kwikrnu
Banned
Yes. The attorney general issued an opinion nearly 7 years ago regarding the constitutionality of Tennessee's gun laws. As far as I know no one has asked the AG for a new opinion now that the Supreme Court of the United States came out with their decision in McDonald.
S T A T E O F T E N N E S S E E
OFFICE OF THE
ATTORNEY GENERAL
PO BOX 20207
NASHVILLE, TENNESSEE 37202
December 23, 2003
Opinion No. 03-165
Constitutional Right to Keep and Bear Arms
QUESTIONS
1. To what extent does the Second Amendment to the United States Constitution limit
the power of the Tennessee Legislature to pass laws relative to the rights of the people to keep and
bear arms?
2. Does the Second Amendment to the United States Constitution guarantee an
individual right of the people to keep and bear arms, and, if so,
(a) what is the scope of the right, and
(b) does that guarantee preempt Tennessee state law?
3. To what extent does the Fourteenth Amendment to the United States Constitution
make the provisions of the Bill of Rights, including the Second Amendment, applicable to the State
of Tennessee?
OPINIONS
1. The United States Supreme Court has concluded that the Second Amendment does
not apply to the states. While the rationale underlying these opinions has recently been questioned,
they have not been overruled.
2. (a) United States Courts of Appeals are split on whether the Second Amendment to
the United States Constitution guarantees an individual right to keep and bear arms. The United
States Court of Appeals for the Sixth Circuit, of which Tennessee is a part, has concluded that the
Second Amendment does not guarantee an individual right. The Court of Appeals for the Fifth
Circuit, on the other hand, has concluded that the Second Amendment does guarantee an individual
right to bear arms, but that this right is subject to any limited, narrowly tailored specific exceptions
or restrictions for particular cases that are reasonable and not inconsistent with the right of
Americans generally to individually keep and bear their private arms as historically understood in
this country. The United States Attorney General has endorsed the Fifth Circuit’s reasoning but has
reiterated his intention of defending all current federal laws regulating firearms.
(b) As discussed in Question 1, the United States Supreme Court has concluded that the
Second Amendment does not apply to the states. If the United States Supreme Court decides that
the Second Amendment protects an individual right to keep and bear arms, and that the Second
Amendment applies to the states, then, under the Supremacy Clause, Tennessee law could not
unconstitutionally encroach on that right.
3. The United States Supreme Court has determined that several different provisions of
the Bill of Rights apply to the states through the Due Process Clause of the Fourteenth Amendment.
It is conceivable that, if the United States Supreme Court finds that the Second Amendment does
protect an individual right to keep and bear arms, it would also find that the provision applies to the
states through the Fourteenth Amendment. But that Court has never overruled its conclusion that
the Second Amendment does not apply to the states through the Fourteenth Amendment.
ANALYSIS
1. Applicability of the Second Amendment of the United States Constitution to the
States
This opinion addresses several questions about the Second Amendment to the United States
Constitution. That provision states:
Right to bear arms. — 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.
U. S. Const. Amend. 2. The United States Supreme Court has concluded that the Second
Amendment is a limitation only upon the power of Congress and the national government, and not
upon that of the states. Presser v. State of Illinois, 116 U.S. 252, 6 S.Ct. 580, 584, 29 L.Ed. 615
(1886); United States v. Cruikshank, 92 U.S. 542, 553, 23 L.Ed. 588 (1875). Recently some courts
have questioned the continued validity of these opinions in dicta. See, e.g., Silveira v. Lockyer, 312
F.3d 1052, n. 17 (9th Cir. 2003), rehearing en banc denied, 828 F.3d 567 (9th Cir. 2003), petition
for certiorari pending; United States v. Emerson, 270 F.3d 203, n. 13 (5th Cir. 2001), rehearing and
rehearing en banc denied, 281 F.3d 1281 (5th Cir. 2001), cert. denied, 536 U.S. 907, 122 S.Ct. 2362,
153 L.Ed.2d 184 (2002). But until the Supreme Court directly overrules these opinions, they remain
binding. See, e.g., Fresno Rifle and Pistol Club, Inc. v. Van de Kamp, 965 F.2d 723 (9th Cir. 1992).
2. Individual Right to Bear Arms
The next question is whether the Second Amendment to the United States Constitution
guarantees an individual right of the people to keep and bear arms. The United States Courts of
Appeals are split on this issue. The United States Court of Appeals for the Sixth Circuit, of which
Tennessee is a part, continues to hold that the Second Amendment guarantees the collective right
of the State to maintain a militia rather than an individual right to keep and bear arms. United States
v. Bournes, 339 F.3d 396 (6th Cir. 2003), petition for certiorari pending; United States v. Napier,
233 F.3d 394, 402 (6th Cir. 2000). By contrast, the United States Court of Appeals for the Fifth
Circuit recently found that the Second Amendment does protect an individual right to keep and bear
arms. United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), rehearing and rehearing en banc
denied, 281 F.3d 1281 (5th Cir. 2001), cert. denied, 536 U.S. 907, 122 S.Ct. 2362, 153 L.Ed.2d 184
(2002). In that case, an individual challenged a federal statute making it a crime to possess a firearm
while subject to a court order prohibiting the use, attempted use, or threatened use of physical force
against an intimate partner or child. The individual asserted that, among other grounds, the statute
violated his Second Amendment right to keep and bear arms. The Court examined the text and the
history of the Second Amendment, and concluded that it “protects individual Americans in their right
to keep and bear arms whether or not they are a member of a select militia or performing active
military service or training.” 270 F.3d at 260. The Court also concluded, however, that this right
is subject to regulation. The Court stated:
Although, as we have held, the Second Amendment does protect individual rights,
that does not mean that those rights may never be made subject to any limited,
narrowly tailored specific exceptions or restrictions for particular cases that are
reasonable and not inconsistent with the right of Americans generally to individually
keep and bear their private arms as historically understood in this country.
270 F.3d at 261 (emphasis in text). The Court examined the procedure under which restraining
orders were issued in Texas, and pointed out that it provided for notice and a hearing. The Court
also found that, under Texas law, the order could not issue unless the court concluded, based on
adequate evidence at the hearing, that the party restrained would otherwise pose a realistic threat of
imminent physical danger to the protected party. The Court stated:
In such a case, we conclude that the nexus between firearm possession by the party
so enjoined and the threat of lawless violence, is sufficient, though likely barely so,
to support the deprivation, while the order remains in effect, of the enjoined party’s
Second Amendment right to keep and bear arms, and that this is so even though the
party enjoined may not collaterally attack the particular predicate order in the . . .
prosecution [under the challenged federal law], at least so long as the order, as here,
is not so transparently invalid as to have only a frivolous pretense to validity.
270 F.3d 264.
Other circuits of the United States Court of Appeals, including the Sixth Circuit, have not
adopted the reasoning in Emerson. The United States Attorney General has endorsed the reasoning
of this case in a memorandum to all United States Attorneys dated November 9, 2001, and has since
adopted it in briefs opposing petitions for certiorari before the Supreme Court in the Emerson case
and in United States v. Haney, 264 F.3d 1161 (10th Cir. 2001), cert denied, 536 U.S. 907, 122 S.Ct.
2362, 153 L.Ed.2d 153 (2002). At the same time, however, the Attorney General expressed the
Department’s intent to defend all existing federal firearms laws.
Emerson is not binding within this jurisdiction. Further, the United States Supreme Court
has found that the Second Amendment does not apply to the states. If the United States Supreme
Court finds that the Second Amendment protects an individual right to keep and bear arms, and that
the Second Amendment applies to the states, then, under the Supremacy Clause, Tennessee law
could not unconstitutionally encroach upon that right.
3. Application of the Bill of Rights to the States
The last question is the extent to which the Bill of Rights in the United States Constitution
applies to the states through the Fourteenth Amendment to the United States Constitution. The
United States Supreme Court has concluded that a number of provisions of the Bill of Rights apply
to the states through the Due Process Clause of the Fourteenth Amendment to the United States
Constitution. School District of Abington Township v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10
L.Ed.2d 844 (1963) (Establishment Clause of the First Amendment); New York Times Co. v.
Sullivan, 376 U.S. 254, 277, 84 S. Ct. 710, 11 L.Ed.2d 686 (1964) (freedom of speech under the First
Amendment); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 684, 691, 5 L.Ed.2d 90 (1961), rehearing
denied, 368 U.S. 871, 82 S.Ct. 23, 7 L.Ed.2d 72 (1961) (Fourth Amendment); Gideon v.
Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (Sixth Amendment); Williamson
County Reg. Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 3111 n. 1, 87
L.Ed.2d 126 (1985) (Fifth Amendment). The reasoning behind these cases is that these rights are
part of the fundamental concept of liberty embodied in the Due Process Clause of the Fourteenth
Amendment. It is conceivable that, if the United States Supreme Court finds that the Second
Amendment does protect an individual right to keep and bear arms, it would also find that the
provision applies to the states through the Due Process Clause of the Fourteenth Amendment. But,
as discussed above, the United States Supreme Court has concluded in the past that the Second
Amendment does not apply to the states. These cases have not been overruled.
S T A T E O F T E N N E S S E E
OFFICE OF THE
ATTORNEY GENERAL
PO BOX 20207
NASHVILLE, TENNESSEE 37202
December 23, 2003
Opinion No. 03-165
Constitutional Right to Keep and Bear Arms
QUESTIONS
1. To what extent does the Second Amendment to the United States Constitution limit
the power of the Tennessee Legislature to pass laws relative to the rights of the people to keep and
bear arms?
2. Does the Second Amendment to the United States Constitution guarantee an
individual right of the people to keep and bear arms, and, if so,
(a) what is the scope of the right, and
(b) does that guarantee preempt Tennessee state law?
3. To what extent does the Fourteenth Amendment to the United States Constitution
make the provisions of the Bill of Rights, including the Second Amendment, applicable to the State
of Tennessee?
OPINIONS
1. The United States Supreme Court has concluded that the Second Amendment does
not apply to the states. While the rationale underlying these opinions has recently been questioned,
they have not been overruled.
2. (a) United States Courts of Appeals are split on whether the Second Amendment to
the United States Constitution guarantees an individual right to keep and bear arms. The United
States Court of Appeals for the Sixth Circuit, of which Tennessee is a part, has concluded that the
Second Amendment does not guarantee an individual right. The Court of Appeals for the Fifth
Circuit, on the other hand, has concluded that the Second Amendment does guarantee an individual
right to bear arms, but that this right is subject to any limited, narrowly tailored specific exceptions
or restrictions for particular cases that are reasonable and not inconsistent with the right of
Americans generally to individually keep and bear their private arms as historically understood in
this country. The United States Attorney General has endorsed the Fifth Circuit’s reasoning but has
reiterated his intention of defending all current federal laws regulating firearms.
(b) As discussed in Question 1, the United States Supreme Court has concluded that the
Second Amendment does not apply to the states. If the United States Supreme Court decides that
the Second Amendment protects an individual right to keep and bear arms, and that the Second
Amendment applies to the states, then, under the Supremacy Clause, Tennessee law could not
unconstitutionally encroach on that right.
3. The United States Supreme Court has determined that several different provisions of
the Bill of Rights apply to the states through the Due Process Clause of the Fourteenth Amendment.
It is conceivable that, if the United States Supreme Court finds that the Second Amendment does
protect an individual right to keep and bear arms, it would also find that the provision applies to the
states through the Fourteenth Amendment. But that Court has never overruled its conclusion that
the Second Amendment does not apply to the states through the Fourteenth Amendment.
ANALYSIS
1. Applicability of the Second Amendment of the United States Constitution to the
States
This opinion addresses several questions about the Second Amendment to the United States
Constitution. That provision states:
Right to bear arms. — 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.
U. S. Const. Amend. 2. The United States Supreme Court has concluded that the Second
Amendment is a limitation only upon the power of Congress and the national government, and not
upon that of the states. Presser v. State of Illinois, 116 U.S. 252, 6 S.Ct. 580, 584, 29 L.Ed. 615
(1886); United States v. Cruikshank, 92 U.S. 542, 553, 23 L.Ed. 588 (1875). Recently some courts
have questioned the continued validity of these opinions in dicta. See, e.g., Silveira v. Lockyer, 312
F.3d 1052, n. 17 (9th Cir. 2003), rehearing en banc denied, 828 F.3d 567 (9th Cir. 2003), petition
for certiorari pending; United States v. Emerson, 270 F.3d 203, n. 13 (5th Cir. 2001), rehearing and
rehearing en banc denied, 281 F.3d 1281 (5th Cir. 2001), cert. denied, 536 U.S. 907, 122 S.Ct. 2362,
153 L.Ed.2d 184 (2002). But until the Supreme Court directly overrules these opinions, they remain
binding. See, e.g., Fresno Rifle and Pistol Club, Inc. v. Van de Kamp, 965 F.2d 723 (9th Cir. 1992).
2. Individual Right to Bear Arms
The next question is whether the Second Amendment to the United States Constitution
guarantees an individual right of the people to keep and bear arms. The United States Courts of
Appeals are split on this issue. The United States Court of Appeals for the Sixth Circuit, of which
Tennessee is a part, continues to hold that the Second Amendment guarantees the collective right
of the State to maintain a militia rather than an individual right to keep and bear arms. United States
v. Bournes, 339 F.3d 396 (6th Cir. 2003), petition for certiorari pending; United States v. Napier,
233 F.3d 394, 402 (6th Cir. 2000). By contrast, the United States Court of Appeals for the Fifth
Circuit recently found that the Second Amendment does protect an individual right to keep and bear
arms. United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), rehearing and rehearing en banc
denied, 281 F.3d 1281 (5th Cir. 2001), cert. denied, 536 U.S. 907, 122 S.Ct. 2362, 153 L.Ed.2d 184
(2002). In that case, an individual challenged a federal statute making it a crime to possess a firearm
while subject to a court order prohibiting the use, attempted use, or threatened use of physical force
against an intimate partner or child. The individual asserted that, among other grounds, the statute
violated his Second Amendment right to keep and bear arms. The Court examined the text and the
history of the Second Amendment, and concluded that it “protects individual Americans in their right
to keep and bear arms whether or not they are a member of a select militia or performing active
military service or training.” 270 F.3d at 260. The Court also concluded, however, that this right
is subject to regulation. The Court stated:
Although, as we have held, the Second Amendment does protect individual rights,
that does not mean that those rights may never be made subject to any limited,
narrowly tailored specific exceptions or restrictions for particular cases that are
reasonable and not inconsistent with the right of Americans generally to individually
keep and bear their private arms as historically understood in this country.
270 F.3d at 261 (emphasis in text). The Court examined the procedure under which restraining
orders were issued in Texas, and pointed out that it provided for notice and a hearing. The Court
also found that, under Texas law, the order could not issue unless the court concluded, based on
adequate evidence at the hearing, that the party restrained would otherwise pose a realistic threat of
imminent physical danger to the protected party. The Court stated:
In such a case, we conclude that the nexus between firearm possession by the party
so enjoined and the threat of lawless violence, is sufficient, though likely barely so,
to support the deprivation, while the order remains in effect, of the enjoined party’s
Second Amendment right to keep and bear arms, and that this is so even though the
party enjoined may not collaterally attack the particular predicate order in the . . .
prosecution [under the challenged federal law], at least so long as the order, as here,
is not so transparently invalid as to have only a frivolous pretense to validity.
270 F.3d 264.
Other circuits of the United States Court of Appeals, including the Sixth Circuit, have not
adopted the reasoning in Emerson. The United States Attorney General has endorsed the reasoning
of this case in a memorandum to all United States Attorneys dated November 9, 2001, and has since
adopted it in briefs opposing petitions for certiorari before the Supreme Court in the Emerson case
and in United States v. Haney, 264 F.3d 1161 (10th Cir. 2001), cert denied, 536 U.S. 907, 122 S.Ct.
2362, 153 L.Ed.2d 153 (2002). At the same time, however, the Attorney General expressed the
Department’s intent to defend all existing federal firearms laws.
Emerson is not binding within this jurisdiction. Further, the United States Supreme Court
has found that the Second Amendment does not apply to the states. If the United States Supreme
Court finds that the Second Amendment protects an individual right to keep and bear arms, and that
the Second Amendment applies to the states, then, under the Supremacy Clause, Tennessee law
could not unconstitutionally encroach upon that right.
3. Application of the Bill of Rights to the States
The last question is the extent to which the Bill of Rights in the United States Constitution
applies to the states through the Fourteenth Amendment to the United States Constitution. The
United States Supreme Court has concluded that a number of provisions of the Bill of Rights apply
to the states through the Due Process Clause of the Fourteenth Amendment to the United States
Constitution. School District of Abington Township v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10
L.Ed.2d 844 (1963) (Establishment Clause of the First Amendment); New York Times Co. v.
Sullivan, 376 U.S. 254, 277, 84 S. Ct. 710, 11 L.Ed.2d 686 (1964) (freedom of speech under the First
Amendment); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 684, 691, 5 L.Ed.2d 90 (1961), rehearing
denied, 368 U.S. 871, 82 S.Ct. 23, 7 L.Ed.2d 72 (1961) (Fourth Amendment); Gideon v.
Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (Sixth Amendment); Williamson
County Reg. Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 3111 n. 1, 87
L.Ed.2d 126 (1985) (Fifth Amendment). The reasoning behind these cases is that these rights are
part of the fundamental concept of liberty embodied in the Due Process Clause of the Fourteenth
Amendment. It is conceivable that, if the United States Supreme Court finds that the Second
Amendment does protect an individual right to keep and bear arms, it would also find that the
provision applies to the states through the Due Process Clause of the Fourteenth Amendment. But,
as discussed above, the United States Supreme Court has concluded in the past that the Second
Amendment does not apply to the states. These cases have not been overruled.