Earlier this week we reported on a significant win for gun owners in Tennessee, where a three-judge panel ruled that two of the state's gun laws violate the Second Amendment as well as the state's constitution. So why is a lawmaker who boasts of being a Second Amendment supporter now asking the state's attorney general and governor to keep defending the law by appealing the decision?
The challenge, brought by Gun Owners of America, Gun Owners Foundation, and three members of the Tennessee Firearms Association, was successfully litigated by Tennessee Firearms Association head John Harris, who persuaded the panel in Gibson County Chancery Court that the the state's "intent to go armed" statute and ban on concealed carry in parks do not fit within the national tradition of gun ownership.
Both of these laws blatantly infringe on the right to keep and bear arms, but the "intent to go armed" statute is particularly egregious, since it allows police to have reasonable cause to believe a crime is being committed if they see a person carrying a firearm, even on the premises of their own home.
That reasonable cause justifies an officer in stopping, detaining, questioning, charging or arresting the individual for that crime. The statutes do provide certain affirmative defenses, such as the individual had a handgun permit or that they were in their own home, but those defenses do not shield the individual from being stopped, questioned or arrested. Indeed, Tennessee law currently puts the burden on the individual to raise and demonstrate those defenses at trial.
Republican Rep. Chris Todd praised the panel's ruling, calling it "one of the most thorough, well-reasoned, and well-written opinions I’ve seen." Yet Todd is also calling on Gov. Bill Lee and Attorney General Jonathan Skrmetti to appeal the Chancery Court decision and continue defending the statutes.
In a statement, Todd argues that an an appellate court would affirm the decision, which in turn "would give the outcome even greater weight by making it a binding precedent in Tennessee and serving as a reference point for similar cases nationwide.”
Todd's statement brought a rebuke by state Senator Brent Taylor, who urged Lee and Skrmetti to not appeal the panel's decision, and the Tennessee Firearms Association took a similar dim view of the representative's request, arguing that an appeal could delay the effectiveness of the ruling "perhaps by years", as well as "risking that the court might reverse the ruling on technical grounds that avoided the constitutional challenge."
One must wonder whether Rep. Todd was being “coached” perhaps by other Legislators or advocates who actually oppose the ruling since the law is quite clear that if litigation can be resolved on technical issues that completely avoid a constitutional challenge to a statute (e.g., standing, mootness, etc.) that the court is required to dispose of the case whenever possible without striking down a blatantly unconstitutional statute. See, for example, Tennessee Supreme Court ruling Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995).
Todd's position is essentially to let the courts throw out these laws, while Taylor's argument is that by dropping any appeal the state legislature can take action to repeal the laws.
Todd is correct that a Chancery Court ruling aren't generally binding precedent that's applicable throughout the entire state, but I think Taylor has the stronger argument here. The state mustered no real evidence to support the idea that either statute fits within the national (or state) tradition of keeping and bearing arms, and continuing to defend them in court would be a waste of time and taxpayer money in addition to risking the panel's decision being reversed on some kind of technical grounds.
The legislature is tasked with making laws, as well as repealing them, and full repeal would be the quickest and easiest way to remove these infringements from the books. I'd like to see both Lee and Skrmetti announce that no appeal will be made and publicly ask lawmakers to address the issue by repealing the statutes in accordance with the court's decision.
I know nothing about Rep. Todd, so I'll take his stated support for the Second Amendment at face value. Even if he has the best of intentions with his proposal, though, it still sounds like a bad strategy to me, and he should be working to convince his colleagues to back repeal bills instead of trying to convince the governor and AG to continue defending the indefensible.
