Live from Music Row, Wednesday morning on The Tennessee Star Report with Michael Patrick Leahy – broadcast on Nashville’s Talk Radio 98.3 and 1510 WLAC weekdays from 5:00 a.m. to 8:00 a.m. – host Leahy welcomed Tennessee attorney John Harris in studio to explain how the Bruen decision applies to the state of Tennessee’s gun laws.
Leahy: We welcome back to our microphones in studio our very good friend John Harris. John is a graduate of Vanderbilt Law School. And also you have your own practice. But in addition to that, you have been for what, 30 years?
Harris: 28 years now.
Leahy: 28 years. I’m off by two. For 28 years you’ve been the founder and CEO of the Tennessee Firearms Association, protecting the Second Amendment rights of Tennesseeans. We were talking about this decision called Bruen. A recent Supreme Court decision. Lay out the facts of that case and what the Supreme Court ruled, who the plaintiffs and who the defendants were, and then let’s talk about its applicability here in Tennessee.
Harris: The US. Supreme Court in the last 14 years has been on a Second Amendment kind of theme with a couple of cases, three in particular. In 2008, they started with the Heller decision, which held that it’s an individual right to own firearms.
Leahy: And the Heller decision was a guy by the last name of Heller.
Harris: Dick Heller.
Leahy: Who lived in Washington, D.C. of all places. And the city basically said you can’t own a firearm.
Leahy: And he said, oh, yes, I can.
Harris: And the Supreme Court agreed with him. It was a great opinion by Scalia. And then, two years later, in a case called McDonald versus the City of Chicago, the U.S. Supreme Court dealt with the question of does the Second Amendment apply to the states, which was clear from the way it was written and from then basically 200 years of case law that it did not. But what the Supreme Court did in McDonald was they took the 14th amendment. And if you recall, I wrote the chapter on that in the constitution book.
Leahy: Indeed you did. You wrote a couple of chapters for us in the Guide to the Constitution and the Bill of Rights for Secondary School Students, which is the basis of our National Constitution Bee, where we give out scholarships to kids, and $10,000 to the winner.
We’ve had some great winners. You wrote two chapters in that book and the one on the Second Amendment. This is the briefest, most precise amendment in the entire Constitution.
It was adopted on December 15, 1791, I think, when the Bill of Rights was adopted. It says simply, a well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. Pretty simple.
Harris: Pretty straightforward. It’s been misconstrued a lot by progressives and even what some might refer to as RINOS in the last couple of decades. (Chuckles)
Leahy: And it’s interesting if you look at the language, the clause at the beginning of it, a well-regulated militia being necessary to the state of a free security of a free state, the right of the people to keep and bear arms shall not be infringed.
If you just look at that from a logical perspective, the right of the people to keep and bear arms shall not be infringed, in part because of a well-regulated militia is necessary for the security of a free state. That’s one way you could interpret it. Let’s talk about the Bruen decision. Who are the plaintiffs?
Harris: Bruen, following off of the McDonald decision, was a case that came to the Supreme Court in 2021 and was decided in June of 2022.
Leahy: Less than a year ago.
Harris: Less than a year ago. Written by Justice Thomas in the majority opinion.
Leahy: And by the way, I love it when I hear written by Justice Thomas in the majority opinion or written by Justice Scalia. You know it’s going to be a good decision.
Harris: It’s a great decision. The named lead plaintiffs were the New York State Rifle and Pistol Association. And Bruen is a public official. It’s just a proper defendant in this kind of case. And Bruen is essentially the state of New York.
And so the issue was that in New York they had what’s called a may issue permitting system, which left the burden on the individual to demonstrate good cause, substantial need, unique need, in order to justify being issued a permit to carry a handgun. And all of the discretion on whether or not that need had been met was vested in a local government official with really no criteria as to what the standard was.
Leahy: Let’s remember, the Second Amendment says the right of the people to keep and bear arms shall not be infringed.
Harris: And New York doesn’t get it. Most states don’t get it. Tennessee doesn’t get it. So the issue was this permitting system that New York was using was constitutional. And in the Bruen decision, the main thing the court really did, and this is a little bit in the weeds, is the Court rejected the last 14 years’ worth of intermediate appellate court decisions which had adopted this two-pronged balancing test that said, yeah, the Second Amendment is there.
But if the state can give us a good reason why they need to regulate permits or where you can carry gun-free zones, then we’re going to allow the regulation, based on the reasonable need of the government to police powers. And the court said, no, that doesn’t apply anymore in Bruen. That’s the big change in Bruen.
Bruen says the Second Amendment is an absolute right. It’s a pre-existing right. It doesn’t derive itself from the Constitution. And in order to interpret a constitutionally protected right, this applies to the First and the Second Amendments.
The courts shall look at what the law was in 1791 when it was adopted. And if the regulation existed then, then that regulation or an analog or something similar to it could exist now.
And if it didn’t, then it’s unconstitutional. And so the Supreme Court struck down the New York licensing scheme at that time. And then, based on Bruen, there have been almost 400 cases since last June decided by lower courts based on the Bruen decision already.
Leahy: Now, let’s get to Tennessee. How does Bruen apply to Tennessee?
Harris: Some people think because Bruen is a federal decision that it really doesn’t apply in Tennessee. It has no relevance to, for example, Tennessee statutes or regulations or even the decision of Bill Lee to post the Capitol as a gun-free zone. And that’s just completely short-sighted, if not misleading, for that assertion to be made because McDonald 2010 said the Second Amendment regulates the states fully under the 14th Amendment. Bruen says the same thing.
And then we’ve got a Tennessee appellate court decision coming out of Maury County, where the court applied Bruen and struck down a local government housing regulation on public housing that said tenants can’t possess firearms. And then more recently, in January of 2023, the attorney general for the state of Tennessee submitted an agreed order in a federal case over in east Tennessee called Beeler, where the attorney general, in a disagreed order, agreed that Bruen applies to Tennessee.
And that the regular violation by the state of Tennessee that restricts 18 to 20-year-olds from getting permits, violates the Second Amendment, violates the 14th amendment, and constitutes a federal civil rights violation.
Listen to today’s show highlights, including this interview:
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Tune in weekdays from 5:00 – 8:00 a.m. to The Tennessee Star Report with Michael Patrick Leahy on Talk Radio 98.3 FM WLAC 1510. Listen online at iHeart Radio.