Oppression By The TN General Assembly On The Right To Keep, Bear & Wear Arms [Op-ed]

Two Centuries Of Oppression By The State Of Tennessee On The People’s Right To Keep, Bear And Wear Arms

Image Credit: Tennessee State Library and Archives

By C. Richard Archie (West TN Director, Tennessee Firearms Association) –

From our inception as the state of Tennessee in 1796, it was promised in our original Declaration of Rights, Article 11 Section 26^th. “That the free men of this State have a right to keep and to bear arms for the common defense.”  This enumerated right which our Founders felt important enough to include in boldface terms, has been trampled with impunity by the General Assemblies of Tennessee with astounding regularity from the time that it was written in 1796 to the present day – over 2 and a quarter centuries.

The United States was won by sacrifice of blood, treasure and the lives of its Patriots.  That effort was in large part due to the soon to be Tennesseans at the Battle of Kings Mountain, which was still part of North Carolina in 1780.  Were it not for the action of young men with their personal long guns, knives and hatchets, we might very well still be a British Protectorate.

Our ancestors who were led by patriots including John Sevier, William Campbell and Isaac Shelby hunted down and killed Major Patrick Ferguson, whose British orders had been to “march over the mountains, hang their leaders, and lay their country to waste with fire and sword.”  Shortly thereafter, the lands that had been part of North Carolina were separated from that state and became Tennessee.  Tennessee’s 1796 Constitution was declared by Thomas Jefferson to be “the least imperfect and most republican of the documents” he had seen from the various States.

Being affirmed as a state by Congress in 1796, Tennessee’s General Assembly soon went about the business of denying the right of the average citizen to keep, bear and wear arms.  In 1801 the legislature passed an act which read thus:

“An Act for the Restraint of Idle and Disorderly Persons § 6. Be it enacted, That if any person or persons shall publicly ride or go armed to the terror of the people, or privately carry any dirk, large knife, pistol or any other dangerous weapon, to the fear or terror of any person, it shall be the duty of any judge or justice, on his own view, or upon the information of any other person on oath, to bind such person or persons to their good behavior, and if he or they fail to find securities, commit him or them to jail, and if such person or persons shall continue so to offend, he or they shall not only forfeit their recognizance, but be liable to an indictment, and be punished as for a breach of the peace, or riot at common law.”

The Tennessee Legislature enacted this 1801 statute in disregard of the Tennessee Constitution of 1796 Article 10 Section 4^th which said:   

“The declaration of rights hereto annexed is declared to be a part of the constitution of this State, and shall never be violated on any pretence whatever. And to guard against transgressions of the high powers which we have delegated, we declare that everything in the bill of rights contained, and every other right not hereby delegated, is excepted out of the general powers of government, and shall forever remain inviolate.” 

That very important clause lives today in the current Tennessee Constitution as Article 11 Section 16, though the General Assembly seems not to recognize it.

The War of 1812 set that Act of 1801 on its heels as Tennessee once again needed its armed citizens to stand against tyranny.  The fledgling State placed a call for Volunteers to go with General Jackson to Alabama to fight the Red Stick Creeks.  Coffee, Carroll, Houston, Crockett and others answered, with their own firearms and they not only won that day at Horseshoe Bend, but they marched to Chalmette and helped to defeat England at the Battle of New Orleans, a victory that was instrumental in preserving the Republic.

Shortly after using the blood of its citizen soldiers to survive that trial, the General Assembly once more set about placing strictures on the citizens of Tennessee with respect to bearing arms and in disregard of Article 11, Section 16.  

In 1821 those in the Tennessee Legislature passed Tenn. Pub. Acts 15-16, which was titled “An Act to Prevent the Wearing of Dangerous and Unlawful Weapons,” ch. 13.  That act provided that “each and every person so degrading himself, by carrying a dirk, sword cane, French knife, Spanish stiletto, belt or pocket pistols . . . shall pay a fine of five dollars for every such offence.”

Further restrictions were fabricated by those in the Tennessee Legislature in 1871 when they enacted Tenn. Pub. Acts 81, An Act to Preserve the Peace and to Prevent Homicide, ch. 90, § 1. In that enactment they stated “That it shall not be lawful for any person to publicly or privately carry a dirk, sword cane, Spanish stiletto, belt or pocket pistol or revolver, other than an army pistol, or such as are commonly carried and used in the United States army, and in no case shall it be lawful for any person to carry such army pistol publicly or privately about his person in any other manner than openly in his hands.”

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The Tennessee Supreme Court took exception to the newly minted law and the Amended Constitution of 1871 which purported to give to the Legislature the power by law to “to regulate the wearing  of arms with a view to prevent crime.”  The Tennessee Supreme Court addressed the Legislature’s conduct in its decision in Andrews v. State, 50 Tenn. 165, 181 (1871) when it ruled:

“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…the right to keep arms, necessarily involves the right to purchase them, to keep them in a state of efficiency for use, and to purchase and provide ammunition suitable for such arms, and to keep them in repair. And clearly for this purpose, a man would have the right to carry them to and from his home, and no one could claim that the Legislature had the right to punish him for it, without violating this clause of the Constitution.”

Research of the laws of Tennessee and their enactments evidence that there is not a single letter measure of empirical data put forth, as required by that case, by the Tennessee Legislature, by the Tennessee Department of Safety, by the Tennessee Sheriff’s Association, or the Tennessee Chiefs of Police Association or any other entity to establish a “well defined relation to the prevention of crime” to support the legislature’s recurring infringements of our rights.    What does exist, as demonstrated repeatedly this year by the Department of Safety’s “Legislative Director”, Elizabeth Stroeker, is nothing more than to offer emotional “feelings”.  The “feeling” of an administrative agency’s representatives or the fabricated “concerns” of certain legislators are not constitutionally mandated facts with respect to the impairments of a constitutionally protected right.   These “feelings” lack constitutional relevance when it comes to gun free zones, what categories of arms an individual can carry, limiting the age at which one can bear or purchase arms, or imposing requirements to obtain a “permit” to carry a firearm. 

Tennessee’s disregard of the state constitutional right has become even more subject to constitutional challenge with the United States Supreme Court’s decision in the case of McDonald v. City of Chicago in 2010.  In that case, the Court held that the 2^nd Amendment, through the incorporation doctrine it had created under the 14^th Amendment, now fully applied to the states.  Thus, the Court has now said that to the extent a state constitution might allow more room to regulate or impair the firearms rights of its citizens, the 2^nd Amendment’s “shall not be infringed” language renders the state’s more lenient constitutional standard moot as a matter of federal law. 

There is no evidence that the State’s tendency to impose restrictions or its refusal to remove infringements on the rights to keep, bear and wear arms were ever based on a “well defined relation[s] to the prevention of crime”. 

Since the McDonald decision in 2010, that permission provision of the state constitution has been rendered moot by the 2^nd Amendment’s ‘shall not be infringed” mandate.  Yet, as we have seen in each year since the Court’s 2010 McDonald decision, the Tennessee Legislature refuses to repeal laws that cause infringements and it is more than willing to offer and enact laws that create all new categories of infringements, such as as Governor Bill Lee’s 2021 “permitless carry” law. Good restorative legislation is prevented from being considered under cover of ”doing away” with new restrictions included in that latest version of Tennessee gun laws.