Will Tennessee’s Governor and Legislature Stand Up for the Constitution or Bow to the U.S. Supreme Court?

Jul 28, 2023 by David Fowler

Will Tennessee’s Governor and Legislature Stand Up for the Constitution or Bow to the U.S. Supreme Court?
Yesterday morning I sent an open letter to Governor Lee and our state’s legislators about the anticipated special session implicating the “right to keep and bear arms.” In sum, the issue before them is whether they will stand up for Tennesseans and both our state and federal constitutions or give obeisance to United States Supreme Court essays (opinions) about the Fourteenth Amendment. The edited and improved version as directed to them is below. You may learn some basic things about the U.S. Constitution I wasn’t even taught in law school.
As explained below, you [Governor and state legislators] must first decide which "version" of the United States Constitution your oath requires you to uphold -- the textual one or the U.S. Supreme Court created one -- and you will need to appreciate the effect that decision will have on the importance of the provision in Tennessee’s constitution regarding the “right to keep and bear arms” (Article I, § 26). 

As you know, your oath of office requires you to uphold both the state and federal constitutions when you can do so, unless the Supremacy Clause in Article VI, Clause 2 of the U.S. Constitution requires otherwise.

The interpretation of the U.S. Constitution required of you by your oath means you must give full consideration to the United States Supreme Court’s most recent pronouncement on the Second Amendment, New York State Rifle & Pistol Assn. v. Bruen (June 2022). In Bruen, the Court said the interpretation of the Constitution must be “centered on constitutional text and history.” 

I hope I can help you understand and apply that interpretative standard to defend the text of our U.S. Constitution.

The Text of the Second Amendment

The text of the Second Amendment is straightforward: "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." 

It contains a “prefatory clause” and an “operative clause” (District of Columbia v. Heller 2008). The Supreme Court has rightly said: “The Amendment could be rephrased, ‘Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.’"

The Court also rightly opined that we must “ensure that our reading of the operative clause is consistent with the announced purpose” in the prefatory clause.

Thus, any reading of the “right to keep and bear Arms” must, at a minimum, be consistent with a state’s need for a militia as a “security” for a “free state” of Tennessee. That may sound strange, so let me explain.

Forgotten History: The Congressionally Adopted Purpose of the Bill of Rights

It has been forgotten that “[t]he Bill of Rights, including the Second Amendment, originally applied only to the Federal Government” (McDonald v. City of Chicago 2010). 

Worse yet, few know that Congress voted on the purpose of the several amendments known as the Bill of Rights. That purpose is in the Preamble to the Bill of Rights, and it provides in pertinent part: 

The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution. (emphasis supplied)

In other words, the declared purpose of the Second Amendment was to restrict the powers of the federal government, not grant a right.

In fact, the right to keep and bear arms "is not a right granted by the Constitution,” as the United States Supreme Court noted in its post-Fourteenth Amendment decision, United States v. Cruikshank (1876), and reaffirmed in Heller (2008). 

Therefore, the Amendment’s overarching purpose is a jurisdictional one, preventing a “misconstruction” and “abuse” of the civil law (enacted law) powers delegated to Congress under Article I, Section 8 vis-à-vis the broader common law powers of the several states. 

How the Jurisdictional-Restriction Interpretation Works in Practice

For example, the Second Amendment prohibits Congress and the federal judiciary from construing Congress’s powers to “raise and support armies” in a way that would infringe the “right of the people to keep and bear Arms” because the state’s militia is Tennessee’s “security” as “a free State.”
This “security” sounds foreign and even meaningless to us given the size of today’s federal government, but consider its importance to Governor Abbott in Texas right now in securing his state's borders. 

But the historical need for the restriction in the Second Amendment is enlarged when it is realized that Congress also has the authority to “provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions” and “provide for organizing, arming, and disciplining, the militia.”  

A state’s militia could have been and still can be overrun by expansive interpretations of Congress’s powers in relation to state militias. 

The Relevance of the Preamble to Interpreting Tennessee’s Constitution

In keeping with the Ninth and Tenth Amendments, and in full recognition of the Second and Fourteenth Amendments, Article I, § 26 of the 1870 constitution of Tennessee was adopted. It provides: 

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. (emphasis supplied) 

In short, the Tennessee constitution declares and affirms the pre-existing common law right to keep and bear arms found in the Second Amendment, but given the limitation on the powers of Congress regarding that right, Tennessee exercised the powers reserved to it by the Tenth Amendment to address “wearing arms [not keeping them!] to prevent crime.” 

Preventing crime could be a restriction on wearing arms or a greater freedom to wear them. This limited policy decision was left open by the people of Tennessee for your disposition as their representatives. 

The Importance of an Enacted Preamble to Interpretation of the Second Amendment

“[I]n the case of Congress’s enacted-but-unratified preamble to the Bill of Rights, as proposed in 1789, jurists from the beginning treated this language as authoritative in resolving textual ambiguity.”[1]

However, in City of Chicago v. McDonald (2010), in deciding to apply the Second Amendment against the states, the Supreme Court did not discuss or analyze the congressionally-adopted purpose for the Second Amendment stated in the Preamble to the Bill of Rights.

Instead, the Court treated the Amendment more in the nature of a rights declaration (as opposed to a jurisdictional limitation) and, therefore, held that the Second Amendment applied to the states. Consequently, that decision put in question the enforceability of Tennessee’s constitutional provision. 

However, with the addition of this historical information about the Preamble into the legislative record, I believe it can rightly be argued that McDonald is not controlling precedent. That means the legislature has the authority to exercise its powers under the Tennessee constitution. 

The Importance of a Robust Historical Record to Constitutional Interpretation

The importance of the historical record you choose to put forward is the observation made in the Bruen opinion, authored by Justice Clarence Thomas on behalf of the six-justice majority. This is how Justice Thomas rejected the dissenting justices’ concern with basing a constitutional decision on the adequacy of the historical record before the Court: 
The job of judges is not to resolve historical questions in the abstract; it is to resolve legal questions presented in particular cases or controversies. . . . For example, "[i]n our adversarial system of adjudication, we follow the principle of party presentation." [citation omitted] Courts are thus entitled to decide a case based on the historical record compiled by the parties.

In other words, a full and robust record about a constitutional provision’s “text and history” can be the difference between the two constitutions being construed correctly or incorrectly. If you believe the Preamble is important history, make it a part of the record in any litigation that might ensue.

The Judicial “Process” that Applied the Second Amendment to the States

The reason the Second Amendment was applied against the states is because the United States Supreme Court said so in McDonald, not because of anything in the text of the Fourteenth Amendment that requires any provision in the Bill of Rights be applied to the states.

In McDonald, the Court admitted what it had been doing for decades— essentially circumventing an 1873 decision, The Slaughter-House Cases, that very narrowly construed the applicability to citizens of the Fourteenth Amendment’s Privileges and Immunities Clause, rendering it largely meaningless. 

The Court acknowledged “many legal scholars dispute the correctness of the narrow Slaughter-House interpretation.” The most notable is Justice Thomas, who wrote the Bruen opinion. 

But rather than address the merits of that precedent and properly interpret the Privileges and Immunities Clause, as the gun owners and Justice Thomas urged, the McDonald Court acknowledged that “[f]or many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause.”

What is Wrong with This Fourteenth Amendment Due Process Interpretation. 

In sum and as explained below, it violates the “text and history” requirement in Bruen

In McDonald, the Court acknowledged that its circumvention of the text and history of the Privileges and Immunities Clause was the start of an “era in which the Court began the process of ‘selective incorporation’ under the Due Process Clause.” (emphasis supplied)

In other words, the Court, by judicial fiat, imposed on the text and history of the Due Process Clause—a provision that addresses process, not substance—a non-textual “process” by which five justices decide which provisions in the Bill of Rights it wants to apply to the states.

This judicially-created extraconstitutional, non-textual “doctrine” of “substantive due process” is bad enough, but it did not stay anchored to the provisions in the Bill of Rights. Substantive due process has been used to foist abortion and same-sex “marriage” on the states, and, more recently, by federal district courts to prevent states from regulating the medical disordering of a child’s reproductive system.

Why You Should Defend Tennessee’s Constitution Over a SCOTUS Opinion

I believe I have shown you how you can uphold the Tennessee constitution without subjugating it to Supreme Court opinions about the Fourteenth Amendment and an “incorporation” against the states of the Second Amendment that did not consider the Preamble. Now I will explain why I think you should do so.

Defending Tennessee’s constitution against the McDonald opinion’s application of its “doctrine” of substantive due process, which is not the same as what the phrase “right to keep and bear Arms” means, could give the United States Supreme Court an opportunity to continue the constitutional course correction begun by the rejection of substantive due process’s application to abortion in Dobbs v. Jackson Women’s Health Organization

In the context of the domestic issue of arms, you can take a step toward reclaiming our state’s sovereignty from a Court that has been re-writing state constitutions for decades through its “doctrine of substantive due process.” A substantive due process that allows federal judges to usurp state authority must go, and if the governor calls a special session, you will be privileged to work toward that end while also protecting gun rights.

Responding to the Naysayers That This Can’t Work

Some will tell you the high Court is not ready to reverse McDonald, let alone get rid of substantive due process, and I suspect the Court would not want to do so. But that alone should not be determinative.

Court decisions do not have to get rid of substantive due process all at once as Dobbs demonstrated by not getting rid of it in instances not before the Court, like gay rights.

But, done rightly, you can put pressure on the Court to reconsider Slaughter-House and its interpretation of the Privileges and Immunities Clause, even as Mississippi successfully put the Court in the position of needing to reconsider a 50-year precedent. Roe v. Wade. 

I suspect Justice Thomas will argue to his colleagues, as he did in McDonald, that “the right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment's Privileges or Immunities Clause” (emphasis supplied). His interpretation is the proper interpretation of the Fourteenth Amendment.

If that clause is applied in this one instance and the right given the common law meaning it had in 1868, then all the made up rights “granted” by the Supreme Court in recent decades bearing no relation to our common law history will be subject to reconsideration and the judicially-usurped power of the states to address domestic issues consistent with our common law rights and heritage can begin to be returned to them.

Thank you for your consideration, and I am happy to answer any questions you might have.
[1] The paragraph is a quotation from a forthcoming book by Professor David Upham, University of  Dallas, I was privileged to review. Citations were omitted for convenience but can be supplied.

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