A federal lawsuit has been filed challenging Tennessee’s new permitless handgun-carry law, which starting July 1 would allow most adults to carry the weapons in public without having firearms training, undergoing state criminal background checks or having state-issued carry permits.
But the lawsuit doesn’t come from any group opposed to the carrying of handguns publicly without a permit.
Rather, the Sacramento, Calif.-based Firearms Policy Coalition, which says it is staunchly pro-gun rights, sued April 22 in U.S. District Court in the Eastern District of Tennessee on behalf of three Knox County residents.
Their civil rights complaint states that Gov. Bill Lee’s initiative doesn’t go far enough and has federal constitutional problems with regard to age requirements in light of the Second Amendment right to bear arms and the 14th Amendment right to equal protection.
All three men of the men listed in the lawsuit say they are ages 18, 19 or 20 and can’t lawfully carry a handgun under the new statute, Public Chapter 108. The law restricts permitless carry to persons ages 21 and older. But it creates an exception for current members of the military or former service members who are under age 21 and have been honorably discharged from the military.
The lawsuit objects to the distinction under the law for those with military service.
“Even the most law-abiding 18-to-20-year-olds are deemed categorically too immature and irresponsible to carry loaded handguns in public for self-defense or any other lawful purpose,” the lawsuit contends. “This is so even though they would, overnight, supposedly become mature and responsible enough if they were to join the military.”
In a news release, Adam Kraut, the Firearms Policy Coalition’s senior director of legal operations, said, “Tennessee’s statutory scheme unconstitutionally denies a large number of adults their fundamental, individual right to bear arms outside the home.”
Kraut said the “text of the Second Amendment makes clear that the right to keep and bear arms ‘shall not be infringed,’ and nothing in America’s history and tradition supports Tennessee’s laws banning carry by adults under age 21. This lawsuit seeks to vindicate the rights of our clients and restore individual liberty in Tennessee and beyond.”
The U.S. Constitution’s 14th Amendment provides all citizens with “equal protection under the laws,” extending provisions of the Bill of Rights to the states.
After the bill’s passage last month, Lee quickly signed it into law, stating in a tweet, “I signed constitutional carry today because it shouldn’t be hard for law-abiding Tennesseans to exercise their #2A rights. Thank you members of the General Assembly and @NRA for helping get this done.”
The lawsuit names Tennessee Attorney General Herbert Slatery and state Safety and Homeland Security Commissioner Jeff Long as defendants. In addition to the Firearms Policy Coalition, plaintiffs include three Knox County residents who say they are under age 21 — Caleb Bassett, Blake Beeler and Logan Ogle.
“For self-defense and other lawful purposes, plaintiff Bassett desires to carry a loaded handgun in public outside of the home,” the lawsuit states. “Plaintiff Bassett has grown increasingly concerned with the rise in civil unrest, rioting, and street violence evident over the past year and seeks to be able to protect himself in public.”
The lawsuit notes that Bassett “can vote, serve on a jury, hold public office, marry, sign legally binding contracts, join or be drafted into the armed forces, be called upon for federal and state militia service and be held fully accountable before the law for criminal acts to the point of being executed.”
Lee Press Secretary Casey Black referred questions posed by the Times Free Press to Slatery’s office, and a spokesperson for Slatery did not respond to a request for comment on Saturday.
All one law
Tennessee Firearms Association Executive Director John Harris, an attorney, said his reading of the new law indicates another problem should a judge strike down the age-restriction language in the legislation, passed by the General Assembly as Senate Bill 767.
The Firearms Policy Coalition is “suing the state for civil rights violations and claiming attorneys’ fees and claiming that the statute that just got signed is unconstitutional,” Harris told the Times Free Press. “And what’s interesting about that is, and part of the problem is, I don’t think Gov. Lee’s bill has a severance clause in it.”
A severability clause provides that if any part of an act is held unconstitutional, the remainder wouldn’t be affected. The National Conference of State Legislatures describes it as a “type of saving clause in that it ‘saves’ parts of an act if any other parts of the act are declared unconstitutional by court action.”
Without a severability clause, Harris said, “if they win over in Knoxville, the whole thing is declared unconstitutional.”
Senate Republican Caucus Chairman Ken Yager, an attorney from Kingston, said it “would be standard practice to have a severability clause in case one of the provisions were declared unconstitutional to say the remainder of them would remain” in effect.
Senate Judiciary Committee Chairman Mike Bell, R-Riceville, who carried the governor’s bill, said he believes there are a half dozen other states with permitless-carry laws that have similar language in their existing laws.
“As far as I know, they have not been successfully challenged,” Bell said.
Asked by a reporter about the lack of what appears to be any severability clause in the law, Bell agreed, saying, “there was not a severability clause. So if that got struck, it would strike the whole thing down.”
So what would happen if that were to occur?
“Goodness, it’s an administration bill,” Bell said. “I guess I’m going to ask the administration lawyers.”
Asked why the bill didn’t have a severability clause, House Majority Leader William Lamberth, R-Portland, an attorney who carried Lee’s bill in the lower chamber, said, “I don’t think that it’s needed. You know, it’s a good, solid constitutional bill, and I see no reason why we’d have a severability clause on something that is all knit together very well.
“It’s a bill that increases freedom and also increases penalties on those felons and thieves out there that would steal or misuse firearms. This bill all works very well together, so there’s no severability clause that I know of in the bill,” Lamberth said.
Lamberth added that, “I can’t imagine a judge would strike down an entire bill, especially a bill that again significantly increases the penalty on individuals who steal firearms to a felony and a 180-day mandatory minimum [jail sentence]. I can’t see a judge striking down a provision like that in the federal code and also striking down a provision that improves and increases the freedom of lawful individuals to possess a firearm simply because of an ancillary issue as to whether or not the age requirement in this is constitutional.”
The state’s years-old handgun-carry permitting process requires background checks and some type of handgun-training course before Tennesseans can get a carry permit. As with the new law, the more established law excluded 18- to 20-year-olds except those with military service. The lawsuit challenges the existing law as well.
The permit process remains in place for those who wish to use it. Experts say Tennesseans should consider seeking, keeping and renewing their permits given that most other states will only recognize someone with a permit as being able to lawfully carry in their jurisdictions.
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