Does Tennessee Already Have Permitless Firearms Carry, & Not Know It?

Opinion

Tennessee – -(AmmoLand.com)- There have been numerous bills introduced in the Tennessee General Assembly in recent years designed to restore Constitutional/Permitless Carry in Tennessee.

Dean Weingarten recently reported in AmmoLand News on the virus shutdown jeopardizing the 2020 Constitutional Carry effort. So far, these bills have never made it out of committee, in spite of having a Republican Supermajority since the 2012 election.

Before the Coronavirus pandemic, it appeared that Governor Bill Lee’s Pseudo-Constitutional Carry bill was fast-tracking toward passage in 2020. But here in the middle of April, the General Assembly is in recess, and who knows when it will reconvene.

There is an argument to be made, however, that the Tennessee law already supports Constitutional Carry. The argument revolves around the three words, “other lawful activity”.

Huh?

Other lawful activity appears in at least two places in Tennessee law, with a slight, but significant difference in wording in the two places:

• TCA 39-17-1303, Section (a)(1) defines the unlawful sale, loan or gift of a firearm to a minor. Section (b)(1) states that it is a defense to prosecution under (a)(1) if a firearm “was loaned or given to a minor for the purposes of hunting, trapping, fishing, camping, sport shooting or any other lawful sporting activity… .”

Note the inclusion of the word sporting as a modifier of the word activity in this section.

• TCA 39-17-1308 defines defenses to unlawful possession or carrying of a weapon under TCA 39-17-1307 (which creates the offense of carrying a firearm or club with intent to go armed). Section (a)(4) provides a defense against the application of 39-17-1307 if the possession or carrying was “incident to lawful hunting, trapping, fishing, camping, sport shooting or other lawful activity… .

Note the exclusion of the word sporting as a modifier of the word activity in this section.

It appears, then, that the legislature intended to use lawful sporting activity only when dealing with conveyance to a minor. On the other hand, the plain language legislative intent when prohibiting the possession or carrying of a weapon was to include all other lawful activity.

Why is this significant?

When legislative bodies include something in a statute but exclude it from another, they obviously intend for each statute to mean what it says. Courts and Tennessee Attorneys General have held to this plain language rule that legislation means what it says.

The Cornell Law School’s Legal Information Institute states,

“Any question of statutory interpretation begins with looking at the plain language of the statute to discover its original intent. . .The legislature is presumed to act intentionally and purposely when it includes language in one section but omits it in another.”

Everycrsreport.com which publishes reports from the Congressional Research Service, states,

“The starting point in construing a statute is the language of the statute itself. The Supreme Court often recites the “plain meaning rule,” that, if the language of the statute is plain and unambiguous, it must be applied according to its terms. . . .”

The Tennessee Attorney General in Opinion No. 05-154 (October 11, 2005) stated,

“The primary objective of statutory construction is to ascertain legislative intent. If the language of the statute is clear and unambiguous, courts are supposed to ascertain that intent from the plain and ordinary meaning of the language. . . .Under rules of statutory construction, the expression of one thing implies the exclusion of others.”

In Opinion No. 00-031 (February 22, 2000), the Tennessee Attorney General stated,

“When interpreting the meaning of a statute, a court cannot dismiss a change in wording which the legislature has chosen to make to the statutory provisions.”

So, what is lawful activity?

Lawful activity is cited in the Free Dictionary as, ”allowed, recognized, or sanctioned by law; legal.”

Is it lawful to get out of a car and walk across a parking lot in Tennessee? To go into a store or business?

The obvious answer is yes, it is lawful to do those activities.

Therefore, it must be lawful to carry a weapon in Tennessee without a permit.

What will it take to get this nuance in Tennessee law recognized barring a citizen getting arrested carrying without a permit and winning in court?

Governor Bill Lee, who has stated his desire for Constitutional Carry, could issue a proclamation recognizing the right to carry.

The Tennessee Attorney General could issue an opinion on the matter, upon request by a member of the General Assembly.

OR

The General Assembly could show their trust in the citizens of Tennessee and definitively pass Constitutional Carry for the governor’s signature as soon as they reconvene.

About Liston Matthews

Liston Matthews has been involved in the gun rights movement since 1971. He was involved in the passage of the Tennessee carry law, and its improvements. He has testified before local legislative bodies. He has contacted politicians and had numerous editorial letters published. He believes that politicians must be carefully vetted at the local level because few change their positions when they move to higher office.

Liston writes his own blog Good Hill Press is an AmmoLand News contributor, and formerly wrote at Examiner.com.