TFA’S ANALYSIS OF GOVERNOR BILL LEE’S PERMITLESS CARRY LAW – AND WHY TO AVOID IT
The Tennessee Firearms Association recommends that people get or keep the Tennessee enhanced handgun permit rather than relying on the Governor’s new permitless carry bill that goes into effect on July 1, 2021. Here are the details underlying that advice.
On February 27, 2020, Governor Bill Lee took the podium at the Tennessee capitol and announced that he was filing a a bill to implement constitutional carry in Tennessee. Governor Lee stated that “The Second Amendment is clear and concise and secures the freedoms of law-abiding citizens to keep and bear arms … I am pleased to announce Constitutional Carry legislation today that will protect the Second Amendment rights of Tennesseans….” Many legislators stood approvingly with the Governor during that announcement.
At the time of the announcement, the TFA was cautiously excited to hear that the Governor was going to introduce legislation to implement constitutional carry particularly since the Republican controlled Legislature had indicated no prior interest in doing so. However, the actual language of the Governor’s bill was not publicly available at that time of his public announcement. It was important to see the details of what the Governor was actually proposing.
When the language of the Governor’s 2020 bill became available, it was clear that the bill was not true constitutional carry. By mid-March, the Covid shutdowns started and the bill did not move forward in 2020. The legislation was refiled in 2021 again as one of Governor Lee’s “administration” bills. (SB765/HB786) It took much the same form as in 2020 and both TFA and two national gun rights organizations called for amendments to the permitless carry proposal. It was enacted into law, without necessary amendments, as Public Chapter 108. The new law goes into effect on July 1, 2021.
Is Governor Lee’s new law REAL Constitutional Carry or something far less?
Before examining the details of Governor Lee’s hallmark 2nd Amendment law, it is important to define what the term “constitutional carry” means. For TFA, real constitutional carry means that any individual who can legally possess a firearm has the constitutionally protected right to carry that firearm on substantially all publicly owned properties without any government infringement. Its is that simple because it is what the 2nd Amendment clearly prohibits – government infringement of the right of the “people” – all of the people – to keep and bear “arms”. Based on the 2nd Amendment’s reference to the militia, it is clear that the right protected by the 2nd Amendment at a minimum includes anyone and everyone who is subject to the state’s militia call which includes at least those 18 and up. Based on the 2nd Amendment’s reference to the term “arms” rather than handguns, the right extends to all arms within the scope of the 2nd Amendment and not just those deemed worthy or unoffensive by the Governor and his Legislative supporters.
Governor Lee’s law is not real constitutional carry. It simply does not fit the definition. It perpetuates and creates new infringements on the constitutionally protected right of citizens. It is another statutory exception to a criminal charge under Tenn. Code Annotated § 39-17-1307(a) for carrying a firearm with the intent to go armed. It does not apply to everyone who can legally possess a firearm. It infringes the right, even for those who do fit within its conditions, by further limiting its application to handguns only. It is only a qualified exception to an existing criminal charge that itself infringes the right that the 2nd Amendment declares is beyond the control or authority of government.
Several Legislators stated that the Governor’s law is not real constitutional carry.
Several legislators who voted for this law nevertheless made statements supporting the conclusion that it is not real constitutional carry. On March 2, 2021 in the Senate Judiciary hearings, Senate Judiciary Chairman Senator Mike Bell made comments which noted that the bill was a “permitless carry” bill that was not everything that he may have wanted but that it did move the “ball further down the field”. He observed that and that the Legislature “… may come back to see how this works in a couple of years and come back and make some changes.”
Senator Kerry Roberts also made comments during the same Senate Judiciary hearing which indicated that he did not believe the Governor’s bill was real constitutional carry. Instead, he described it as an incremental step in the direction of real constitutional carry.
On March 10, Rep. William Lamberth presented the bill to the House Criminal Justice Committee. In response to questions from Rep. Hardaway regarding whether the bill covered all firearms or only some firearms, Rep. Lamberth responded that the bill only covered handguns. He continued on regarding the bill’s limited scope by explaining to Rep. Hardaway that “there is not a distinction [between handguns and longarms] in the Second Amendment, there is a distinction in this particular bill, and this is the biggest bite of freedom we can get in one chunk”.
On March 15, Speaker Cameron Sexton was interviewed by Brian Wilson, a host on 99.7 FM in Nashville. Although Speaker Sexton stated that the Governor’s bill only applied to handguns. He stated it was “one good step in getting us towards true constitutional carry”. He also said that “this is the first step to get permitless carry in the state of Tennessee.” After the bill’s passage in the House, Speaker Cameron Sexton stated in a radio interview with Brian Wilson (99.7 FM – Nashville) on Tuesday, March 30, 2021, that the Governor’s bill was not true constitutional carry but that “we will continue pushing and fighting until we can get to true constitutional carry.…”
Each of these Legislators made statements reflecting that the Governor’s new law is not real constitutional carry. What they don’t say is who or what is prohibiting a Republican Governor and a Republican super majority in the Legislature from enacting real constitutional carry in Tennessee. What individual, group or entity holds that power – a power to deny Tennesseans the full exercise of a right which is declared shall not be infringed?
Since the Governor’s hallmark law is not real constitutional carry, what is it?
The reason that Tennessee is not a true constitutional carry state is that we have a law in Tennessee that makes it a crime for any citizen to carry any firearm with the intent to go armed. See, TCA § 39-17-1307(a). One short path to creating real constitutional carry is simply to delete that sentence.
Rather than delete the prohibition on carrying a firearm with the intent to go armed, the Governor’s law creates a new subsection, “(g)”, which lists certain conditions that give rise to an “exception” to the criminal charge of carrying a firearm with intent to go armed if and only if all of those conditions are met. The choice to make this an “exception” means that you have to satisfy each one of the conditions in order to avoid being charged with the crime. It likely means that a law enforcement officer is authorized to stop and detain any person who is observed carrying a handgun in order to determine if the person either has a valid permit or satisfies each of the conditions to the exception in the Governor’s law to the criminal charge.
Thus, the Governor’s law is nothing more than a qualified exception to a criminal charge of carrying a firearm with the intent to go armed but that exception only applies if a list of conditions are satisfied.
What are these conditions that must be satisfied in order to avoid being charged with the crime of 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) (Note that a federal lawsuit has already been filed which asserts that the differential treatment of 18-20 year olds is a federal civil rights violation, see, Bassett v. Slatery);
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 law);
The person must be “in a place where the person is lawfully present” – the Legislative record is unclear on what this element is intended to accomplish other than being a basis for some category of criminal charge;
The person has never been convicted of the misdemeanor crime of stalking under TCA § 39-17-315 (note that this is a nonviolent misdemeanor in Tennessee and sets a precedent for restricting 2nd Amendment rights based on other nonviolent crimes);
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”; and
The person is not otherwise prohibited from possessing a firearm by 18 U.S.C. § 922(g) as it existed on January 1, 2021.
All of these conditions must be met for the exception to apply. An officer could stop a person and detain them until the officer runs one or more background checks to determined if each of these conditions are met.
What else does the Governor’s law do?
The Governor’s law 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 T.C.A. § 39-11-106(a)(18) so not all handguns, as defined by most people and federal law, are covered by the Governor’s law.
The Governor’s law amended T.C.A. § 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 law amended parts of T.C.A. §§ 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 law could be criminally charged if they went into those same areas.
The Governor’s law 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 prohibited locations, such as public parks, greenways and other situations under current law where a handgun permit is required to establish a defense or an exception to a criminal charge, the handgun permit may be a practical necessity in Tennessee even still for those who desire to carry a handgun.
Further, there may be circumstances such as the Governor’s law’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 law. For example, some people who are not eligible to carry under the Governor’s law because of prior DUI convictions may be eligible to get the enhanced Tennessee handgun permit because the DUI provisions in the two laws are not identical.
Do I need to keep or get an enhanced handgun permit?
Some may wonder if they need to renew their existing Tennessee handgun permits or apply for one. Generally, the answer is yes — you need a handgun permit if you want the maximum flexibility in carrying a handgun and the minimal risk of criminal charges for every day carrying of the handgun.
The Tennessee handgun permits, preferably the enhanced permit, are necessary to minimize the risks of criminal charges from carrying in places like public parks and greenways. They are the best mechanism now available for obtaining the ability to carry in the largest number of other states. The Governor’s permitless carry law only applies so a subclass of those who can legally possess handguns and it only applies in Tennessee. If you want to carry in other states, the safest option is to have the enhanced handgun permit or in some instances to obtain non-resident permits in other states where available.
You could decide to not renew a permit but with these omissions and even traps built into the Governor’s permitless carry law why do that and take the risk?
Is the Governor’s law an improvement for Tennesseans?
While some have championed the Governor’s law as a major victory for Tennessee’s gun owners, a detailed analysis suggests otherwise. As discussed above, it may enable some limited classes of individuals who can legally own firearms to under limited circumstances carry those a handgun without a permit but the entire scheme is too complicated and confusing. Furthermore, as noted above, it is not presented in the law as removing infringement on a “right” but it is instead addressed as the Legislators in state of Tennessee “allowing” certain groups of people nothing more than an exception to a criminal charge. It is the continued existence of that criminal charge which negates entirely the assertion that Tennessee is as of July 1, 2021, a constitutional carry state.
Comments from citizens in public meetings and on social media reveal that unfortunately too many inaccurately believe that starting in July 2021 that Tennessee is a “constitutional carry” state. They inaccurately believe that they can carry any firearm or any handgun anywhere they want without a permit – “because that is what the constitution says”.
The Governor’s law has created needless and avoidable risk and confusion on these issues. The Governor’s law simply does not remove the infringements on our rights as the 2nd Amendment mandates. Tennesseans mistakenly seeking to lawfully exercise their Second Amendment rights under the Governor’s law are exposed to criminal prosecution and in some instances may permanently lose the right to even own firearms.
The United States Supreme Court more than a decade ago held in its Heller decision that the Second Amendment protects an individual right and that this right includes the right to use firearms for self-defense. The Supreme Court in its McDonald decision expressly held that the Second Amendment’s “shall not be infringed” language prohibits not just the federal government but the state and local governments from infringing the protected rights of citizens. Despite the language and application of the Second Amendment to restrain the State of Tennessee’s authority on this issue, the Governor and most in the Legislature eagerly enacted this legislation. The Governor’s law disregards the core holdings of the US Supreme Court and instead merely serves to perpetuate and preserve state infringements on constitutionally protected rights
Fortunately, it is clear that some legislators do understand what the 2nd Amendment prohibits and that presents an opportunity that in time Tennessee may actually enact legislation that results in real constitutional carry in Tennessee. For example, in a committee hearing on March 3, 2021, Rep. William Lambert presented the Governor’s Bill (HB786) to the House Criminal Justice Subcommittee and at the beginning of that presentation he described the bill as “constitutional carry”. Negating that conclusion, he then lists various restrictions in terms of both the individuals who would be allowed to exercise that right as well as noting that even those select individuals will only be able to carry handguns and not all firearms. Rep. Jerry Sexton stated (at approximately 4 minute mark) “[i]ts my understanding and I will ask you [Rep. Lamberth] if you agree with this that whenever the permit was imposed, it would be unconstitutional and what we are trying to do here is bring it back into agreement with the constitution that we have the right to keep and bear arms….” In response, Rep. Lamberth stated “… under our current permit process, it is certainly I think a violation of your 2nd Amendment and 4th Amendment rights and others because unless you’ve got that permit and paid that fee you can’t full the destiny that our Founders intended in this country to exercise your freedoms.” Tennessee needs a majority of legislators in both houses who embrace the fundamental understanding of the 2nd Amendment that is reflected in Rep. Jerry Sexton’s comment.
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