Constitutional Carry: The Danger of Tennessee's Recent Gun Law by Samantha Tancredi

Constitutional Carry: The Danger of Tennessee’s Recent Gun Law

By Samantha Tancredi, SS Law and Political Science, Former Editor in Chief

Editor’s Note: This article discusses gun violence, which some readers may find distressing

This summer I had the humbling opportunity to intern for the Shelby County District Attorney’s Office in Memphis, Tennessee, where I learned directly from exceptional attorneys about the function of a prosecutorial role. Given the intense political climate in the United States with regard to the police force, I felt confident that taking a job that consistently interacts with this agency would be informative and would help me in shaping a more holistic view of law enforcement. When interacting with the police officers during orientation, as well as discussing Memphis news and politics amongst the interns, one salient conversation in particular constantly resurfaced: the constitutional carry laws that recently came into force in the state of Tennessee on July 1, 2021. This made Tennessee the 19th state in the US to adopt this law.

Constitutional carry laws (also coined ‘permit-less carry’) allow individuals aged 21 and over to carry handguns openly without a permit; this also applies to members of the military aged 18 to 20. Tennessee Governor Bill Lee touted this legislation on the basis of the Second Amendment to the United States Constitution. Though widely popularized, it is worth including a brief synopsis of the Second Amendment to ensure clarity of the difference between the new law and the constitutional provisions. The Second Amendment reads: “A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” The intention behind the language used is to vest power in the people who have the right to an ultimate check on government power and avoid tyranny. Thus, to marry the constitutional carry legislation to the Second Amendment is not blindly inaccurate; there is no requirement in the Constitution for a permit in order to own a firearm. However, safety and public policy concerns clearly pose an imposition to this type of legislation going ahead without criticism and hesitation.

The immediate response to this legislation is to support or oppose it; no one sits idly in the middle on this issue.

On one side, gun activists critique the law for not going far enough to grant further rights to citizens; they note that the new law does not apply to long guns, and they argue that non-military members aged 18 to 20 should be allowed to avail of the permit-less carry permissions. The latter point is driven by the fact that Tennessee’s law increases punishments for certain gun crimes, which may apply to 18 to 20 year olds, who are notably excluded from the new permit-less carry law; thus, the critics argue that this age group should not be exempt from what the legislation itself provides.

However, the contrary opinion focuses far more on concern for the public, one that this article finds far more compelling. This is first rooted in the objective statistics from this past year that inform the need to protect communities from violent crime, which would logically not entail providing easier access to handguns. According to the New York Times, “although major crimes were down overall, there were an additional 4,901

homicides in 2020 compared with the year before, the largest leap since national records started in 1960.” While the Covid-19 pandemic prompted the opportunity for increased crime, whether this was from burdens from unemployment, mental strain from isolation, or other related reasons, these statistics will only worsen by the provision of permitless carry laws. Last year, several cities, like Albuquerque, Des Moines, Indianapolis, Memphis, Milwaukee and Syracuse, recorded their highest homicide numbers ever; the F.B.I. figures for Memphis show a record 289 murders in 2020, up from 190 a year earlier. Moreover, comparing figures from this month last year to present day, Memphis’s homicide statistics have already exceeded those from this same time last year. Thus, there is a clear concern for Governor Bill Lee’s decision to allow this legislation to move ahead.

This article argues that Governor Bill Lee’s Permit-less Carry Legislation is a perfect example of irresponsible and ignorant use of government power. On February 27, 2020, the governor proposed this legislation with claims that “[t]he Second Amendment is clear and concise and secures the freedoms of law-abiding citizens to keep and bear arms.” Governor Lee continued, “I am pleased to announce constitutional carry legislation that will protect the Second Amendment rights of Tennesseans, while also stiffening penalties on criminals who steal or illegally possess firearms.” After being brought to the House of Representatives by the 44th district Tennessee Representative William Lamberth (R-TN) it was en route to pass into law, which eventually occurred on July 1, 2021. The arguably ignorant juxtaposition occurs as the legislation directly opposes the safety craved, and demanded, by the citizens it seeks to serve; justifying this legislation’s passing by relying upon the Constitution also provides murky waters.

There is no document in the U.S with more authority, severity, or importance than the Constitution, yet its interpretations vary. Despite the brevity of the following descriptions, a clear distinction between the originalist and modernist perspectives of interpretation will be obvious. Originalism is a term that means that the Constitution should be viewed in its most original form; it is often associated with “original intent,” which means that the constitution is viewed with the perspective the Founding Fathers intended. It is argued that the framers of the Constitution held a solid vision for how the country was to develop, and drifting from that original purpose is to drift from our nation’s very design. If there is ever a constitutional question, originalists turn to those who wrote the very document in question to provide interpretation. Opposing this is the modernist perspective, which is often associated with the Constitution being a “living” document. This means that the Constitution may be interpreted as if it were being written today—applying its principles to the now. Modernists argue the Constitution becomes irrelevant if viewed the way Originalists intend, since we have developed as a nation in the past 250 years very differently from how the Founding Fathers lived when developing the Constitution. When critiquing the originalist view, modernists suggest that there is little validity in using a homogenous group of wealthy white men to holistically dictate the future of the world’s arguably most diverse nation by strictly adhering to its words.

These interpretations make the most sense in light of American constitutional history. Passing the new Constitution of the Free World was no easy feat given the great division in America at the time-the Anti-Federalists versus the Federalists. The Anti-Federalists worried that the tyrannical form of Government that they had worked tirelessly to escape in Britain would resurface without a safeguard to prevent it. They feared a new government could resort to old ways-that they would fall victim to an overpowering government once again, and this fear drove their value system against tyrannical government. The Federalists did not see it this way, arguing that a democracy would inherently prevent such an occurrence with the people electing members of Congress. They recommended people make the assumption that all rights are protected, not listing out specific ones, thereby allowing for people to violate the unlisted rights. In the end, Federalists promised to enact a Bill of Rights as their first duty once Congress was elected. This compromise led to the birth of the Second Amendment, as was previously discussed.

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Rights

take no issue with this interpretation, or his view. It has its validity and its merits as a genuine string of political thought adheres to a small-government, large-autonomy structure with checks against the government. Within this concept, gun ownership is justified in the people’s vested right to overthrow a dominating government. However, Governor Lee works for the State of Tennessee, not the Founding Fathers of the Constitution, and the originalist tendencies he maintains become irrelevant as he threatens the safety of the state. Within this passed legislation, there is no indication that the Second Amendment informs further legislation to exist at the expense of human lives; the role of the right to bear arms was actually to protect, not to harm, and the constitutional carry laws mock this intention by their very existence.

The Tennessean published an article that details the reactions of Tennessee citizens to this proposal, and the findings are unsurprising. As authors Anita Wadhwani and Jamie McGee describe,

“To buy a firearm, a person must submit to a background check by the Tennessee Bureau of Investigation. To obtain a handgun carry permit, individuals must pass a fingerprint background check by the Tennessee Department of Safety and Homeland Security and complete a Tennessee handgun safety course. A law that went into effect January 1, 2020, now allows Tennesseans to take the 90-minute course online.”

The new legislation means that people will legally be entitled to own and carry a firearm regardless of those permits, causing a public reaction of fear and alarm.

Other Tennessee officials have spoken out against this Bill. Namely, Shelby County District Attorney Amy Weirich, who represents Shelby County, which sees the highest homicide rate in the State; General Weirich spoke in support of “greater penalties for gun crimes,” but remarked “Lee’s permit proposal would create incredible challenges for law enforcement.” To the Governor, General Weirich posits the question:, “Is it really asking too much for someone to get a permit to carry a deadly weapon on our streets?” Nashville District Attorney Glenn Funk held a similar argument: “Encouraging Tennesseans to arm themselves in public, without even requiring gun safety classes, will result in a more dangerous environment for Tennessee families.”

Gun ownership comes with a massive sense of responsibility, and a massive undertaking by its owner: weapons are to be respected, not abused.

This legislation makes it so much easier for abuse to occur and puts citizens, police, and the Governor himself at a greater risk for no apparent reason other than a massive expansion of the Second Amendment that arguably does not represent its intentions.

The Governor is entitled to any interpretation of the Constitution as he pleases. But is he entitled to threaten the safety of those who live in Tennessee? Who would, and more importantly, who could feel comfortable knowing that people now may access firearms with no background tests? How many more school shootings must the USA suffer before politicians such as Governor Bill Lee learn? Background checks and the most basic safety institutions which are already in place, such as that of retrieving a permit, have failed already.Take those away, the risk only increases.

Analogously, a similar line of questions apply in considering traffic safety. Should we take away the need to practice before we allow people to get behind the wheel of a car? Is the requirement of a license to do so a symbol of the government infringing on someone’s right to drive? Should we as a society require all to be the age of 21 before driving without a license?

public safety, which include:

“Increasing the penalty for theft of a firearm to a felony; Providing a sentencing enhancement for theft of a firearm in a car; Increasing the minimum sentence for theft of a firearm from 30 days to 180 days; Increasing the sentences for unlawful possession of a firearm by violent felons and felony drug offenders, possession of a handgun by a felon, and unlawfully providing a handgun to a juvenile or allowing a juvenile to possess a handgun.”

By this bill, after the people wrongfully possess a firearm, punishment follows, despite having the means and opportunity to work to prevent that in the first place. Though law often finds itself in a reactive seat, this is a situation where the law may actually be proactive, but the Governor is restraining its ability to do so by taking restitutionary measures seriously, but not preventative ones.

Ultimately, the constitutional carry law passed in Tennessee is another example of a political misuse of power. Though statistically it is too soon to tell the effects of this legislation, it is not promising; the harm seems to greatly outweigh the good. While prominent city leaders who deal with homicide and crime daily directly opposed the passage of this legislation, warning Governor Lee of its harmful effects, it still passed. Now, the citizens of Tennessee join the 19 other States with this law in having to defend its communities from the potential horrors now granted by law. In the end, gun laws in the US have the opportunity to be proactive; instead, this constitutional carry permission forces law into the backseat and remains reactive. With human lives on the line, can we really afford this?