Why Is The TBI Opposing Your 2nd Amendment Rights?

Image Credit: capitol.tn.gov

By John Harris [Tennessee Firearms Association] –

There is a serious problem in Tennessee. A problem that occurs because taxpayer funded individuals and departments that are in the administration are using tax dollars to lobby against your constitutionally protected rights.

These administrative agencies are under Bill Lee’s control as governor. Presumably, they speak for him. But, as the “administration” their job is to implement and “administer” the public policy choices that the Legislature makes. It’s called separation of powers. It is also called “accountability” to the voters.

So here is an example of the abuses by the Tennessee Bureau of Investigation.

On March 9, 2022, Rep. Rusty Grills presented HB2509 to the House Criminal Practices Subcommittee. The intent of the bill is simple. It would be to remove a short barrel rifle and a short barrel shotgun as a prohibited firearm under Tennessee law.

As part of the hearing, a representative from the Tennessee Bureau of Investigation spoke against the bill on behalf of that administrative agency. It is important when evaluating the issue of whether Tennessee’s administrative agencies are actively working to suppress or infringe your constitutionally protected rights to see and be aware of what they are, as “taxpayer funded” advocates, telling the Legislators. It is also important to note when Representatives like Jerry Sexton and Bruce Griffey stand up to these administration representatives and try to push them back into their limited function as those tasked with “administering” not making the law.

In this video, which has been edited to remove statements from Rep. Hardaway and the committee’s own attorney, contains the testimony from the Tennessee Bureau of Investigation and then discussions from first Rep. Bruce Griffey and then Rep. Jerry Sexton pushing back against the TBI’s opposition to this bill.

Video from House Criminal Justice Subcommittee – March 9, 2022

Note in the video the statements from TBI. They are opposing the fact that this bill’s intent is to remove a short barrel rifle or shotgun from the list of prohibited weapons in Tennessee. TBI makes the claim that the US Supreme Court in the Miller decision concluded that short barrel shotguns are “not protected by the 2nd Amendment since 1939”. Well, that does not appear to be true if you look at what happened in Miller.

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Miller was a case considered by the Supreme Court shortly after the passage of the National Firearms Act in 1934. The NFA did not make machine guns, short barrel rifles or shotguns illegal. The NFA said if a civilian wants to own one then they have to pay a $200 federal tax. The NFA is a tax act because, if you read the Congressional debates, Congress knew they could not ban civilian ownership under the 2nd Amendment of these items but they felt that they could tax the ownership or transfer of them.

In Miller, two men had been criminally charged with possession of a short barrel shotgun (they hacksawed the barrel) for which they had not paid the $200 tax. Had they paid the tax, there would have been no case. When the criminal case went to the federal district court, the judge threw the prosecution’s case out based on a finding that these weapons are protected by the 2nd Amendment and thus could not be taxed. The government appealed to the United States Supreme Court.

The Supreme Court DID NOT rule that short barrel shotguns are not protected by the 2nd Amendment in that case.  Instead, the Court, citing a TENNESSEE SUPREME COURT DECISION, concluded that the evidence before it was inadequate to determine whether short barrel shotguns are or are not protected by the 2nd Amendment.  Specifically, the court’s concern over the evidence was that there was NO EVIDENCE in the record before the Court as to whether or not the military used short barrel shotguns and, consequently, the Court sent the case back to the trial court to develop the evidence on that issue (the case never returned to the Supreme Court).

On appeal, the Court in Miller- quoting the Tennessee Supreme Court – stated:

“In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.” – Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158

As stated above, the Court did not rule on the issue of whether or not the 2nd Amendment applied. What it said was that there was not enough evidence in the record for either it or the trial court to answer that question. Thus, the Court simply found that there was inadequate evidence on the issue and consequently the court sent the case back to the trial court for further proceedings.

The TBI’s statement is outrageous when further viewed in light of the brief that was filed by the Department of Justice in the Miller case.  Significantly, the DOJ in that brief CONCEDED that any firearm used by the military was protected to civilian ownership by the 2nd Amendment.   The DOJ was arguing only that the short barrel shotgun was not used by the military but that it was merely the weapon of the gangster and, consequently, it argued, not protected.  The next quote is from the 1939 brief of the Department of Justice in Miller and again citing the Tennessee Supreme Court!

“While some courts have said that the right to bear arms includes the right of the individual to have them for the protection of his person and property as well as the right of the people to bear them collectively (People v. Brown, 253 Mich. 537; State v. Duke, 42 Tex. 455), the cases are unanimous in holding that the term “arms” as used in constitutional provisions refers only to those weapons which are ordinarily used for military or public defense purposes and does not relate to those weapons which are commonly used by criminals. Thus in Aymette v. State, supra, it was said (p. 158):

As the object for which the right to keep and bear arms is secured, is of general and public nature, to be exercised by the people in a body, for their common defense, so the arms, the right to keep which is secured, are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority. They need not, for such a purpose, the use of those weapons which are usually employed in private broils, and which are efficient only in the hands of the robber and the assassin. These weapons would be useless in war. They could not be employed advantageously in the common defense of the citizens. The right to keep and bear them, is not, therefore, secured by the constitution.”

Now, let’s turn to the questioning from Rep. Bruce Griffey. Rep. Griffey noted that there were no laws at the time of the 2nd Amendment that banned firearms. Indeed, he noted, citizens could even own cannons and other “state of the art technology.”

Next (skipped 2 other speakers) is Rep. Jerry Sexton. He discusses with the TBI his concern that TBI is against the legislation to deregulate short barrel rifles and shotguns under Tennessee law. TBI, in responding, continues to assert that these illegal firearms, dangerous firearms and “unwarranted” under the 2nd Amendment. Rep. Sexton pushes the point that TBI and other government agencies can own this kind of weapon or weapons that are more powerful. Ultimately, what TBI appears to be arguing is that Tennessee and its law enforcement agencies want the ability to enforce federal laws even if they clearly violate the “shall not be infringed” mandate.

What can you do?

You need to decide if you want to fight for your rights, to defend your rights or if you are willing to continue to let Tennessee state government (and local government) deny you the exercise of your constitutionally protected rights. Don’t assume that it is “someone else’s job”.

1. One thing you can and should be doing is thanking Rep. Bruce Griffey and Rep. Jerry Sexton for standing up for your rights. You can call their offices or even email them! What’s more, Rep. Griffey will be running to become a state judge and Rep. Sexton is up for re-election. You might consider supporting both of those efforts.

2. Second, you can and should be contacting your own House and Senate members. (Look up your Legislator) Insist that they be the ones in the next video working to push back on the TBI, the Department of Safety, the Tennessee Sheriffs and their “Association”, the Tennessee Chiefs of Police, even the district attorneys all of whom have at one time or another been trying to increase or maintain infringements on your rights. Do you even know if your Legislature is helping them in that effort – if not, find out! It may be the time to replace him or her too!

3. Contact David Rausch who is the Director of the TBI. His official state email and direct office number is not listed on the TBI website – but call the main line and ask to speak with him at 615 744-4000. If you can’t get him, call the person who appointed him – Bill Lee. Governor’s Lee’s email is not on the state website but his office number is – 615 741-2001.

4) Show up for the joint GOA/TFA 2nd Amendment rally and lobby day on March 16, 2022.