Lawmaker Says Memphis In May Breaking The Law

[btq96r]

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...
 

 

I think continuing to chip away is the right way to go.  The turnaround we've had nationally, and statewide within the last 10-15 years is no small thing.  From the AWB expiring, to the Heller and McDonald cases, they've helped fuel the fire at the state level for all those victories you list.  Every state that enacts Constitutional Carry and Campus Carry just puts more pressure on Tennessee to do the same.

 

In a lawsuit, I don't think the Andrews case would be as helpful as you believe it to be.  Here are a few other parts of it that can be used against us if it were ever to become the linchpin in a case.  To me it looks like "with a view to prevent crime" would be given a wide latitude if it was ever up for review.  I can't see a requirement to prove that it reduces crime since proving a negative and other philosophical burdens of proof aren't compatible with legal burdens of proof.

 

____________________

 

But the power is given to regulate, with a view to prevent crime.  The enactment of the Legislature on this subject, 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.

 

It is insisted, however, by the Attorney General, that, if we hold the Legislature has no power to prohibit the wearing of arms absolutely, and hold that the right secured by the Constitution is a private right, and not a public political one, then the citizen may carry them at all times and under all circumstances.  This does not follow by any means, as we think.

 

While the private right to keep and use such weapons as we have indicated as arms, is given as a private right, its exercise is limited by the duties and proprieties of social life, and such arms are to be used in the ordinary mode in which used in the country, and at the usual times and places.  Such restrictions are implied upon their use as are thus indicated.

 

Therefore, a man may well be prohibited from carrying his arms to church, or other public assemblage, as the carrying them to such places is not an appropriate use of them, nor necessary in order to his familiarity with them, and his training and efficiency in their use.  As to arms worn, or which are carried about the person, not being such arms as we have indicated as arms that may be kept and used, the wearing of such arms may be prohibited if the Legislature deems proper, absolutely, at all times, and under all circumstances.

____________________

 

Admitting the right of self-defense in its broadest sense, still on sound principle every good citizen is bound to yield his preference as to the means to be used, to the demands of the public good; and where certain weapons are forbidden to be kept or used by the law of the land, in order to the prevention of crime-a great public end-no man can be permitted to disregard this general end, and demand of the community the right, in order to gratify his whim or willful desire to use a particular weapon in his particular self-defense.  The law allows ample means of self-defense, without the use of the weapons which we have held may be rightfully proscribed by this statute.  The object being to banish these weapons from the community by an absolute prohibition for the prevention of crime, no man's particular safety, if such case could exist, ought to be allowed to defeat this end.  Mutual sacrifice of individual rights is the bond of all social organizations, and prompt and willing obedience to all laws passed for the general good, is not only the duty, but the highest interest of every man in the land.

 

 

 

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.)

 

And that's why I think it could go to SCOTUS....someday 

 

With McDonald incorporating the 2nd Amendment, state gun laws are now Constitutional issues.  Not sure if SCOTUS would take the case in our example, or that the outcome would be in our favor, but like you, I think the argument could be made to get it there.  I would like to see more federal case law to help us out with standing before it all happened. 

 

 

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?

 

I agree that 1359 doesn't prevent crime.  But, since it was written with a view (albeit a illogical one) to prevent crime, it meets the requirement of the TN Constitution.

 

As said above, I think "with a view to prevent crime" would be widely interpreted as laid out in the Andrews case, especially by this part:

...in order to the prevention of crime-a great public end-no man can be permitted to disregard this general end, and demand of the community the right, in order to gratify his whim or willful desire to use a particular weapon in his particular self-defense.

Edited May 16, 2015 by btq96r

[300winmag]

We just need to quietly change the whole no guns sign law and have it changed from a weapons charge to a trespassing issue.  Most other states treat no gun signs as a trespassing situation when people with guns do not leave when asked to leave.  This is how the safe commute law is set up.  You can be asked to remove your car with a gun in it from any property, but it can only turn into a trespassing issue if you fail to leave when asked.  It is not a weapons charge to have the gun in your car. 

 

If you read the law as it is written, even armored car services or contract guard services are breaking the law every time they service a location with a no guns sign, such as Regions Bank or a city of Memphis government building.   

[Oh Shoot]

....

 

With McDonald incorporating the 2nd Amendment, state gun laws are now Constitutional issues. ...

 

As I have already pointed mentioned, it only incorporated the right to "keep". "Bear" was not ruled on.

 

With some cases seemingly working their way here and there regarding the "may" vs "shall" issue remaining in a few states,  perhaps it will have to rule on that part too ere long. But almost certainly it won't go past that permitting process one way or the other itself. SCOTUS just isn't going to rule that you can pack heat anywhere in any state period, no way. Indeed, had even that "universal permit reciprocity" bill passed a couple of years ago, I feel sure they would have struck it down.

 

- OS

Edited May 16, 2015 by Oh Shoot

[btq96r]

As I have already pointed mentioned, it only incorporated the right to "keep". "Bear" was not ruled on.

 

I think you're wrong on that point, brother.  From the opinion of the court in McDonald.

 

Held: The judgment is reversed, and the case is remanded. 567 F. 3d 856, reversed and remanded. JUSTICE ALITO delivered the opinion of the Court with respect to Parts I, II–A, II–B, II–D, III–A, and III–B, concluding that the Fourteenth Amendment incorporates the Second Amendment right, recognized in Heller, to keep and bear arms for the purpose of self-defense.  Pp. 5–9, 11–19, 19–33.

 

No mention of it only dealing with "keep" or separating it from "bear."  The 2nd Amendment, in full, was incorporated.

[macville]

I agree that 1359 doesn't prevent crime.  But, since it was written with a view (albeit a illogical one) to prevent crime, it meets the requirement of the TN Constitution.

 

As said above, I think "with a view to prevent crime" would be widely interpreted as laid out in the Andrews case, especially by this part:

...in order to the prevention of crime-a great public end-no man can be permitted to disregard this general end, and demand of the community the right, in order to gratify his whim or willful desire to use a particular weapon in his particular self-defense.

 

You still didn't answer my question. HOW does preventing permit holders prevent crime? That is the standard that the view would have to meet. No one I have found has given a "how" and this is what should be pushed in a legal sense. In fact, when you read article about places that use 1359 to ban, they NEVER mention crime. The reason is always, "we don't like guns" or "we are afraid a gun will accidentally go off." Those reasons don't mind the standard of preventing CRIME. 1359 was written with a view of property rights, but certainly not crime. You also have to remember that in a court case today, it's easily provable with TN DOS's own stats on permit holder that the laws don't stop crime and that permit holders are not the ones committing crimes.

 

I find it funny that in that court ruling the court contradicted itself (which is not at all surprising though.) It held that there is a high standard with a view to prevent crime and then totally ignored that and said the legislature can do whatever it wants. I will read the entire ruling though to make sure I get the proper context.

[tnhawk]

I didn't get any BBQ sauce on my P938!

[Worriedman]

Therefore, a man may well be prohibited from carrying his arms to church, or other public assemblage, as the carrying them to such places is not an appropriate use of them, nor necessary in order to his familiarity with them, and his training and efficiency in their use.  As to arms worn, or which are carried about the person, not being such arms as we have indicated as arms that may be kept and used, the wearing of such arms may be prohibited if the Legislature deems proper, absolutely, at all times, and under all circumstances.

There is that sticky State legislature thingy again, our GA has determined that wearing arms in church did NOT increase crime, ergo it was unconstitutional, and so now we can wear our arms IN church.

 

[macville]

There is that sticky State legislature thingy again, our GA has determined that wearing arms in church did NOT increase crime, ergo it was unconstitutional, and so now we can wear our arms IN church.

 

 

Would be good to look at other states that have constitutional carry and show that it doesn't increase crime.

[btq96r]

You still didn't answer my question. HOW does preventing permit holders prevent crime?

 

I answered it with my first sentence...I agree that 1359 doesn't prevent crime.

 

That is the standard that the view would have to meet. No one I have found has given a "how" and this is what should be pushed in a legal sense. In fact, when you read article about places that use 1359 to ban, they NEVER mention crime. The reason is always, "we don't like guns" or "we are afraid a gun will accidentally go off." Those reasons don't mind the standard of preventing CRIME. 1359 was written with a view of property rights, but certainly not crime. You also have to remember that in a court case today, it's easily provable with TN DOS's own stats on permit holder that the laws don't stop crime and that permit holders are not the ones committing crimes.

 

The standard from our State Constitution is "with a view to prevent crime."  Key words being "with a view to."  All they need under that is the aim or intention.  We can argue all day if it really does prevent crime, but the view to prevent doesn't have to conform to our logic.

 

Here's how they would argue that 1359 is the legislature regulating the wearing of firearms with a view to prevent crime.  Look at how they set the table for all of Title 39 with the General Provisions.

 

 

Title 39  Criminal Offenses  

Chapter 11  General Provisions

 

39-11-101.  Objectives of criminal code. 

  The general objectives of the criminal code are to:
 

   (1) Proscribe and prevent conduct that unjustifiably and inexcusably causes or threatens harm to individual, property, or public interest for which protection through the criminal law is appropriate; 

 

 

So, the argument would follow that whatever is placed inside Title 39 is meant to prevent crime, and has a need in order to serve public interest.

 

Then you look at the types of "catch all" phrasing that is in most bills passed.  Here is a version of the farthest back change to 1359 I can find from 2000 (the digital archives only go back to 1997, or I'd probably link the 1996 version). Note the words at the end that serve as its justification: the public welfare requiring it.

 

 

I find it funny that in that court ruling the court contradicted itself (which is not at all surprising though.) It held that there is a high standard with a view to prevent crime and then totally ignored that and said the legislature can do whatever it wants. I will read the entire ruling though to make sure I get the proper context.

 

It's some interesting stuff.  Here is the link I was using.

http://www.constitution.org/2ll/bardwell/andrews_v_state.txt

Edited May 16, 2015 by btq96r

[Oh Shoot]

I think you're wrong on that point, brother.  From the opinion of the court in McDonald.

 

Held: The judgment is reversed, and the case is remanded. 567 F. 3d 856, reversed and remanded. JUSTICE ALITO delivered the opinion of the Court with respect to Parts I, II–A, II–B, II–D, III–A, and III–B, concluding that the Fourteenth Amendment incorporates the Second Amendment right, recognized in Heller, to keep and bear arms for the purpose of self-defense.  Pp. 5–9, 11–19, 19–33.

 

No mention of it only dealing with "keep" or separating it from "bear."  The 2nd Amendment, in full, was incorporated.

 

Read deeper. Only the right to keep firearms in the home is a blanket sanction. And even this does not of course preclude all laws regarding which weapons and manner of licensing to do so.

 

"Carrying" of weapons in public, the true meaning of "bearing" them, was still left to the states. There was no general admission that "bearing" weapons outside the home is within the scope of the decision, and several times in both the majority opinion and individual assenting opinions, the matter is left open as to the degree of regulation, echoing what Scalia had said even in Heller, that the exact scope of conduct permitted would have to be determined by future courts.

 

Which is why most states still require a permit to conceal carry in public, and why there are still "may issue" states, which in most cases is still "will not issue".

 

The federal court decision in Kali:

 

https://www.nraila.org/articles/20141112/california-one-step-closer-to-shall-issue

 

or one like it, will have to get to SCOTUS to at least see if "may issue" becomes the law of the land. And future ones will have to do same to include non-permitted carry.

 

Until then, the right to "bear" is only incorporated as a general tenet, but not in actuality, as is possession in the home.

 

- OS

[macville]

The standard from our State Constitution is "with a view to prevent crime."  Key words being "with a view to."  All they need under that is the aim or intention.  We can argue all day if it really does prevent crime, but the view to prevent doesn't have to conform to our logic.

 

Here's how they would argue that 1359 is the legislature regulating the wearing of firearms with a view to prevent crime.  Look at how they set the table for all of Title 39 with the General Provisions.

 

 

Title 39  Criminal Offenses  

Chapter 11  General Provisions

 

39-11-101.  Objectives of criminal code. 

  The general objectives of the criminal code are to:
 

   (1) Proscribe and prevent conduct that unjustifiably and inexcusably causes or threatens harm to individual, property, or public interest for which protection through the criminal law is appropriate; 

 

 

So, the argument would follow that whatever is placed inside Title 39 is meant to prevent crime, and has a need in order to serve public interest.

 

 

Just because it's placed in Title 39 doesn't mean it's constitutional. That's the issue in your logic. They can say that something will prevent crime, but if they can not articulate HOW it will prevent crime, it's unconstitutional. Yes, it will take a court to say that, but you and I know that it is. Heck, they could pass a law that says we can't wear silver guns. We all know that would be unconstitutional because there's no way restricting silver guns only would prevent crime. Don't accept gun control laws in TN as constitutional unless they can say, "this is how it will prevent crime." The problem with your argument is that I can't find one person who can explain how their aim or intention is going to actually prevent crime. That's why it's unconstitutional.

 

Ask this, how does preventing people, who have gone background checks and proven they are pretty dang law abiding, from going into a store/park/etc prevent crime? This logic fits perfectly with the 1871 case.

Edited May 16, 2015 by macville

[macville]

We honestly need to find the money somewhere to take this to the courts to see what might happen. We have nothing to lose since they are already restricting our rights.

[Worriedman]

Lets see, last year they threw out the knife portion of 39-17-1307, was it suddenly failing to reduce crime, or had it been simply a piece of a Jim Crow law since 1870 prior to being nuked by the GA?  Worked for 144 years, but I guess Gore's Global Warming or increased ozone changed its effectiveness.

 

The prevailing opinion in Andrews v. State in 1871 said:

 

“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.”

That does not say anything about close to, might, or could be, says it MUST and BEAR SOME WELL DEFINED REALATION, no ambiguity in the prescription.

All we need to do is remove some statist and insert some Constitutionalists into the GA and we can get this done.

From 1796 to 1870 the Tennessee Constitution recognized the Right of the People to keep and bear arms.  We simply need to go back to that original intent.

Edited May 17, 2015 by Worriedman

[btq96r]

Okay...if you guys think you can take 1359 to court and win, go ahead.  You obviously think you have the right of it, so why not go for it?  I'll be hoping I'm wrong, and if you win I'll buy you lunch.  If you loose, I'll buy you lunch after you loose to show there are no hard feelings.

 

OS- I read Heller as the entire 2A was incorporated, and once we get a federal definition of "bear" it will be automatically enforceable on the states.

[Oh Shoot]

...

OS- I read Heller as the entire 2A was incorporated, and once we get a federal definition of "bear" it will be automatically enforceable on the states.

 

Well, Heller only for federal enclaves, McDonald for the rest of us, but they're essential identical in outcome.

 

We don't have a precise definition of "keep" either, only that you may keep "some" firearm or other, under "some" rules imposed by the state, city, or county. But at least that basic tenet to have some sort of loaded shootin iron is confirmed.

 

But SCOTUS only used "bear" in the sense of picking up and using a firearm in your home, they did not clearly incorporate it as a right to carry a heater in the general public.

 

- OS

Edited May 18, 2015 by Oh Shoot

[300winmag]

It is my understanding that Andrews Vs State basically affirmed that Tennessee could pretty much prohibit the carrying of weapons in public because it was a part of the whole 'prevent crime' aspect.  I don't know if that is the best court case to help us.

[Worriedman]

It is my understanding that Andrews Vs State basically affirmed that Tennessee could pretty much prohibit the carrying of weapons in public because it was a part of the whole 'prevent crime' aspect.  I don't know if that is the best court case to help us.

They (legislators) have to prove any law they pass is preventing crime if it "regulates" the wearing of arms.  If there is no empirical data to support that, the Supreme Court says it is "unconstitutional".  Now, if we could simply find legislators who would honor their oath:

Each member of the Senate and House of Representatives, shall before they proceed to business take an oath or affirmation to support the Constitution of this State, and of the United States and also the following oath: I .......... do solemnly swear (or affirm) that as a member of this General Assembly, I will, in all appointments, vote without favor, affection, partiality, or prejudice; and that I will not propose or assent to any bill, vote or resolution, which shall appear to me injurious to the people, or consent to any act or thing, whatever, that shall have a tendency to lessen or abridge their rights and privileges, as declared by the Constitution of this State.