Tenn. Op. Atty. Gen. No. 96-080
Office of the Attorney General
State of Tennessee
Opinion No. 96-080
April 25, 1996
Right to keep and bear arms as applied to certain statutes
regulating firearms.
Ben West, Jr.
State Representative
60th Legislature District
Suite 34 Legislative Plaza
Nashville, Tennessee 37243-0160
QUESTIONS
Article I, Section 26 of the Tennessee Constitution provides
for the right to keep and bear arms for the common defense.
Do the following statutes violate this provision?
1. Tenn. Code Ann. S 39-17-1307(a), making it an offense to
carry a firearm with the intent to go armed;
2. Tenn. Code Ann. S 39-17-1309, making it an offense to
carry a firearm on school property;
3. Tenn. Code Ann. S 39-17-1311, making it an offense to
possess or carry a firearm with the intent to go armed in a
public park or recreational facility; and
4. Tenn. Code Ann. S 39-17-1305, making it an offense to
possess a firearm on any premises where alcoholic beverages
are sold.
OPINIONS
Each of these statutes is a valid exercise of the state's
regulatory authority under Article I, Section 26 of the
Tennessee Constitution and is therefore constitutional.
ANALYSIS
Article I, Section 26 of the Tennessee Constitution states
"That the citizens of this State have a right to keep and to bear
arms for their common defense; but the Legislature shall have
power, by law, to regulate the wearing of arms with a view to
prevent crime." Tennessee case law explains the purpose of the
last clause.
The additional clause in the Constitution of 1870 was
adopted to remove all doubt as to the power of the Legislature to
regulate the use of the arms which the citizens had a right to
keep.
It was not intended that the keeping or using of such
arms should be prohibited, but that the use thereof by wearing
or carrying about the person might be so regulated by law as to
prevent crime. It was crime resulting from the habit of
wearing arms, or of going armed, which the Convention sought to
prevent, by expressly conferring this power of the Legislature.
The State v. Wilburn, 66 Tenn. 47,62 (1872).
Andrews v. The State, 50 Tenn. 165 (1871) is probably the
most important case on Article I, Section 26. The Andrews case
explains that the object of the provision is the efficiency of
the people as soldiers. The Court indicated that the use of
these arms can be regulated in order to prevent crime. Their use
can be "limited by the duties and proprieties of social life,
and such arms are to be used in the ordinary mode in which used
in the country, and at the usual times and places." Id., at
181-82. The Court explained that prohibitions against carrying
arms to church or other public assemblages were valid since this
was not an appropriate use for them or necessary for training.
So we may say, with reference to such arms, as we have
held, he may keep and use in the ordinary mode known to the
country, no law can punish [p.186] him for so doing, while he
uses such arms at home or on his own premises; he may do with
his own as he will, while doing no wrong to others. Yet, when
he carries his property abroad, goes among the people in public
assemblages where others are to be affected by his conduct,
then he brings himself within the pale of public regulation,
and must submit to such restriction on the mode of using or
carrying his property as the people through their Legislature,
shall see fit to impose for the general good.
Id., at 185-86.
1. Tenn. Code Ann. S 39-17-1307(a)(1) states that "a person
commits an offense who carries with the intent to go armed a
firearm," a certain kind of knife or a club.
This statute does
not prohibit owning or carrying a firearm. It prohibits the
carrying of a firearm with the intent to go armed. Thus, the
carrying of a firearm is prohibited only when it is carried in a
manner so as to be "readily accessible and available for use in
the carrying out of purposes either offensive or defensive."
Kendall v. State, 118 Tenn. 156, 101 S.W. 189 (1906). This
statute does not, in the opinion of this Office, infringe upon
the citizen's "right to keep and bear arms for their common
defense."
The right established by Article I, Section 26 does not
apply to every type of arm. Andrew v. The State, supra, and
Aymette v. The State, supra, clearly establish that
the right
applies only to arms that "make up the usual arms of the citizen
of the country, and the use of which will properly train and
render him efficient in defense of his own liberties, as well
as of the state." Andrews v. The State, 50 Tenn. at 179.
Weapons not falling in this description do not receive the
protection of Article I, Section 26 at all.
Wearing constitutionally protected weapons can still be
regulated as long as it is done "with a view to prevent crime."
Andrews indicates that such regulations must "bear some well
defined relation to the prevention of crime...." Id., at 181.
This would include limiting the use of such arms to the
ordinary mode and at the usual times and places. Id., at 182.
The right to keep and bear arms "is no more above regulation
for the general good than any other right." Id., at 185,
quoting Aymette v. The State, 21 Tenn. at 159.
Tenn. Code Ann. S 39-17-1307(a)(1) is within the powers of the
state and bears a well defined relation to the prevention of
crime by regulating the manner in which firearms may be carried.
A firearm carried without the intent to go armed is less likely
to be used in a crime.
Tenn. Code Ann. S 39-17-1308 lists a number of defenses to
the application of Tenn. Code Ann. S 39-17-1307. Included in the
list is when the person is carrying a weapon that is unloaded and
unconcealed about his person and the ammunition is not in the
immediate vicinity; when the person is authorized to possess or
carry a firearm pursuant to Tenn. Code Ann. S 39-17-1315, the
handgun permit statute; when the person is at home, at his place
of business or on the premises; and when the person is lawfully
hunting, trapping or engaged in other lawful activity. Thus the
application of Tenn. Code Ann. S 39-17-1307 is rather narrow.
The statutory scheme envisions many situations when the carrying
of a weapon does not violate this statute.
2. Under Tenn. Code Ann. S 39-17-1309(c)(1), it is an
offense to possess or carry a firearm on public or private school
property, with certain exceptions. Andrews v. The State, supra,
recognized that even constitutionally protected weapons could be
prohibited in public assemblies since there was no appropriate
use for them there. It is, therefore, the opinion of this Office
that Tenn. Code Ann. S 39-17-1309(c)(1) was enacted with a view
to prevent crime and is a valid exercise of the state's
regulatory authority under Article I, Section 26 of the Tennessee
Constitution.
3. Tenn. Code Ann. S 39-17-1311(a) makes it an offense to
possess or carry a firearm, with the intent to go armed, with
certain exceptions, in or on the grounds of any public park,
playground, civic center or other building facility, area or
property owned, used or operated by any municipal, county or
state government, or instrumentality thereof, for recreational
purposes. The analysis of this statute is the same as the
analysis under question one. Only the possession or carrying with
the intent to go armed in these designated places is prohibited.
Furthermore, the statute merely regulates the carrying of these
weapons in places of public assemblage. This is permitted by
Andrews v. The State, supra. It is the opinion of this Office
that this statute is a valid exercise of the state's regulatory
authority under Article I, Section 26.
4. Tenn. Code Ann. S 39-17-1305(a) states: "It is an offense
for a person to possess a firearm on the premises of a place open
to the public when alcoholic beverages are served or in the
confines of a building where alcoholic beverages are sold." A
previous statute was more limited, prohibiting carrying certain
weapons for the purpose of going armed while inside the confines
of the building of any establishment licensed to sell beer, wine
or any other alcoholic beverage. Tenn. Code Ann. S 39-6-1717
(repealed by 1989 Public Acts, Chapter 591). In Gibbs v. Blount
County Beer Board, 664 S.W.2d 68 (Tenn. 1984), the Beer Board
refused to issue a license to sell beer at a market which was
also housed a gun shop. The same entrance was used for both
businesses, the gun shop occupying a small area set off from the
store by a glass display case and panel wall. The Beer Board
refused to issue the license because the sale of beer in the
same building where guns were bought, sold, traded and repaired
interfered with the public health, safety and morals. The
Tennessee Supreme Court quoted Tenn. Code Ann. S 39-6-1717 and
stated:
If this license is granted the customers of the gun shop
will clearly be "inside the confines of the building" where
alcoholic beverages will be sold. We are entitled to assume
that most, if not all of them, will be carrying weapons
described in T.C.A. S 39-6-1701. The practical problem
created is how can the public distinguish between those
persons who are carrying weapons with intent to go armed,
from those who have no intent to go armed. Obviously, it is
an impossibility to make such distinction until after the
fact of danger and potential harm to the public has occurred.
As the trial judge indicated, the Legislature in enacting
T.C.A. S 39-6-1717 has clearly said that it is against public
policy to commingle persons carrying weapons with intent to
go armed with other members of the public in places where
alcoholic beverages are sold. When the public cannot distinguish
the violators of that section from the non-violators, we think
it follows as the night follows the day that the granting of a
beer permit in the circumstances of this case would interfere
with the public health, safety and morals.
Gibbs v. Blount County Beer Board, 664 S.W.2d at 69.
The Court's observations clearly lay out the potential for danger
and the difficulty of distinguishing between a mere possessor and
a possessor having the intent to go armed. Although this case
does not address the right to bear arms, it does indicate the
justifications for statutes like Tenn. Code Ann. S 39-17-1305.
Due to the limited application of the statute to a place of
public assemblage, see Andrews v. The State, supra, and the clear
purpose of the statute, to decrease the chance of an altercation
involving firearms in an establishment that sells alcoholic
beverages, it is the opinion of this Office that Tenn. Code Ann.
S 39-17-1305 is a valid exercise of the state's regulatory
authority under Article I, Section 26.
Charles W. Burson
Attorney General & Reporter
Michael E. Moore
Solicitor General
Andy D. Bennett
if appropriate.
