Lawmaker Says Memphis In May Breaking The Law

[300winmag]

I don't think there are metal detectors for the BBQ event so I would just carry concealed then no one can tell you to leave.

[macville]

The word only doesn't appear in Art 1, Sec 26.

With 39-17-1359, the authority to regulate has been delegated to an individuals, corporations, business entities, and local, state or federal government entities or agents thereof to make the call on their properties.

One, from a English perspective it doesn't have to. The way its worded it means only the state can restrict carry.

Second, 1359 is unconstiututional for two reasons. One, because only the state is supposed to have the power to restrict carry. Second, if the restrict carry it has to be with a view to prevent crime. I have yet to have anyone give me a even remotely good example or reason on how it prevents crime.

[Worriedman]

The word only doesn't appear in Art 1, Sec 26. 

 

With 39-17-1359, the authority to regulate has been delegated to an individuals, corporations, business entities, and local, state or federal government entities or agents thereof to make the call on their properties.

Tennessee Code Annotated § 39-17-1314(a) prohibits a local government from occupying “any part of the field of regulation of the transfer, ownership, possession or transportation of firearms, ammunition or components of firearms or combinations thereof.” This prohibition did not affect the validity of any ordinance or resolution enacted before April 8, 1986 until HB 0995 was signed into law this year, with regard to "Public Areas".

I will restate my point, only the State legislature can occupy that field.  Supreme Court of Tennessee held so as well in Andrews v. State in 1871, we just have those who would hold on to Jim Crow laws that deny the intent of our Constitution to protect the Rights taken by Democrats in 1870, and which have failed to be returned to the People by the GA ever since.
 Per the above referenced SCOTST case:
 

“The Tennessee Supreme Court has recognized that the General Assembly has the authority, under this section of the Constitution, to enact legislation to regulate the wearing and carrying of arms in public. Any such enactment, however, “must be guided by, and restrained to this end, and bear some well defined relation to the prevention of crime, or else it is unauthorized by this clause of the Constitution.”  No mention of City or County, only GA.

Not the same as Private Property, simply public.

Edited May 14, 2015 by Worriedman

[Worriedman]

One, from a English perspective it doesn't have to. The way its worded it means only the state can restrict carry.

Second, 1359 is unconstiututional for two reasons. One, because only the state is supposed to have the power to restrict carry. Second, if the restrict carry it has to be with a view to prevent crime. I have yet to have anyone give me a even remotely good example or reason on how it prevents crime.

A gentle remonstrance:

Article 1 § 26 does not give the GA the Power to "restrict" [deprive (someone or something) of freedom of movement or action] the wearing of arms, only the Power to "regulate" [control or maintain the rate or speed of (a machine or process) so that it operates properly] that act, a subtle nuance perhaps, but a difference nonetheless. One that should be taught to our legislators methinks.

[Oh Shoot]

Tennessee Code Annotated § 39-17-1314(a) prohibits a local government from occupying “any part of the field of regulation of the transfer, ownership, possession or transportation of firearms, ammunition or components of firearms or combinations thereof.” This prohibition did not affect the validity of any ordinance or resolution enacted before April 8, 1986 until HB 0995 was signed into law this year, with regard to "Public Areas"...

 

No, WM, 1314 was amended last year, nuking all grandfathered local ordinances save for three areas of regulation, and carry in parks is not one of them.

 

- OS

Edited May 14, 2015 by Oh Shoot

[Worriedman]

No, WM, 1314 was amended last year, nuking all grandfathered local ordinances save for three areas of regulation, and carry in parks is not one of them.

 

- OS

You are correct, 1314 was amended last year.  HB 0995 signed into law this year cured, or attempted to cure, the last of those areas where local governments could trump State laws, regarding parks and such. 

Correct me if I am wrong, but last year's amendments to 1314 did not include municipality's ability to opt out of the parks issue, or do I err there?

The point I was trying to make, albeit poorly it seems, is that the GA is in fact the only entity which has the power by law to regulate the wearing of arms,  adding in the recent, not necessarily this year's amendment puts words to the effect that municipalities shall not occupy the field of regulation of the wearing of firearms, and that only this year did that become fact regarding parks.

I should have been more clear.

Edited May 14, 2015 by Worriedman

[Oh Shoot]

You are correct, 1314 was amended last year.  HB 0995 signed into last this year cured, or attempted to cure, the last of those areas where local governments could trump State laws, parks and such. 

Correct me if I am wrong, but last year's amendments to 1314 did not include municipality's ability to opt out of the parks issue, or do I err there?

 

No, you are correct about that -- local gummit could still ban park carry by adhering to 1311 only.

 

Knoxville did nothing, so contrary to Mayor's and PD Chief's lamentations this year, it has actually been lawful to carry in parks here for a year already. I think from reading here, there were other places that were in same boat, including some who actually changed their local code after the fact, which of course meant it was no longer legally grandfathered in the first place.

 

- OS

Edited May 14, 2015 by Oh Shoot

[Oh Shoot]

The point I was trying to make, albeit poorly it seems, is that the GA is in fact the only entity which has the power by law to regulate the wearing of arms,  adding in the recent, not necessarily this year's amendment puts words to the effect that municipalities shall not occupy the field of regulation of the wearing of firearms, and that only this year did that become fact regarding parks.

 

Note that cities/counties are still allowed to ban carry by employees and contractors as per 1314, and indeed bar carry by anyone as per 1359.

 

So the state legislature is still allowing local gummit to regulate that -- and one could well debate whether this remaining allowance "by proxy" of a state statute over the wearing of firearms is within the spirit  of the brief statement in the state Constitution.

 

Indeed, the legislature even includes its own digs under the blanket of 1359 "option" rather than a yea or nay specific statute.

 

- OS

Edited May 14, 2015 by Oh Shoot

[300winmag]

I could see the argument in regulating the carry of people without permits prevents crime (I don't agree with it) but I don't see how regulating where people WITH permits prevents crime.

 

Either way, we need to get the legislature to can the whole no gun signs law or just remove the criminal penalty for people with permits and we would have some of the best carry laws in the country.  The funny thing is that Regions Bank has legal no gun signs up at a lot of their branches.  I am going to guess that Regions Bank's contract armed guards and armored truck services are technically breaking the law as far as 39-17-1359 because there is no exemption in that law for armed guard licenses.

[Oh Shoot]

I could see the argument in regulating the carry of people without permits prevents crime (I don't agree with it) but I don't see how regulating where people WITH permits prevents crime.

 

I can't see that argument at all. How is a permit in any way a deterrent to murder or other gun related crime?

 

Indeed, having to have a permit actually creates crime, as anyone without one becomes a criminal, with no ill intent whatsoever.

 

- OS

Edited May 14, 2015 by Oh Shoot

[Worriedman]

I could see the argument in regulating the carry of people without permits prevents crime (I don't agree with it) but I don't see how regulating where people WITH permits prevents crime.

 

I find nothing in the annals of Tennessee from 1796 to 1870 decrying the lack of "permits" to regulate carry of arms.  A Constitutional Right from inception of Statehood to 1870 when the Democrats wanted to deny the freed slaves the ability to bear arms for their protection, (the intent to go armed clause) the first Statist law denying the non criminal freeman that right, and selling it for political gain instead of allowing its enjoyment.

[btq96r]

Tennessee Code Annotated § 39-17-1314(a) prohibits a local government from occupying “any part of the field of regulation of the transfer, ownership, possession or transportation of firearms, ammunition or components of firearms or combinations thereof.”

 

The very first words in 39-17-1314(a) are "Except as otherwise provided by state law."

 

This is the door/loophole/whatever that allows 39-17-1359 to be exercised by cities and counties on government owned property, unless there is a specific law against it.

[Oh Shoot]

The very first words in 39-17-1314(a) are "Except as otherwise provided by state law."

 

This is the door/loophole/whatever that allows 39-17-1359 to be exercised by cities and counties on government owned property, unless there is a specific law against it.

 

Again, 1359 specifically excludes parks type property:

 

"This section shall not apply to the grounds of any public park, natural area, historic park, nature trail, campground, forest, greenway, waterway or other similar public place that is owned or operated by the state, a county, a municipality or instrumentality thereof. The carrying of firearms in those areas shall be governed by § 39-17-1311."

 

Claiming that,  what looks, sounds, smells, and feels like any of these, and indeed have long been referred to as such, and used as such, and/or even have these words in their frigging names, are actually something else just isn't gonna fly in the courts.

 

Also add the additional language in 1311 that includes other rec properties such as certain buildings as further reinforcement that 1359 may well not be able to be applied to them either.

 

- OS

Edited May 15, 2015 by Oh Shoot

[btq96r]

Again, 1359 specifically excludes parks type property:

 

"This section shall not apply to the grounds of any public park, natural area, historic park, nature trail, campground, forest, greenway, waterway or other similar public place that is owned or operated by the state, a county, a municipality or instrumentality thereof. The carrying of firearms in those areas shall be governed by § 39-17-1311."

 

Claiming that,  what looks, sounds, smells, and feels like any of these, and indeed have long been referred to as such, and used as such, and/or even have these words in their frigging names, are actually something else just isn't gonna fly in the courts.

 

Also add the additional language in 1311 that includes other rec properties such as certain buildings as further reinforcement that 1359 may well not be able to be applied to them either.

 

- OS

 

Yeah, tracking on the parks thing in regards to 1359.  The issue at hand wasn't if a lessee of public property can get around that- which even I'm divided on- this was about local governments being able to put gunbuster signs up at government owned buildings, which I think they have the authority to do.

 

Worriedman thinks that it's only the domain of the State government.  Obviously, we disagree. :)

[macville]

Yeah, tracking on the parks thing in regards to 1359.  The issue at hand wasn't if a lessee of public property can get around that- which even I'm divided on- this was about local governments being able to put gunbuster signs up at government owned buildings, which I think they have the authority to do.

 

Worriedman thinks that it's only the domain of the State government.  Obviously, we disagree. :)

 

Again what part of "but the Legislature shall have power" do you not understand? For local government to have any power it would have to say something other than, "the Legislature."

[Worriedman]

 local governments being able to put gunbuster signs up at government owned buildings, which I think they have the authority to do.

 

Worriedman thinks that it's only the domain of the State government.  Obviously, we disagree. :)

If they, (local governments) have the authority to "put up gunbuster signs" on publicly owned buildings, do they have the same authority to put those signs up on public roads "they" constructed and maintain?  They (local governments) control what you can operate on these roads, which direction and how fast or slow you can go, when you can and can not go, they (local governments) can stop you or let you move forward at their discretion, wish want or desire.

They (local governments) have "right of ways" and "easements" on each piece of so called "private property" for their "public utilities", should they (local governments) then have the juice to demand that any individual can be denied the ability to wear arms on "their" controlled property even if it is within the fenced area you call your "own" back yard?  (As a side note, you pay "property tax" on the area that is an easement so marked on your deed of land, but they (local governments) can dig it up and destroy whatever you might have planted on it at any time, the individual has no control of that even though you paid for the area of land so described and are in fact charged taxes for "owning" it each year).

Edited May 15, 2015 by Worriedman

[300winmag]

If I couldn't get fined over a no gun sign at a local government office, I'd say they could put up all the no gun signs they wanted because I would conceal and ignore those signs.  Since we can get fined over those signs in TN, I have a problem with local governments being able to hassle me after I have had my background checked and paid the money for a handgun carry permit.

[btq96r]

Again what part of "but the Legislature shall have power" do you not understand? For local government to have any power it would have to say something other than, "the Legislature."

 

I understand it...but it's clear they set up a system to delegate that power to local governments when it comes to their buildings with the wording of the laws.

 

If they, (local governments) have the authority to "put up gunbuster signs" on publicly owned buildings, do they have the same authority to put those signs up on public roads "they" constructed and maintain?  They (local governments) control what you can operate on these roads, which direction and how fast or slow you can go, when you can and can not go, they (local governments) can stop you or let you move forward at their discretion, wish want or desire.

They (local governments) have "right of ways" and "easements" on each piece of so called "private property" for their "public utilities", should they (local governments) then have the juice to demand that any individual can be denied the ability to wear arms on "their" controlled property even if it is within the fenced area you call your "own" back yard?  (As a side note, you pay "property tax" on the area that is an easement so marked on your deed of land, but they (local governments) can dig it up and destroy whatever you might have planted on it at any time, the individual has no control of that even though you paid for the area of land so described and are in fact charged taxes for "owning" it each year).

 

Laws on the books, and in the case of the home US Supreme Court rulings, protect firearm ownership in the home. 

As to the roads, I don't know if any part of TCA that has that authority delegated for pedestrians, but personal vehicles are pretty well covered by the recent "guns in cars" bill.

[macville]

I understand it...but it's clear they set up a system to delegate that power to local governments when it comes to their buildings with the wording of the laws.

 

What are you talking about? Are you talking about 1359 posting law? If so, you are assuming that 1359 is constitutional, but if you look at the language you see that it's not at all. Remember, just because a law is passed doesn't make it Constitutional. The only reason 1359 is still standing is that no one has sued about it.

[Garufa]

Remember, just because a law is passed doesn't make it Constitutional. The only reason 1359 is still standing is that no one has sued about it.

 

Ergo, it is the law....unless one has really deep pockets and a desire to ruin their lives.

Edited May 15, 2015 by Garufa

[btq96r]

What are you talking about? Are you talking about 1359 posting law? If so, you are assuming that 1359 is constitutional, but if you look at the language you see that it's not at all. Remember, just because a law is passed doesn't make it Constitutional. The only reason 1359 is still standing is that no one has sued about it.

 

I think it would pass a challenge in state court, and at appeal to the US Supreme Court.

 

If you think it would go down, feel free to file suit.

[Oh Shoot]

I think it would pass a challenge in state court, and at appeal to the US Supreme Court.

 

I don't see any way the Supremes would see it as having standing to be heard there.

 

Even if the right to "bear" is incorporated to the states, all the details about continuing degrees of "reasonable" legislation of that will be as ongoing as is the incorporated right to "keep", which of course is still incredibly limited by a number of states.

 

- OS

[btq96r]

I don't see any way the Supremes would see it as having standing to be heard there.

 

Even if the right to "bear" is incorporated to the states, all the details about continuing degrees of "reasonable" legislation of that will be as ongoing as is the incorporated right to "keep", which of course is still incredibly limited by a number of states.

 

- OS

 

It would really depend on the lower courts.  They took the McDonald case after it had been pretty much decided.  Some of that was probably to hear it with post-Heller jurisprudence.

[Worriedman]

I understand it...but it's clear they set up a system to delegate that power to local governments when it comes to their buildings with the wording of the laws.

 

 

We will just have to keep chipping away, handgun carry permits, guns in bars, guns in trunks, guns in cars without permits...guns in our own tax supported buildings next.

The next suit may ask the GA to prove 39-17-1307 reduces crime, and per the Supreme Court of Tennessee, any "law" regulating the wearing of arms “must be guided by, and restrained to this end, and bear some well defined relation to the prevention of crime, or else it is unauthorized by this clause of the Constitution.” we have that ruling, now we just need to make the GA admit that keeping law abiding citizens from carrying firearms for their own protection does not reduce crime.

We shall see...
 

Edited May 16, 2015 by Worriedman

[macville]

I think it would pass a challenge in state court, and at appeal to the US Supreme Court.

 

If you think it would go down, feel free to file suit.

 

You honestly have no clue what you are talking about. It wouldn't go to the US Supreme court because it's state Constitution issue. The max court would be the TN Supreme Court, unless there was some crazy standing that a lawyer came up with (though, I would argue that the 2d amendment should overrule the state constitution since other rights in the bill of rights have been incorporated.)

 

So let me challenge you with the same question I ask everyone who I talk with about our state gun laws. How does 1359 prevent crime? How does allowing local government to restrict carry prevent crime? Because even if the constitution allowed for local control, the laws would still have to be "with a view to prevent crime." So how does allowing local governments and business in general post with a legally enforceable sign against permit holders prevents crime?

 

The only reason 1359 is still standing is because no one has come up with the money to sue over it. There are a crap load of laws like this that are totally unconstitutional, but stand because people don't have a crap load of money to go through the system to prove them unconstitutional.