court to whether “dangerous and unusual” weapons are protected by the Second Amendment to civilian ownership.  However, that term is not clearly defined nor applied.  More importantly, that phrase arose in relatively recent pre-Bruen cases as dicta.   It is submitted that post-Bruen a subjective determination of what might be “dangerous and unusual,” should that phrase even survive Bruen, will require the application of Bruen’s national historical tradition test to identify those categories of weapons that were so dangerous and so unusual that most states as of 1791 banned civilian ownership of those categories of weapons.   Certainly, not every weapon that is capable of death or suitable for military use could be classified as both “dangerous” and “unusual” when the very purpose of the constitutional protection is precisely to protect ownership of whatever categories of arms are suitable for modern military use.

Yet, in the debate over the Second Amendment it is not uncommon for the gun control proponents, including some legislators, to assert that existing or proposed laws which impose limits on the free exercise of the rights that are protected by the Second Amendment are “reasonable”, that they are “common sense” and/or that they advance “public safety” or “crime control.”   Some of these gun control advocates, like the Tennessee Department of Safety, further assert that certain categories of arms are not suitable or necessary for individual ownership or public possession.

The Founding Fathers and, more importantly, the ratifying states, having just taken up military weapons to defeat their longstanding government, intentionally provided in the governing documents that they were drafting and adopting for the nation that they were forming for the specific capacity of the people to have sufficient access to military grade weapons specifically for the purpose to make sure that, should the need to defeat their OWN government arise again, the people would have sufficient military grade weapons to be able to do so no matter how large or well-armed the government’s military forces may be. 

The ratifying states expressly intended that level of massive capacity for lethal force to be preserved in the hands of the civilians. To do otherwise would shackle the citizens should the need ever arise thereafter to again displace an existing government, by military force if necessary, in order to provide for the security of a free republic.

The ratifying states specifically intended that the people would have the ability and means to completely defeat the federal government and the states themselves as a guard against future tyranny and as a means of preserving the ultimate right of government in the people.

For anyone, including Tennessee’s government officials of today, including Bill Lee, the Tennessee Bureau of Investigation, the Tennessee Department of Safety, some law enforcement and a significant number of legislators to even suggest that Tennesseans have no “need” for certain arms or no need for military grade weapons is nothing short of a position of tyranny.  It is an opinion uninformed by history and tradition.  It is an opinion ignorant of the purposes of the Second Amendment.   It is a position to accomplish one goal – to shackle the citizens and deprive the citizens of access to arms that are of such a nature that they are constitutionally declared to be appropriate and necessary to defeat the government’s own military and law enforcement forces if necessary.

The failure to repeal all laws in Tennessee that have any measure of infringement under the Second  Amendment is not a matter of “public safety” or “reasonable” regulation, for those are grounds that Bruen clearly says are irrelevant and unconstitutional considerations.   No, the failure to repeal these laws is a choice made from emotion, incompetence or the perspective of tyranny.  Those state officials and those legislators who have worked and conspired over the last 2, 4, 6, 8, 10 or more years or decades to deprive and deny Tennesseans of the full spectrum of rights guaranteed by the Second Amendment should be discharged from office and removed from positions of power, authority or even relevant opinion.

As we enter upon another state election cycle, make inquiry of where your House and Senate members have been on the battle to repeal the unconstitutional provisions of Tennessee's laws, regulations and ordinances.  Ask them "What have you done to unshackle my rights?"   If they have not been a leader on these issues, perhaps you may consider replacing them because they may not be strong in defense of other constitutional rights either.  If they have been, as many have, roadblocks to efforts to unshackle our rights (such as moving forward the constitutional amendment to a public vote), then they certainly should be considered for replacement.   But, if they have been fighting in many instances their own party and party leadership to try and restore and protect your rights, lend them your time and your support because with the failures we have seen under the Legislative Leadership that we now have, there are not enough true constitutional stewards in the Legislature to get the job done.