TN HCP laws constitutional?

[Guest nraforlife]

The current TN Constitution states

§ 26. Weapons; right to bear arms 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.

But did you know that the TN Constitution of 1835 was slightly different

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

http://www.tngenweb.org/law/constitution1835.html

The current constitution was put in place after the Civil War and section 26 was slightly changed to keep, not in a in your face way but quite subtlety, the free slaves at a disadvantage and unarmed. So basically we still have politicians enforcing a Jim Crow law.

My question is this. are the HCP laws and restrictions here in TN constitutional and would these laws stand a serious court challenge?

Should we not be shaming the legislators in their backing of a Jim Crow law?

Edited May 17, 2008 by nraforlife

[Fallguy]

It would seem on it's face the the HCP laws are constitutional (at least as far as the TN constitution) based on the very part of the TN constitution you posted.

§ 26. Weapons; right to bear arms 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.

Not sure if the current wording is a "Jim Crow" law to use your words.

Also the general opinion of most seems to be that SCOTUS in D.C. v Heller will rule firearm ownership as an individual right, but subject to "reasonable restrictions". Now whether permits are a "reasonable restriction" would require another court challenge. In my very unexpert opinion, I think permits would be ruled reasonable. (Although I don't personally agree with that)

[Guest Phantom6]

Ah, maybe I just did not read your post correctly but when you posted

The current TN Constitution states

§ 26. Weapons; right to bear arms 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.

How does that equate to segregation? According to you Article 26 of the Constitution of 1835 (Tennessee's second Constitution), which was enacted a full 26 years prior to the beginning of the War of Northern Agression in 1861, mentions "free white men" in it's language and therefore is certainly segregationist in nature and was a part of a document that argueably took several steps backward in terms of rights and freedoms, including disenfranchising blacks freed or otherwise from our first Constitution which was enacted and ratified by the voters of the state in 1796. That same article in the Constitution of 1870 (our current Constitution) mentions only the term "citizens". The use of this term would only presume that an individual was a legal resident of the United States of America and a resident of the State of Tennessee having neither renounced his/her US citizenship nor having been convicted of a felony thereby incurring the loss of a general citizen's rights including the rights to vote and the right to own a firearm as well as others. Did I misunderstand you? Am I wrong?

As a side note I must say that I strongly oppose the use of the term "Jim Crow" as no one in my family had anything to do with the occupation of the South by the Union Army which protected the Northern Carpetbaggers- who were generally white Democrats from Northern states- that swarmed to take advantage of a vanquished populace during what is generally termed as the era of Reconstruction but would be more accurately described as the Rape of the South between 1865 and 1877.

Edit: "..... but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime." I certainly don't see this portion as being segregationist de jure either. This covers such things as Thou Shalt Not carry a firearm in a court of law which I happen to agree with considering how emotional disputes settled there can be and other less understandable portions of the law such as prohibition on carry in parks and places that sell liquor wine or beer. The law reads the same for white, black, Mexican, Japanese, Irish, or any other group that has settled this state.

Edited May 17, 2008 by Phantom6

[Guest nraforlife]

Please read the original 26 article of the 1835 constitution and then after the Civil War the rewording. If one keeps in mind that there was a great fear in the south of the freed slaves and the need to make sure that they were able to be kept under control, you change the wording in such a way as to be able to restrict without singling out. The wording could have easily been changed to XXVI. That the citizens of this State have a right to keep and to bear arms for their common defence.

But by rewording it to "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." You can then restrict the ability to defend oneself and, as today with the exception of those who get HCP's which the poor, overwhelming black, cannot afford, only the wealthy and connected got away with wearing arms as they by definition were generally not the ones envisioned under the "view to prevent crime" wording. As I said, cunningly worded as to not directly single out any group.

You may not agree with me, but keep in mind the year, the events going on and the fear among portions of the populance. Also keep in mind all the other Jim Crow laws enacted in the South during this timeframe.

SO I will state again that section 26 of the TN Constitution is racist and segregationist in meaning, if not in outright wording, and the HCP law and fees are discriminatory and also racist in that the poor, once again overwhelming black, cannot afford the fees for training and for a license.

Just throwing this out for everyone to look at and form their own conclusions not to start the War of Northern Aggression all over again. :-\

Edited May 17, 2008 by nraforlife

[Fallguy]

I see what your saying.

It's really not a matter whether the HCP law is constitutional, but if § 26 of the constitution is racist, right?

I do think the permit system is designed to limit those who can legally carry...I mean $115, come on. ...and as I've said many time, I don't think one should have to get a permit from the state. But I guess I've never thought the wording of § 26 or the carry permit laws were to target a single race. But sometimes I always view things in the best light.

[Guest nraforlife]

I see what your saying.

It's really not a matter whether the HCP law is constitutional, but if § 26 of the constitution is racist, right?

I do think the permit system is designed to limit those who can legally carry...I mean $115, come on. ...and as I've said many time, I don't think one should have to get a permit from the state. But I guess I've never thought the wording of § 26 or the carry permit laws were to target a single race. But sometimes I always view things in the best light.

Almost, if § 26 is racist and discriminatory then all subordinate laws and regulations are tainted with the same stench are they not? I don't have the ability to do the research but I would almost bet the the writers of the reworded § 26 were wealthy white land owners and gentry - hence the Jim Crow reference. Would be interesting to phrase it as such to the Americans of African descent that serve in the legislature. IMHO what we have is a law that was cunningly worded to not just adversely target a single race but also a single class, the less well off.

[Guest 270win]

The TN handgun carry permit laws are not unconstitutional when measured against the state constitution. I do not agree with having to pay the government to carry a handgun, but the TN Constitution allows the legislature to regulate carrying handguns it whatever way it sees fit. TN had a 'may issue' permit system before 1994 with the county sheriffs, shall issue 94-96 through the counties, and 96 to present permits from the state. I doubt this will change anytime soon. The pros of the present permit system is that it is fairly straightforward to get a permit from the state if you are not a convicted felon or convicted of other misdemeanors like multiple DWI"s in a short period of time. You may also carry a firearm when camping, fishing, hunting, or other outdoor activity without a permit. TN wants its money (i've learned this is a fee driven state on top of the high sales tax). The bad part is that some people may be deterred from getting legal due to the costs of the class and fees to the state for processing your application.

[The Rabbi]

Please read the original 26 article of the 1835 constitution and then after the Civil War the rewording. If one keeps in mind that there was a great fear in the south of the freed slaves and the need to make sure that they were able to be kept under control, you change the wording in such a way as to be able to restrict without singling out. The wording could have easily been changed to XXVI. That the citizens of this State have a right to keep and to bear arms for their common defence.

But by rewording it to "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." You can then restrict the ability to defend oneself and, as today with the exception of those who get HCP's which the poor, overwhelming black, cannot afford, only the wealthy and connected got away with wearing arms as they by definition were generally not the ones envisioned under the "view to prevent crime" wording. As I said, cunningly worded as to not directly single out any group.

You may not agree with me, but keep in mind the year, the events going on and the fear among portions of the populance. Also keep in mind all the other Jim Crow laws enacted in the South during this timeframe.

SO I will state again that section 26 of the TN Constitution is racist and segregationist in meaning, if not in outright wording, and the HCP law and fees are discriminatory and also racist in that the poor, once again overwhelming black, cannot afford the fees for training and for a license.

Just throwing this out for everyone to look at and form their own conclusions not to start the War of Northern Aggression all over again. :-

I'm sorry, this reasoning is just idiotic. The present constitution is not racist, whatever previous ones may have been. The burden of the fee falls disproportionally on poor people regardless of their race. But it is not burdensome. I have plenty of low income people, Black and White, come through the shop with HCPs.

Let's fight actual battles, like expanding carry, instead of playing worthless games like this.

[Guest TNDixieGirl]

I'm sorry, this reasoning is just idiotic. The present constitution is not racist, whatever previous ones may have been. The burden of the fee falls disproportionally on poor people regardless of their race. But it is not burdensome. I have plenty of low income people, Black and White, come through the shop with HCPs.

Let's fight actual battles, like expanding carry, instead of playing worthless games like this.

Agree.

[Guest nraforlife]

Thats what great about America, everyone can have an opinion. I just happen to believe that based upon the rewording of the TN Constitution and the era in which this rewording was done, that it was a method to keep firearms away from and harass the newly freed slaves and other less socially acceptable classes and thus is racist in nature. As far as worthless games go, bringing up something that may be a hold over from the old Jim Crow law days is hardly worthless, maybe fruitless if nobody wants to consider the possibility that a portion of article 26 was written to cunningly allow the discrimination toward a portion of the population.

Edited May 19, 2008 by nraforlife

[The Rabbi]

Thats what great about America, everyone can have an opinion. I just happen to believe that based upon the rewording of the TN Constitution and the era in which this rewording was done, that it was a method to keep firearms away from and harass the newly freed slaves and other less socially acceptable classes and thus is racist in nature. As far as worthless games go, bringing up something that may be a hold over from the old Jim Crow law days is hardly worthless, maybe fruitless if nobody wants to consider the possibility that a portion of article 26 was written to cunningly allow the discrimination toward a portion of the population.

People believe that Elvis is alive and OJ is innocent.

Whatever the original intent of the old constitution it is meaningless for interpreting the present one.

The U.S. Constitution mandates a census every decade. The original constitution further mandated that slaves be counted as 3/5ths of free people. With the end of slavery that clause was moot. But we still have a census. By your reasoning the census is racist. And it isn't.

[Guest nraforlife]

People believe that Elvis is alive and OJ is innocent.

Whatever the original intent of the old constitution it is meaningless for interpreting the present one.

The U.S. Constitution mandates a census every decade. The original constitution further mandated that slaves be counted as 3/5ths of free people. With the end of slavery that clause was moot. But we still have a census. By your reasoning the census is racist. And it isn't.

Oh I agree that the 1835 TN Constitution § 26 is racist, thats obvious in its wording. My issue is with the current one 's revised section § 26 and how the writers rephrased the section in such a way that they could pass subsequent laws underminding the right and ability of the 'to keep and bear arms' portion of the same section from certain segments of the State withoug coming out and stating it - which would not have stood muster.

Elvis is dead? And a jury of 12 highly informed intelligent citizens - -of the State of California found OJ innocent, I believe he will roast in hell when his time comes but... As we are a nation of laws, he was found innocent and the law is the law.

[The Rabbi]

Oh I agree that the 1835 TN Constitution § 26 is racist, thats obvious in its wording. My issue is with the current one 's revised section § 26 and how the writers rephrased the section in such a way that they could pass subsequent laws underminding the right and ability of the 'to keep and bear arms' portion of the same section from certain segments of the State withoug coming out and stating it - which would not have stood muster.

I am mystified by this statement. How is "with a view to prevent crime" intended to bar certain segments of the state from owning/carrying guns? Unless you mean convicted felons and the like. And I'm fine with that.

[Guest jam]

read the 14th amendment. Even when southern states were segregating how on earth would you come up with an argument for separate but equal when it comes to guns?

I don't think that the TN constitution is racist becuase if the TN state government tried to enact a law outlawing colored people from gun ownership then they would be in direct violation of the 14th amendment and by association the constitution which defined the rights of citizens.

[Guest nraforlife]

Current § 26. Weapons; right to bear arms 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.

1936=5 version XXVI. That the free white men of this State have a right to keep and to bear arms for their common defence.

My conjecture is this. That the rewording of the current verion could have been changed to That the citizens of this State have a right to keep and to bear arms for their common defence and thats all. But the then powers that be felt something had changed in the State that required adding "but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime." So what changed that required this additonal wording other than the slaves being freed, and carpetbaggers trying to take over everything they could?

[The Rabbi]

That's an interesting thesis.

Why don't you go do some research on the constitutional convention that led to its adoption and see if you can discern why they would change the wording like that.

[Marswolf]

I'll try to make this short.

After the Civil War, the Tennessee Constitution had to be changed, and the US Constitution had to be ratified, with amendments, by the state in order for Tennessee to rejoin the Union. Of course the North had argued that no state could legally secede, so I'm not quite sure how an entity that could not leave the Union would have to jump through hoops in order to rejoin what it could not leave. But anyway....

At the time, the old wording disenfranchising the now former slaves obviously had to be changed to bring it in line with the US Constitution. At the same time, "fraternal groups", like the KKK, were fighting the disenfranchisement of the white citizens of the southern states preventing them from freely voting for the candidates of their choice. People tend to forget that part of Reconstruction history.

The clause allowing the legislature to regulate the wearing of arms with a view to prevent crime was aimed mostly at these groups.

If this clause of the Tennessee Constitution is racist, it is not toward the former slaves but instead toward the disenfranchised armed whites who were fighting against Reconstruction.

That's it in a nutshell.

[Guest nraforlife]

...If this clause of the Tennessee Constitution is racist, it is not toward the former slaves but instead toward the disenfranchised armed whites who were fighting against Reconstruction.

That's it in a nutshell.

Ok, you think toward whites and I think more toward the freed slaves. BUT if it is racist its racist regardless of who is getting shafted AND if it is racist should it not then be stricken from the constitution? Bottom line is that from this sorry arse wording we end up getting to the point where we have to have a government issued, and cancellable, license to exercise our rights.

[Fallguy]

Even if it was based on racist reasoning......on it's face it doesn't appear to be that way.

[Marswolf]

I was just speaking as a hypothetical in my racist comment. The point is that it was not racially motivated, it was politically motivated.

Enough tilting at windmills.

[Guest Phantom6]

I was just speaking as a hypothetical in my racist comment. The point is that it was not racially motivated, it was politically motivated.

Enough tilting at windmills.

+1

[midtennchip]

Deleted by Author (double post)

Edited May 30, 2008 by midtennchip

[midtennchip]

Ok, you think toward whites and I think more toward the freed slaves. BUT if it is racist its racist regardless of who is getting shafted AND if it is racist should it not then be stricken from the constitution? Bottom line is that from this sorry arse wording we end up getting to the point where we have to have a government issued, and cancellable, license to exercise our rights.

Well, I guess the lawyer in me just can't stay out of this one. The intent BEHIND the words is not important if the words THEMSELVES are unambiguous. Whether some of the legislators intended to use the clause (i.e., pass more laws) for racist agendas has no bearing on whether the clause itself is unconstitutional. Second, it IS the constitution and by definition the clause is not unconstitutional. Third, the clause (without other laws being passed) does not prevent anybody from carrying a gun.

Fourth, even though the 2A of the US Constitution provides a right, that right is not absolute. It is subject (just like all other Constitutional rights) to reasonable restraints (i.e, can't yell fire in a movie theater). That clause in the TN Constitution is nothing more than a statement specifically stating what that reasonable restraint is. Whether someone thought it gave the government an opening to pass Jim Crow type laws regarding guns at a later date is irrelevant.

[mac12]

Well, I guess the lawyer in me just can't stay out of this one. The intent BEHIND the words is not important if the words THEMSELVES are unambiguous. Whether some of the legislators intended to use the clause (i.e., pass more laws) for racist agendas has no bearing on whether the clause itself is unconstitutional. Second, it IS the constitution and by definition the clause is not unconstitutional. Third, the clause (without other laws being passed) does not prevent anybody from carrying a gun.

Fourth, even though the 2A of the US Constitution provides a right, that right is not absolute. It is subject (just like all other Constitutional rights) to reasonable restraints (i.e, can't yell fire in a movie theater). That clause in the TN Constitution is nothing more than a statement specifically stating what that reasonable restraint is. Whether someone thought it gave the government an opening to pass Jim Crow type laws regarding guns at a later date is irrelevant.

+1 What he said.

[Guest 270win]

The TN Constitution is specifically worded that the state may regulate the 'wearing' of arms. This is totally different than most states that allows the govt to regulate the 'concealing' of arms, such as Louisiana. TN could theoretically only legalize the open carrying of arms or the concealing of arms or as is the case right now no carrying of arms except under certain circumstances. GA, OK, Texas, and Florida have similar clauses.