First, let us define the term “constitutional carry”. Constitutional carry means the full and free exercise of the right that is recognized and protected by the Second Amendment. It means that anyone who can legally possess a firearm can carry it.
By John Harris / Tennessee Firearms Association
One of Bill Lee’s initial statements as a candidate was that he did not support constitutional carry. He thought we needed a permit system, background checks and “safety requirements”. He felt that the state simply should not charge a fee for the permit. It was a surprise when 2 years later he announced that he was filing, as governor, a constitutional carry bill. Now that it has been enacted, it is clear that he did not support nor did he want real constitutional carry. He wanted to preserve the criminal charge of “carrying with intent to go armed” and he wanted to have a lot of qualifiers on the exception to that criminal charge.
In March 2021, the Legislature passed the governor’s bill (House Bill 786 / Senate Bill 765). Assuming it becomes law, it goes into effect July 1, 2021.
The Governor’s new law is not real constitutional carry. It does include a provision that allows some citizens under certain circumstances and in some locations to carry a handgun without a permit. Therefore, Governor’s new law is a form of permitless carry.
Limits to new liberty
So what does the Governor’s new law do and what doesn’t it do?
To start, it is important to note that the Governor’s law does not repeal the existing provision found in TCA § 39-17-1307(a) which makes it a crime to carry a firearm, any firearm, with the intent to go armed. That crime remains in effect. The Governor’s bill creates a new subsection, “(g)”, which lists certain conditions that give rise to an “exception” to that criminal charge.
The creation of an “exception” means that you have to satisfy each one of the conditions in order to avoid being charged with the crime. It may mean that a law enforcement officer may be able to stop and detain a person who is observed carrying a handgun, which remains a crime, in order to determine if the person satisfies each of the exceptions to the criminal charge.
Exceptions
What are these exceptions that must be satisfied in order to avoid being charged with 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);
- 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 bill);
- The person must be “in a place where the person is lawfully present”
- The person has never been convicted of the misdemeanor crime of stalking under TCA § 39-17-315
- 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”;
- The person is not otherwise prohibited from possessing a firearm by 18 USC § 922(g) as it existed on January 1, 2021.
The Governor’s bill 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 TCA § 39-11-106(a)(18) so not all handguns, as defined by most people and federal law, are covered by the Governor’s bill.
The Governor’s bill amended TCA § 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 bill also amended parts of TCA §§ 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 permitless carry bill could be criminally charged if they went into those same areas.
The Governor’s bill 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 in his bill prohibited locations, such as public parks, greenways and other situations where a permit is required to establish a defense or an exception to a criminal charge, the permit may be a practical necessity even still for those who desire to carry a handgun.
Further, there may be circumstances such as the Governor’s bill’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 language in this bill.
Reciprocity trap
It is also important to understand that the concept of “reciprocity” is generally a doctrine between and among states based on the issuance of some type of license or permit. The Governor’s bill, at this point, has nothing to do with permits in that regard. For most people, if you want to be able to carry in the maximum number of other states you are likely going to need to get the Tennessee enhanced permit.
Some may wonder if they need to renew their existing Tennessee permits. Generally, the answer is yes. At present, those are necessary to minimize the risks of criminal charges from carrying in places like public parks and they are the best mechanism for obtaining the ability to carry in the largest number of other states. You could decide to not renew a permit but with these omissions in the Governor’s bill why do that and take the risk?
What lies ahead?
The Governor’s bill is clearly not true constitutional carry. Several ranking legislators are already on record with that statement. True constitutional carry would recognize the full scope of the right that is protected by the 2nd Amendment and it would eliminate state and local infringements on that right. That is not what this bill does. As Senator Kerry Roberts said in his comments in Senate Judiciary, this bill leaves much more work to be done unfortunately.
At present, it is unclear which if any states would recognize someone carrying pursuant to the Governor’s bill as legally carrying in the other state. Frankly, the Governor’s bill may not improve that situation and it may make it worse if the other state’s law looks to the issue of whether the person can legally carry in his or her “home” state. What we may find is that the states which already allow some form of permitless or open carry may also allow non-residents to carry in those states without a permit. So, although it could make the situation worse, the Governor’s bill likely does not increase the number of states where permitless carry by Tennessee residents will be allowed.
The bill is also ripe for litigation and future changes. For example, one national organization, the Firearms Policy Coalition is already searching for individuals to challenge the 21 and up standard that allows some but not all 18-20 year olds to carry a handgun.
Other areas of potential problems or litigation include:
- Whether the phrase “lawfully present” is unconstitutionally vague.
- Whether the stalking restriction is a lifetime ban.
- Whether the stalking restriction can be removed based on a restoration of rights order, expungement or pardon.
- Whether the stalking restriction fails under an “as applied” constitutional challenge.
- Whether the DUI provisions fail under a constitutional challenge.
- Whether the mental health restrictions violate the 2008 NICS Improvement Act and, if so, whether it will result in loss of federal grant money for mental health treatment programs.
- Whether the mental health restrictions are removed if a person successfully completes one of Tennessee’s several relief of disabilities statutes that were enacted under the 2008 NICS Improvement Act.
- Whether a law enforcement officer can stop a person who is carrying a handgun for purposes of performing a check to determine if they meet all of the exceptions required by the language of the Governor’s bill.
- Whether a person carrying under the Governor’s bill in a place that continues to require a permit as an exception or defense, such as a public park or greenway, can be criminally charged both with being armed in a park as well as a second charge for carrying with intent to go armed.
Tennessee Firearms Association recognizes that there may be some people who can rely on the Governor’s bill and carry a handgun in some locations who will benefit from this bill. Real constitutional carry is the goal and the goal is defined by the very language of the Second Amendment itself. This Governor, this Legislature and this bill does not score that goal.
