We often hear elected officials, particularly members of the
Republican party, talking about how certain things, specifically
restoring gun rights, often requires an incremental approach. See
statement by Senate Judiciary Chair Mike Bell (3/2/21).
But, there is also evidence that the history of the Republican control
of the General Assembly starting in 2007 shows increasing infringements
on the rights protected by the Second Amendment rather than removal of
those infringements.
In 1989, Tennessee’s Legislature rewrote
much of the state’s criminal code. At that time, it rewrote Tennessee
Code Annotated § 39-17-1307. That statute is the one that makes it a
crime for anyone to carry a firearm anywhere in the state with the
intent to go armed. As of 1989, that statute read as follows:
(a)(1) A person commits an offense
who carries with the intent to go armed a firearm, a knife with a blade
length exceeding four inches (4″), or a club.
(2) An offense
under subdivision (a)(1) is a Class C misdemeanor, except it is a Class A
misdemeanor if the person’s carrying of a handgun occurred at a place
open to the public where one (1) or more persons were present.
(b)(1) A person commits an offense who possesses a handgun and:
(A) Has been convicted of a felony involving the use or attempted use of force, violence or a deadly weapon; or
(B) Has been convicted of a felony drug offense.
(2) An offense under subdivision (b)(1) is a Class E felony.
(c)(1)
A person commits an offense who possesses any deadly weapon with intent
to employ it in the commission of or escape from an offense.
(2) An offense under subdivision (c)(1) is a Class E felony.
There are significant things to note about the 1989 version of the
law. First, it was a $50 fine – a Class C misdemeanor – to carry a
firearm with the intent to go armed unless you were in a place open to
the public where 1 or more people were present and then it was a Class A
misdemeanor which carried a $2,500 fine and up to a 11 months, 29 days
in jail.
Second, if you had a prior violent felony or felony
drug offense, and you were possessing a handgun, then the offense was a
Class E felony. Notice that nonviolent felons had no state restriction
on possessing firearms or handguns, nor did those with misdemeanor
convictions under this statute. Notice also that at least under state
law, violent felons and those with felony drug convictions would possess
longarms.
The 1989 version of the law was enacted by Democrats
and remained on the books until 2007 when the Senate came under
Republican leadership and Lt. Governor Ron Ramsey attained control.
Now,
recall the concept of incrementalism that Republicans often raise when
asked about removing infringements on your rights? This is a list of
the laws that predominately Republicans have enacted since getting full
control of the House and Senate on just this statute:
2007 Pub.Acts, c. 412, § 1, eff. July 1, 2007
2007 Pub.Acts, c. 594, § 3, eff. Jan. 1, 2008
2008 Pub.Acts, c. 1166, § 1, eff. July 1, 2008
2008 Pub.Acts, c. 1176, § 1, eff. July 1, 2008
2009 Pub.Acts, c. 431, § 1, eff. June 12, 2009
2009 Pub.Acts, c. 455, § 6, eff. July 1, 2009
2010 Pub.Acts, c. 793, § 1, eff. July 1, 2010
2012 Pub.Acts, c. 726, § 1, eff. July 1, 2012
2014 Pub.Acts, c. 647, §§ 4, 5, eff. July 1, 2014
2014 Pub.Acts, c. 870, § 1, eff. July 1, 2014
2017 Pub.Acts, c. 202, § 1, eff. July 1, 2017
2017 Pub.Acts, c. 475, § 1, eff. July 1, 2017
2018 Pub.Acts, c. 903, §§ 2, 4, eff. July 1, 2018
2021 Pub.Acts, c. 108, §§ 1, 13, eff. July 1, 2021
Did these
Republican controlled Legislature's laws bring Tennessee closer to the 2nd
Amendment as it existed in 1791 as the United States Supreme Court has
held in 2022 is required? Generally, no. (See,
New York State Rifle and Pistol Association v. Bruen)
Generally, with the passage of these statutes, the Republican
controlled Legislature has added infringements on your rights as
protected by the Second Amendment rather than to remove them.
Here
is what Tennessee Code Annotated § 39-17-1307 looks like today after
16 years of Republican Legislative incrementalism (PDF from the official
state website):
Under Republican super majorities, those who campaigned as Second
Amendment supporters, things have gotten not just incrementally but
unconstitutionally worse. For example:
– The amount of the fine
for carrying with the intent to go armed went from $50 to at least $500
and that does not include statutory mandatory weapon’s forfeiture,
court costs, or legal fees.
– Violent felons and felony drug offenders were able to possess longarms as of 2007 but after that could not under state law.
– The penalty on violent felons and felony drug offenders were from a Class E felony to as high as a Class B felony.
–
Those with nonviolent felons as of 2008 could not possess handguns
under state law (which made them entirely prohibited under federal law)
and it was a Class E felony for them to do so.
– They passed a “vehicle transport” law in 2014 (which is arguably a step in the right direction under Bruen)
–
They passed provisions making it a crime for those with orders of
protection, misdemeanor domestic violence, and/or any violations of any
other state or federal law to possess a firearm.
– They made it a
crime for those with nonviolent stalking convictions (a misdemeanor)
to carry a firearm with the intent to go armed.
– They made it a
crime for those with 2 or more DUIs in the last 10 years or one or more
DUIs in the last 5 years to carry a firearm with the intent to go
armed.
– They made it a crime for anyone with “adjudicated as a
mental defective, judicially committed or hospitalized in a mental
institution…” to possess a firearm but, and its not clear, that crime
can be charged even if the person has been granted “relief of
disabilities” under the federal NICS improvement act.
It is
possible that some might take the position that some of these
restrictions are “reasonable” or even part of a good crime control
initiative, but unless these same restrictions existed in 1791 (and it
does not appear that they did) then according to the United States
Supreme Court these incremental infringements by the Republican
controlled Legislature since 2007 are likely unconstitutional.
So,
whenever you hear a Legislator talk about the Second Amendment or when
they discuss any constitutionally protected right in terms of
“incrementalism”, it is important to know that the Legislature in
Tennessee does not always engage in incremental movement towards
constitutional requirements. Sometimes, they are intentionally moving
further from it.
A more important question that needs to be
asked of the Legislators is “why?”. When it comes to a
constitutionally protected right, why do they think that incrementally
removing an infringement or parts of infringements is constitutionally
justified?
Doesn’t the incremental or partial removal of an
infringement still constitute legislative choices by those sworn to
protect and defend our rights still evidence a choice by them to
knowingly protect and preserve infringements that are in existence? How
can that be justified? Isn’t that simply a breach of their oath of
office? Should that not be looked upon by the people of Tennessee as
“official oppression” by those elected to represent us and who take
sworn oaths to do so in full compliance with the constitution?
