Paid advertising at What Really Happened may not represent the views and opinions of this website and its contributors. No endorsement of products and services advertised is either expressed or implied.
Originally published as 61 Tenn. Permission for WWW use at this site generously granted by the author. For educational use only. The printed edition remains canonical. For citational use please obtain a back issue from William S. One is state constitutional law, a subject that until recently was almost completely ignored.
Another is the constitutional right to keep and bear arms, a subject that has always received a great deal of attention among nonacademics chiefly those opposed to gun controlbut until recently has received little attention in the scholarly press.
Both subjects are now the focus of much more writing, primarily because of the publication of articles by well-known authors that suggest the topics deserve attention.
In the case of state constitutions, two important articles started the trend: As far as I am able to determine, this topic has never been the subject of scholarly commentary. I hope that my contribution to this Symposium will, in its own small way, be as successful in stimulating discussion in this field as the works mentioned above have been in theirs.
An examination of the Tennessee Constitution in this context may also be useful in the general debate over the meaning of the Second Amendment to the Federal Constitution.
Both provisions grow out of the same eighteenth-century variety of republicanism and appear to have been meant to serve the same purposes. Yet, the Tennessee Constitution's provision is drafted differently, and has been more thoroughly interpreted in the courts.
As a result, its meaning is likely to be somewhat clearer to modem readers. The Tennessee Provision and the U. Some Comparisons and Contrasts Though it may be unstylishly straightforward, I have always believed that the text is a good place to start when examining a constitutional issue.
Thus, it is also worthwhile to look at the Second Amendment to the U. Constitution by way of comparison. The Second Amendment provides: Interpretation of the Second Amendment is not easy: The most obvious involves the federal provision's reference to the "Militia.
First, the term "militia" does not appear in the Tennessee provision. Rather, the provision is aimed at the "citizens of this State," which seems to rule out any sort of governmental body.
This is made clear elsewhere in the Tennessee Constitution. Article I, Section 24 provides: That the sure and certain defense of a free people, is a well regulated militia; and, as standing armies in time of peace are dangerous to freedom, they ought to be avoided as far as the circumstances and safety of the community will admit; and that in all cases the military shall be kept in strict subordination to the civil authority.
Rather this provision is the collective right clause of the Tennessee Constitution. Unlike the Federal Constitution, the Tennessee Constitution separates its militia and right to bear arms provisions.
However, the present-day effect of this collective right provision is not entirely clear: Would it guarantee the right at least subject to being "well regulated" of individuals to form private militias of the sort common in the early days of this state?
But at a minimum, the very existence of this provision makes it clear that the right to bear arms clause of Article I, Section 26, does not include the protection of a collective right to have a well-regulated militia to which one may or may not belong.
That right is addressed elsewhere. Second, it seems unlikely that a provision in Tennessee's Declaration of Rights is intended to protect an institution of state power against federal power.
Such a provision would be void under the Supremacy Clause of the Federal Constitutions. Under our federal system, powers not granted to the federal government may be lodged in either the states or the people, making it possible, at least in principle, to argue about whether a particular provision in the federal bill of rights protects individuals or the states.
Yet within a particular state, power must be lodged in either the state government or in the individual citizens; there is no other place for it to go. Thus, such a claim would also make little sense from a structural standpoint.
The Tennessee Constitution's right to bear arms clause must therefore be interpreted as creating an individual right. The following Part attempts to discover its purpose.
Interpreting the Tennessee Provision If the Tennessee right to bear arms provision is textually and structurally distinct from its counterpart in the Federal Constitution, what does it mean? And how are we to address that question? In keeping with general principles of constitutional analysis, we can look at three main sources of enlightenment:Feb 13, · Stand and fight is by Wayne LaPierre and it outlines the battle ahead for the Second Amendment.
Clayton E. Cramer is a software engineer with a telecommunications manufacturer in Northern California. His first book, By The Dim And Flaring Lamps: The Civil War Diary of Samuel McIlvaine, was published in For The Defense of Themselves And The State: The Original Intent & Judicial Interpretation of the Right To Keep And Bear Arms will be published by Greenwood/Praeger Press.
Recumbent Bikes: By John Andersen. You’ve probably seen them, those odd shaped bicycles having more in common with lawn furniture than typical bicycles. When I joined the court in , that holding was generally understood as limiting the scope of the Second Amendment to uses of arms that were related to military activities.
Tennessee Law Review; The Right To Keep and Bear Arms Under the Tennessee Constitution: A Case Study in Civic Republican Thought, by Glenn Harlan Reynolds.
[Content warning: Politics, religion, social justice, spoilers for “The Secret of Father Brown”. This isn’t especially original to me and I don’t claim anything more than to be explaining and rewording things I have heard from a bunch of other people.