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January 9, 2023
Is “ignorance of the constitution” a valid excuse for government violations of the Second Amendment?
It has been a core principle of law in this country, under English
law and dating back to at least the times of the Romans that ignorance
of the law is no excuse. The legal maxim is sometimes referred to as “Ignorantia juris non excusat“.
On Tuesday, January 10, 2023, Tennessee’s legislators will be sworn
in to the One Hundred Thirteenth General Assembly. Each of those
legislators will take an oath of office. For legislators, the oath is
set forth in Article X, Section 2. It provides:
Each member of the Senate
and House of Representatives, shall before they proceed to business take
an oath or affirmation to support the Constitution of this state, and
of the United States and also the following oath: I______ do solemnly
swear (or affirm) that as a member of this General Assembly, I will, in
all appointments, vote without favor, affection, partiality, or
prejudice; and that I will not propose or assent to any bill, vote or
resolution, which shall appear to me injurious to the people, or 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. TN Constitution, Article X, Section 2
Indeed, the requirement that members of the Legislature take such an
oath has been a requirement since Tennessee first became a state. It
was found in the state’s constitution of 1796:
Section 2nd That each
member of the senate and house of representatives shall, before they
proceed to business, take an oath or affirmation to support the
constitution of this State, and also the following oath:
“I, A.B.,
do solemnly swear or affirm that, as a member of this general assembly,
I will in all appointments vote without favor, affection, partiality,
or prejudice, and that I will not propose or assent to any bill, vote,
or resolution which shall appear to me injurious to the people, or
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.’ Tennessee Constitution of 1796, Article 9, Section 2
In Tennessee, the requirement to take an oath of office applies to
anyone holding a public office – whether elected or appointed:
Every person 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. Tennessee Constitution, Article X Section 1
As Justice Thomas discussed in June 2022 when he wrote the majority opinion in New York State Rifle and Pistol Association v. Bruen
essentially said that if the right as protected by the Second Amendment
was not regulated as shown by a national historical tradition as of
1791 (or in some instances in 1876) then it probably can’t be regulated
constitutionally today. When viewed in light of the Second
Amendment particularly as that constitutional provision has been
discussed by the United States Supreme Court in Heller (2008), McDonald (2010) and now Bruen
(2022), there is little doubt that many existing Tennessee laws
including its permitting laws, its prohibitions on certain individuals
based on things like prior DUI convictions, and its overwhelming gun
free zones fail to have any link to any national historical tradition
that would render them even arguably constitutional. Laws such
as the 2021 permitless carry law were likely unconstitutional on their
face when proposed. Others, which have been on the books for decades if
not centuries, are unconstitutional but calls to repeal them have been
ignored. The legal maxium of “ignorance of the law” can easily
been restated as “ignorance of the constitution is no excuse” when it
comes to asking former and also newly elected legislative officials why
they continue to tolerate the existence of unconstitutional
infringements on the rights protected by the 2nd Amendment from any
governmental infringements.
So if its not ignorance, is it political correctness? Is it an
unwillingness to stand up to the administration? Is it fear of the news
media? Is it a willingness to violate our constitutionally protected
civil rights until the Supreme Court specifically rules on each statute?
Or is it simply good ol’ “King George” tyranny? |
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