By Tom Humphrey,
February 9, 2008

After receiving a formal attorney general’s opinion, state Rep. Frank Niceley says it appears Tennessee’s Constitution does not need amending to assure that citizens can keep and bear arms.

Niceley, R-Strawberry Plains, said he asked Attorney General Bob Cooper for the opinion because of a case pending before the United States Supreme Court.

In that case, the Supreme Court is asked to decide whether the 2nd Amendment to the U.S. Constitution grants an individual right to keep and bear arms or whether it is a “collective right” for the benefit of state militias, Niceley said.

If the Supreme Court rules it is a collective right at the federal level, Tennesseans would have to fall back on the state constitution for protection of their individual rights, he said.

Thus, Niceley posed the question to Cooper: “Does Article I, Section 26, of the Tennessee Constitution confer an individual right on the citizens of Tennessee to keep and bear arms?”

If the answer had been no, Niceley said, he was prepared to propose a state constitutional amendment to change the language and assure there is an individual right.

As it turned out, he said, “It appears we’re all right in Tennessee. … It’s a pretty secure individual right.”

The state constitutional provision in question says: “That the citizens of this state have a right to keep and bear arms for their common defense; but the Legislature shall have the power, by law, to regulate the wearing of arms with a view to prevent crime.”

Cooper’s opinion, citing Tennessee Supreme Court decisions in 1871 and 1931, says this means Tennesseans have a clear right to possess arms, but “the wearing and carrying of arms is another matter.”

Quoting the 1871 decision, the opinion says the right to possess arms would include rights to “purchase them, keep them in a state of efficiency for use, and to purchase and provide ammunition suitable for such arms and to keep them in repair.”

“And clearly for this purpose, a man would have the right to carry them to and from his home, and no one could claim that the Legislature had the right to punish him for it, without violating this clause of the constitution,” the opinion says.

The Legislature is free, on the other hand, to put restrictions on carrying weapons in public places, the opinion says.

Further, there is a question about the legal definition of “arms.” The 1931 state Supreme Court case says that “the musket, shotgun and repeating rifle” are arms for purposes of the state constitution, but other weapons “such as certain types of pistols” may not qualify.

A footnote to the opinion says that “switchblades, sword canes and pocket pistols” are examples of weapons that would not be considered “arms.”

Niceley is sponsor of a bill to allow conceal-carry permit holders to take their weapons into state parks. The measure passed the Senate last year, but stalled in a House subcommittee. Niceley said he is more optimistic about prospects for passage this year.

More than 100 bills dealing with guns in one way or another are pending in the Legislature, including those carried over from last year.

Among the new measures introduced for the first time this year, none of which have come up for a committee vote yet, are:

The Ammunition Accountability Act, which requires all ammunition for “handguns and assault rifles” to have an identifying code etched into each bullet, allowing law enforcement officers to trace bullets recovered at crime scenes back to the point of sale. The TBI would maintain a database on the coded bullets, and costs of implementing the plan would be covered by a half-cent tax on each bullet sold in the state.

Sponsors are Sen. Reginald Tate and Rep. Larry Miller, both Memphis Democrats.

A measure creating a new misdemeanor crime for “intentionally displaying or exposing an imitation firearm in a public place in a threatening manner.” The bill is sponsored by Rep. John DeBerry, D-Memphis, and Sen. Mark Norris, R-Memphis.

A bill that would allow people who voluntarily commit themselves for mental health treatments to obtain a conceal-carry pistol permit after seven years. Those involuntarily committed would not be eligible. The measure is sponsored by Sen. Mae Beavers, R-Mount Juliet, and Rep. Nathan Vaughn, D-Kingsport.

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