Tennessee’s historic reading of the right to keep and bear arms | Opinion – Commercial Appeal

Edward J. Curtis, Jr.| Guest Columnist

Politicians and constituents react to Gov. Bill Lee's recent permitless carry legislation

Politicians and constituents give their take about Gov. Lee's support for permitless gun carry legislation

Mike Fant, The Tennessean

On Christmas morning, 12-year-old Artemis Rayford was killed in his Memphis home by a stray bullet. The boy had recently written Governor Bill Lee about Tennessee's Permitless Carry Law to tell him that, in his opinion, "the new law will be bad, and people will be murdered."

When Gov. BillLee signed the Permitless Carry Law, he tweeted "I signed constitutional carry today because it shouldnt be hard for law-abiding Tennesseans to exercise their #2A rights."

Neither the Second Amendment nor Tennessee's constitution requires that Tennesseans, or any American citizen, be allowed to carry weapons at any time for any purpose.

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The Tennessee Supreme Court ruled in 1840 that the right in the Tennessee Constitution to keep and bear arms protected only "usually employed military equipment." In 1939 the United States Supreme Court adopted the Tennessee Supreme Court's interpretation of the right to keep and bear arms, when it upheld the 1935 Firearms Act by finding that a short-barreled shotgun was not "ordinary military equipment."

The Tennessee Supreme Court's 1840 decision upheld the conviction of a man who was carrying a bowie-knife under his clothes. The Court explained that the arms protected by its Constitution were military equipment, not concealed weapons, which it described as "useless in war" and "efficient only in the hands of the robber and the assassin."

Not only did the Tennessee Supreme Court uphold a concealed weapons ban, it refused to follow a Kentucky court decision that found that Kentuckians had a right to carry concealed weapons.

In 1822, the Kentucky Supreme Court had vacated the conviction of a man who was found to carry a sword concealed in a cane. The Tennessee Supreme Court pointed out that Kentucky's version of its citizens' right to keep and bear arms extended to personal defense, unlike Tennessee's version, and unlike the Second Amendment.

Kentucky later amended its version of the right to keep and bear arms to overrule its Supreme Court and permit the State to ban concealed weapons.

The United States Supreme Court is still relying on the reasoning of the Tennessee Supreme Court. In 2008 Justice Antonin Scalia explained that ordinary military equipment did not include weapons such as machineguns, which, though useful in war, were "not typically possessed by law-abiding citizens for lawful purposes."

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The reason the Tennessee Supreme Court focused on military equipment was that, in the nineteenth century, the militia was a crucial part of the United States' defense. The army was small and the country was large.

The militia was a great deal larger than the army. It included all persons in each state "physically capable of acting in concert for the common defense." The states mustered their militias for training and, when needed, defense.

The Second Amendment protected the right of citizens to keep and bear arms needed to defend the state. The arms the citizens produced needed to, at least, show the state's enemies that its citizens wanted to defend the state. A citizen who conceals his weapon shows no desire to defend anything.

There is no "constitutional carry" that is required either by the Second Amendment or the Tennessee Constitution. A law that allows anyone to carry a weapon anytime for any purpose is just a bad law, as Artemis Rayford wrote in his letter to Governor Lee.

Edward J. Curtis, Jr., is an attorney and the author of "Of Arms and the Militia: Gun Regulation by Defining 'Ordinary Military Equipment'" in the Touro Law Review.

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Tennessee's historic reading of the right to keep and bear arms | Opinion - Commercial Appeal