The Tennessee Constitution

[Guest Jamie]

If things go well with the current case before SCOTUS ( McDonald ), I wonder if there will possibly ever have to be an alteration to this bit:

"That the citizens of this State have a right to keep and to bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime."

What do you think... would incorporation and Strict Scrutiny pull the rug out from under that bit about the legislature having the power to regulate the wearing (bearing) of arms?

Just wondering on how the Supreme Court's decision could eventually end up affecting us locally...

J.

[Worriedman]

As originally written, (1796) Article 11, Section 26 stated:

That the free men of this State have a right to keep and to bear arms for their common defence.

Reconstruction at an end, the 1870 rendition changed and added to the original:

That the citizens of this state have a right to keep and to bear arms for their common defense;but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime.

Legislators being what they are, we will never get them to relinquish that power. I would be happy to get them to abide by the letter of the law as written, and force them to provide empirical data to prove that their restrictions actually reduce crime, requiring repeal of any restriction on the books that could not be proven to do so.

Edited March 6, 2010 by Worriedman

[Mark@Sea]

It is a given, supported by every statistic available, that regulating or preventing the carry of arms does nothing to prevent or even reduce crime. Quite a bit of evidence suggests that the effects of such regulation are, in fact, in opposition to the stated goal.

Call me cynical, I think the point is revenue generation.

I'm happy the state is under 'shall issue'. I'd be happier if the process was cheaper. If it costs ten dollars to do a background check in the course of buying a handgun, why is it so much more expensive to get a permit?

[Smith]

Funny how intent gets forgotten when a law has been on the books a while.

[Guest Jamie]

I'd be happier if the process was cheaper.

The only way the process is going to get any cheaper is if you don't have to pay anybody to do it.

$12.50 a year, per permit, isn't enough to cover even the lowest-paid state clerk's salary, after all.

J.

[macville]

Legislators being what they are, we will never get them to relinquish that power. I would be happy to get them to abide by the letter of the law as written, and force them to provide empirical data to prove that their restrictions actually reduce crime, requiring repeal of any restriction on the books that could not be proven to do so.

Actually, we should be able to sue the State of TN that the majority of state gun laws do not reduce crime and therefore are unconstitutional. Never thought of it that way before. Now if we just had endless money to fight the government to follow the law also (which is ironically stupid since we OWN the gov!)

Matthew

[JayC]

How about we start with requiring the legislature to follow the current state constitution... Go look at all the laws that impact the purchase and sale of firearms and ammo... If the legislature can ONLY regulate the wearing of firearms, how can they make TICS under our current constitution? How can they regulate the sale of firearms?

It's a nice thought that one day our state constitution will give us the same protections to our god given rights as the federal, but I just don't see that ruling coming for a long time.

If things go well with the current case before SCOTUS ( McDonald ), I wonder if there will possibly ever have to be an alteration to this bit:

"That the citizens of this State have a right to keep and to bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime."

What do you think... would incorporation and Strict Scrutiny pull the rug out from under that bit about the legislature having the power to regulate the wearing (bearing) of arms?

Just wondering on how the Supreme Court's decision could eventually end up affecting us locally...

J.

[wjh2657]

The later provision was probably (many historical precedents) put in to limit carry by Black citizens (I am white, but one shouldn't totally ignore history!)on one side and to limit good old boys who hadn't got the word that the war was over (protecting carperbaggers!)

Our forefathers have been raised to God-like status but the truth is they were just sneaky politicians even back then.

The other catch is that "the People" in other parts of the constitutions (both U.S. and State) means a group or assembly of citizens not an individual citizen. Our forefathers did not shore up our rights nearly as well as some like to think. If they had worded it "the right of all citizens or Individual citizens" we would have a whole lot more to work for us.

We need some serious changes in the laws or better worded amendments. Just parroting Second Amendment is not going to get it.

[Worriedman]

The later provision was probably (many historical precedents) put in to limit carry by Black citizens (I am white, but one shouldn't totally ignore history!)on one side and to limit good old boys who hadn't got the word that the war was over (protecting carperbaggers!)

You are correct in that assumption.

Our forefathers have been raised to God-like status but the truth is they were just sneaky politicians even back then.

The other catch is that "the People" in other parts of the constitutions (both U.S. and State) means a group or assembly of citizens not an individual citizen. Our forefathers did not shore up our rights nearly as well as some like to think. If they had worded it "the right of all citizens or Individual citizens" we would have a whole lot more to work for us.

Please provide a cite where the term "people" means group, and not individual. Heller specifically states that the Second Amendment means individual Right to have a handgun.

We need some serious changes in the laws or better worded amendments. Just parroting Second Amendment is not going to get it.

In the Fifth Amendment, is states "no person", which is synonymous with "the people", The Fourteenth states "nor shall any state deprive any person". No allusion to a group, strictly individual.

Pretty clear cut.

[DaveTN]

What do you think... would incorporation and Strict Scrutiny pull the rug out from under that bit about the legislature having the power to regulate the wearing (bearing) of arms?

Just wondering on how the Supreme Court's decision could eventually end up affecting us locally...

You will not live long enough to see a SCOTUS ruling that will allow carry. It can’t happen; we already fought a war over that.

And McDonald has nothing to do with carry.

[Guest Jamie]

You will not live long enough to see a SCOTUS ruling that will allow carry. It can’t happen; we already fought a war over that.

I didn't think I'd ever live long enough to see what's already transpired.

And a lot of people said that couldn't/wouldn't happen as well.

Or have you folks forgotten all the teeth-gnashing and hand-wringing from a lot of folks, when they found out SCOTUS was going to hear Heller? Many swore it would be the end of the 2nd altogether.

And here we are, 2 years later, about to see the 2nd incorporated...

BTW, we've fought wars over everything imaginable, and some things that were only imagined ( WMDs, anyone? ), so that's no real argument for or against much of anything.

J.

Edited March 9, 2010 by Jamie

[DaveTN]

I didn't think I'd ever live long enough to see what's already transpired.

And a lot of people said that couldn't/wouldn't happen as well.

Or have you folks forgotten all the teeth-gnashing and hand-wringing from a lot of folks, when they found out SCOTUS was going to hear Heller? Many swore it would be the end of the 2nd altogether.

And here we are, 2 years later, about to see the 2nd incorporated...

BTW, we've fought wars over everything imaginable, and some things that were only imagined ( WMDs, anyone? ), so that's no real argument for or against much of anything.

Check back with me when the 2nd means you can carry a firearm regardless of state law.

I think you are adding an awful lot of drama to Heller that just wasn’t there. Go back and read the posts on the forum during that time.

Both sides of the gun debate claim a victory from Heller. Did it change anything? No.

The SCOTUS acknowledged that you have a right to own guns and the state has the right to regulate how, when, where, and if you can bear them. Same as it’s always been and the same as it’s always going to be. It is illegal to carry a loaded firearm in Tennessee and Illinois; and I’m willing to bet that doesn’t change with any SCOTUS ruling.

[Guest Jamie]

Heller was the first step that I never thought anyone would take.

In that regard, it was indeed quite dramatic.

J.

[DaveTN]

BTW, we've fought wars over everything imaginable, and some things that were only imagined ( WMDs, anyone? ), so that's no real argument for or against much of anything.

We have never fought a war like the Civil War. And yes, that means something. It means that regardless of what was written in the Constitution the battle over States Rights tore this country in half.

[Guest Jamie]

Concerning this, and Heller:

The SCOTUS acknowledged that you have a right to own guns and the state has the right to regulate how, when, where, and if you can bear them.

JUSTICE SCALIA: Well, why would this one be resolved on the basis of statistics? If there is a constitutional right, we find what the minimum constitutional right is and everything above that is up to the States. If you want to have, you know -- I think we mentioned in Heller concealed carry laws. I mean, those are -- those are matter that we didn't decide in Heller.

So apparently the court thinks they DIDN'T decide that the states get to dictate the "how, when and where" of bearing arms... at least not yet.

The above quote is from the McDonald oral argument transcript, btw.

http://www.nraila.org/pdfs/McDonaldvChicagooral.pdf

J.

[Guest Jamie]

We have never fought a war like the Civil War. And yes, that means something. It means that regardless of what was written in the Constitution the battle over States Rights tore this country in half.

You might ought'a go back and take a look at the American Revolutionary war, because there are a hell of a lot more similarities between it and the U.S. civil war than there are differences.

J.

[DaveTN]

Concerning this, and Heller:

So apparently the court thinks they DIDN'T decide that the states get to dictate the "how, when and where" of bearing arms... at least not yet.

So it is your opinion that somewhere along the line the SCOTUS may say that the right to bear arms is an individual right, and all the folks in Illinois, New York, California and even Tennessee can strap on their sidearm and go walking down the street? Does that even remotely sound like a possibility to you?

BTW… I’m all for anyone being able to carry a gun. I believe it is a right; I just don’t tie that right to the 2nd amendment. But I’m also a realist and I know that there are several states that would tell the SCOTUS to go pound sand. The court knows that and they are not going to go there.

[Guest Jamie]

So it is your opinion that somewhere along the line the SCOTUS may say that the right to bear arms is an individual right, and all the folks in Illinois, New York, California and even Tennessee can strap on their sidearm and go walking down the street? Does that even remotely sound like a possibility to you?

If they keep going down the path that they're apparently currently on, then yes, I see it as almost inevitable.

They have ruled on the right to keep arms, they are in the midst of ruling on incorporation... the next logical step in that process is the "bear" part of the amendment.

BTW… I’m all for anyone being able to carry a gun. I believe it is a right; I just don’t tie that right to the 2nd amendment.

The 2nd is the only thing in this country that supports or affirms that owning or carrying a gun or other weapon is a right, so I really have a hard time understanding you here.

But I’m also a realist...

Not quite the word or term I'd use, but okay...

....and I know that there are several states that would tell the SCOTUS to go pound sand. The court knows that and they are not going to go there.

And I don't believe that any state is going to part with the federal money that would leave them when they told the court to piss off, so I can very much see where SCOTUS would go there, and dare anyone to not adhere to their ruling.

It's sort of like saying SCOTUS is wasting their time with McDonald 'cause Chicago is going to just do what they want any way.

I just don't buy it.

J.

[Worriedman]

A "Right" is simply a guarantee against Government Power and intrusion into the issue stated. In the case of the 2nd Amendment, there is a substantive guarantee that the Federal Government, "shall not infringe" the "right" of the people to keep and bear arms. That means, for those who understand the language, that the Federal Government has no stake in the question of the individual Citizen's ability to have and carry arms.

Lexington, Concord and Bunker Hill dealt with a tyrannical Government attempting to confiscate arms without due process, against natural law of the individual to provide for their own defense. The Crown knew that the only way to contain the unrest against the issues fermenting toward Revolution was to disarm the populace.

The Constitution itself is a list of chains placed on Government, it does not enumerate "Rights", in fact the word is used only once in the entire document, and that in restricting the Power of the Federal Government with respect to the proceeds of writings, art and inventions of an individual. Jefferson and Madison did not believe at first, that there was a need for a list of "Rights", assuming that having come through the trials of the Revolution that any listing was necessary, and might even if provided, give the Government power to take any not enumerated.

The Bill of Rights was added just in case the Government would presume to overstep its bounds. The Tenth says any Power not expressly granted to the Federal Government in the Constitution belonged to the States, or the People. The issue of arms, having and bearing, is precluded from Federal Government involvement, by the "not be infringed" statement. These issues are left to the States, and to the People by virtue of "consent of the governed".

Article 1, Section 26 of the Tennessee Constitution contains the controls of arms ownership and ability to bear them in our State. It is given as a Power to the Legislature to restrict the wearing of arms, with a view to prevent crime. We have the ability to elect those Legislators and to effect how the laws and codes are written and enforced. If we do not like the laws we have, we can elect new Legislators and replace the laws. The map is laid out in the Tennessee Constitution, it is up to us to demand and control what comes out of Nashville in respect to what we, the People will allow.

[Guest Jamie]

So, Worriedman, you believe that SCOTUS is wasting time with McDonald, and no matter what, will have no impact at all - ever - on any of the states or their laws?

J.

[Worriedman]

So, Worriedman, you believe that SCOTUS is wasting time with McDonald, and no matter what, will have no impact at all - ever - on any of the states or their laws?

J.

Not at all, I believe they must incorporate the 2nd against (or rather to) the States, and then it is up to the citizens of each State as to what they will require of their Legislators.

My view is that the Federal Government must admit they have no Power to involve themselves in infringing on the "Right" to keep and bear arms, that it in fact it is solely the responsibility of the States as to what laws are written regarding the issue.

Edited March 9, 2010 by Worriedman

[Guest Jamie]

Not at all, I believe they must incorporate the 2nd against (or rather to) the States, and then it is up to the citizens of each State as to what they will require of their Legislators.

My understanding is that incorporating against the states removes or greatly limits the state's power to control what the individual does at all.

In other words, it put's the matter back in the hands of the people.

Seems a lot of other folks have the same idea, from what I've seen, and it's the major reason why how the second is incorporated, and what degree of scrutiny will be applied is so important.

J.

[Worriedman]

Putting it another way, the Federal Government has no business involving itself in the discussion of limiting the ability of its Citizens to keep and bear arms (have and carry), except to affirm that each individual has that right under the Second Amendment. The Tenth lays out that all other Power not given the Federal Government is to belong to the States, that would include restrictions of all types, severe or lax.

The Federal Government's only duty in regard to arms is to protect the individual's "Right" to keep and bear them.

Edited March 9, 2010 by Worriedman

[Guest Jamie]

Worriedman, this is the question currently before the Supreme Court Of The United States:

08-1521 MCDONALD V. CHICAGO

DECISION BELOW:567 F.3 856

CERT. GRANTED 9/30/2009

QUESTIONS PRESENTED:

Whether the Second Amendment right to keep and bear arms is incorporated as

against the States by the Fourteenth Amendment's Privileges or Immunities or Due

Process Clauses.

LOWER COURT CASE NUMBER: 08-4241, 08-4243, 08-4244

The whole reason this question is being asked is because the lower court could not decide if Chicago's ban on handguns was constitutional until it is answered.

So tell me how it is that the 2nd isn't being brought to bear against a state or local government by incorporating the amendment? Where is it not restraining them from making and passing certain laws? ( Provided SCOTUS rules for incorporation. )

If the 2nd is fully incorporated, Chicago's ban is gone. That's the whole reason so many people are wanting it.

J.

Edited March 9, 2010 by Jamie

[Worriedman]

I understand the question before SCOTUS.

Do I think the Second Amendment should be Incorporated, yes. Do I think it will be, yes.

Heller was vital in that it gave individual vs. a collective "Right" precedence. Although not being a State, the DC decision left the incorporation against States issue unresolved.

McDonald will set that straight, it will render outright bans illegal, but it will not give carte blanch to tote whatever weapon one wishes, wherever one wants. Each State has its own Constitution, and each has restrictions of a type.

The chance to fight, State by State, unreasonable restrictions will be given life with this decision, but the battle will not be over by a long shot.