Tennessee Sued On Claims That New Permitless Carry Law Violates U.S. Constitution

Within Days Of The Governor Signing His Permitless Carry Legislation Into Law, The State Of Tennessee Was Sued In Federal District Court Based On A Violation Of The 2nd And 14th Amendments Of The U.S. Constitution, Denying Some 18-20 Year Old Citizens From Being Able To Exercise The Right To Keep And Bear Arms. 

Photo Credit: Clinger Holsters / CC

Published April 29, 2021

By John Harris [Tennessee Firearms Association] –

Tennessee Firearms Association raised a number of concerns prior to the passage of the Governor’s permitless carry legislation (HB786/SB765). 

One of the concerns is that it needlessly created a violation of the 2nd and 14th Amendments to the United States Constitution because it denied some 18-20 year old citizens from being able to exercise the right, as guaranteed by the 2nd Amendment, to keep and bear arms. 

 Within days of the Governor’s signing this legislation into law, the state of Tennessee was sued in federal district court based on that exact claim. 

In the matter of Caleb Bassett, et al. v. Herbert Slatery, et al, E.D. Tenn, 3:21-cv-152, filed on April 22, 2021, three Tennesseans and the Firearms Policy Coalition, Inc., brought an action in the federal district court in East Tennessee claiming that the Governor’s law violates the constitutionally protected civil rights of these individuals and members of the FPC.  

The plaintiffs claim the following: 

• Although Tenn. Code Ann. § 39-17-1308 establishes the possession of either an enhanced handgun carry permit or concealed handgun carry permit as a defense to the general prohibition to carrying firearms—and by extension an 
  avenue to the legal carriage of a loaded handgun in public—Defendants’ active enforcement of the State’s prohibitions against adults under the age of 21 bars a broad class of persons, including Plaintiffs Bassett, Beeler, and Ogle, 
  and all those who are similarly situated, from obtaining either permit to carry a handgun, and therefore categorically blocks them from the sole means of access for the lawful carry of a loaded handgun on their person in public, in 
  direct violation of the Second and Fourteenth Amendments to the United States Constitution. 
   
• Throughout American history, arms carrying was a right available to all peaceable citizens. Sometimes, it was even a duty. See e.g., David B. Kopel & Joseph G.S. Greenlee, The Second Amendment Rights of Young Adults, 43 S. Ill. U. L.J. 495, 573–577, 587 (2019) (listing illustrations of statutes requiring arms carrying by members of the general public to travel, work in the fields, work on roads and bridges, attend church, and attend court). 

• Moreover, young adults between 18 and 21 were fully protected by the Second Amendment at the time of its ratification. Hundreds of statutes from the colonial and founding eras not only permitted but required 18-to-20-yearolds to keep and bear arms. See generally The Second Amendment Rights of Young Adults, 43 S. Ill. U. L.J. at 573–577, 587. 

• At the time of the Founding, peaceable individuals 18 and older had the right to carry arms for self-defense and other lawful purposes. The tradition of disarming violent and dangerous persons was practiced from medieval England through mid-20th century America, but there is no tradition of disarming nonviolent people like Plaintiffs Bassett, Beeler, and Ogle. See generally Joseph G.S. Greenlee, The Historical Justification for Prohibiting Dangerous Persons from Possessing Arms, 20 WYO. L. REV. 249 (2020). 

• Yet, Tennessee law erects an absolute barrier to the exercise of this right for Plaintiffs Bassett, Beeler, and Ogle, and all similarly situated 18-to-20-yearold citizens, by rendering them statutorily ineligible for the permits that the State mandates to lawfully carry a loaded handgun within its borders, and Defendants actively administer, implement, and enforce this statutory barrier pursuant to Tenn. Code Ann. §§ 39-17-1351(b)(1), 39-17-1366(b)(3), and 39- 
  17-1307, and their related regulations, policies, practices, and customs designed to propagate the scheme denying the exercise of this fundamental right. And they will continue to so deny such individuals under the new PC 108 Exception when it becomes effective. 

Based on the clams set forth in the Complaint, the Plaintiffs claim that the Governor’s hallmark legislation as well as both of Tennessee’s existing statutes that address the enhanced permit as well as the concealed permit are unconstitutional violations of the rights protected by the 2nd and 14th Amendments. 
 
The Plaintiffs seek a declaration by the federal court finding that their rights have been violated by the state of Tennessee.  

The Plaintiffs seek a preliminary and permanent injunction against the state of Tennessee to prohibit it from enforcing the 18-20 year old restrictions found in the Governor’s bill as well as the existing permit laws.  

The Plaintiffs also seek an award of litigation expenses and attorney’s fees which, if awarded, will be a burden placed on the taxpayers of Tennessee for the Governor’s choice and the acts of the Legislature to knowingly infringe the constitutionally protected rights of some Tennesseans. 
 
This type of litigation frequently has been brought in other jurisdictions like California and the northeast that some see as anti-Second Amendment.  

However, it is likely that we will increasingly see this type of litigation in the state of Tennessee as the laws here that seek to regulate the rights of citizens to keep, bear and wear arms are increasingly recognized as violating the simple prohibition of the 2nd Amendment’s “shall not be infringed” clause.