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Guns in bars to face local legal challenge | Nashville City Paper: Nashville's Online Source for Daily News
Wednesday, June 17, 2009 at 11:00pm
By Nate Rau
So, do 37 other states have laws similar to the one Tennessee’s legislature passed this month allowing guns in establishments that serve alcohol?
Well, that’s the statement the media and proponents of the guns-in-bars bill tossed around throughout the debate about the legislation’s merits. Everyone from the bill’s sponsor, state Sen. Doug Jackson, to conservative talk show hosts to the media spokesman for the National Rifle Association have said something to that effect.
The numbers did change from time to time.
The Associated Press reported when the bill passed that “37 other states have similar laws.” Bradley County Sheriff Tim Gobble told the Cleveland (Tenn.) Daily Banner, “There are 38 other states who already have similar laws like this in motion and it seems to be working for them.”
And there’s Jackson himself, who told everyone from WKRN Channel 2 to Fox News, the number was actually 40 states.
“I would just point out that 40 states allow citizens to carry guns where alcohol is served,” the senator said.
Yet it turns out that no matter which of those numbers are used, they are wrong.
Numbers worth exploring
Based on extensive legal research conducted by Nashville attorney David Randolph Smith of the local firm Smith and Schmidt, the actual figure is nearly the inverse.
There ARE 37 states according to Smith that have laws mandating the issuance of concealed weapons permits. But of those 37 states, 27 explicitly prohibit guns in places where alcohol is served.
In fact, there are only 15 states in the country which have circumstances remotely similar to the one Tennessee will be in on July 14 when the law goes into effect. Those states issue concealed weapons permits, but do not explicitly ban guns in places serving alcohol. They also preempt local governments from regulating firearms.
In effect, a person with a handgun in a bar in any of those 15 states is not committing a criminal act. But Tennessee’s new law goes one step further than that. It is the first state in the entire country to expressly allow handguns in places that serve alcohol.
Smith believes Tennessee committed “legislative malpractice” when its General Assembly voted to override Gov. Phil Bredesen’s veto of the guns-in-bars bill, and he intends to do something about. He’s leading a coalition that’s formulating a potential legal challenge to guns-in-bars.
“In effect, Tennessee by this new law has legislated a public nuisance and created an explicit right to bring handguns into bars,” Smith said. “This is unprecedented in U.S. law and runs afoul of the law and policy in the vast majority of states that do not permit concealed weapons in bars, or otherwise restrict, or prohibit loaded and concealed weapons in public places.”
Dread helps line up plaintiffs
Working with Smith on a potential legal challenge is Nashville attorney Adam Dread, a former Metro Council member and a handgun owner.
It was Dread who introduced the notion that Metro could prohibit guns in Nashville bars by regulating beer permits. His idea eventually led to a bill sponsored by At-large Council members Megan Barry and Charlie Tygard.
In the end, the concept fizzled out when Metro's legal department determined that state law preempted Metro’s ability to regulate firearms. Tygard has withdrawn the bill, but Dread has vowed to fight on.
“We’re going to build a coalition of like-minded folks who want to do everything we can to keep Nashville safer,” Dread said.
Dread said he would also be reaching out to prominent Nashville organizations, including the business community, the hospitality community and faith-based groups.
The coalition could come in the form of a lawsuit challenging the state law as creating a public nuisance and putting those who work in bars and restaurants in a danger.
Smith said his preference would be for Metro to take the lead and challenge the state law, but so far no momentum has built on that front. Metro Director of Law Sue Cain had no comment for this story.
If Metro decides to stay out of the fight, then Smith and Dread said they would pursue a legal challenge on another front.
Already more than one Nashville server has agreed to file a complaint claiming the law creates an unsafe work environment. Fearing potential backlash, the server declined to comment for this story.
Local restaurateur Randy Rayburn said he’s on board to be included in a legal challenge, too, and explained his stance.
“I think that the vocal minority of supporters of this legislation perpetrated fraud in their presentation of facts to the legislators and the public,” Rayburn said.
Guns and booze don’t mix
Smith said his goal is not simply to bring to light the fact that most states expressly outlaw carrying weapons in establishments that serve alcohol. Smith believes case law demonstrates that courts believe the possession of guns around alcohol is in and of itself a public nuisance.
A 1983 Washington state Supreme Court ruling upheld the constitutionality of a municipal ordinance limiting the possession of firearms where alcoholic beverages are dispensed by the drink.
In 1996, Mark Lake was charged with “unlawful carrying of firearm in establishment licensed to dispense alcoholic beverages.” Lake’s case went to the New Mexico Court of Appeals, where the court ruled the statute “was reasonably related to public health, safety and welfare.”
Smith said the court’s logic matched with his own, that limiting firearms in places that serve alcohol is an issue of public health, safety and welfare.
“The ultimate victory, if it would ever happen, would be for the court to recognize a constitutional right to be free from gun violence, public or private,” Smith said.
Smith does have a history of swimming upstream. He was the attorney who represented a Spanish-speaking woman who brought forward a pre-election challenge to the English Only referendum. Smith believed the English Only proposal was unconstitutional and presented special circumstances to be enjoined.
He lost, but Smith showed a propensity to fight for specific social issues.
“If Metro won’t take up the issue, then we are going to bring a legal challenge,” he said.
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