13, these fascinating questions are for another article and another day. But at a minimum, the very existence of this provision makes it clear that the right to bear arms clause of Article i, section 26, does not include the protection of a collective right to have a well-regulated militia to which one may or may. That right is addressed elsewhere. Second, it seems unlikely that a provision in Tennessee's Declaration of Rights is intended to protect an institution of state power against federal power. Such a provision would be void under the supremacy Clause of the federal Constitutions. 14 Nor-in spite of the "common defense" language of the tennessee constitution-would a characterization of the right as a state's right make sense.
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The most obvious involves the federal provision's reference to the "Militia." Many gun control proponents have argued that the second Amendment merely ensures some degree of independence for state-regulated militias (usually characterized as the modern day national guard thus, it does not protect individual rights. 10, whatever the merits of this "collective right" argument in day the context of the federal Constitution, 11 it is unpersuasive in the context of the tennessee provision for for two reasons. First, the term "militia" does not appear in the tennessee provision. Rather, the provision is aimed at the "citizens of this State which seems to rule out any sort of governmental body. This is made clear elsewhere in the tennessee constitution. Article i, section 24 provides: That the sure and certain defense of a free people, is a well regulated militia; and, as standing armies in time of peace are dangerous to freedom, they ought to be avoided as far as the circumstances and safety. 12, this provision does not deal with the right to bear arms. Rather this provision is the collective right clause of the tennessee constitution. Unlike the federal Constitution, the tennessee constitution separates its militia and right to bear arms provisions. However, the present-day effect of this collective right provision is not entirely clear: would it guarantee the right (at least subject to being "well regulated of individuals to form private militias of the sort common in the early days of this state? Or (p.650)would it at least produce a duty on the part of the state to maintain and regulate a militia by requiring ownership of arms and competence in their use?
A discussion of the right to bear arms, as is true with a discussion of any state constitutional provision, tends to call up thoughts of the corresponding provision in the federal Constitution. Thus, it desk is also worthwhile to look at the second Amendment to the. Constitution by way of comparison. The second Amendment provides: "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." 7, immediately, important differences appear. Interpretation of the second Amendment is not easy: as Professor levinson notes, it is one of the murkiest constitutional provisions. 8, nor has there been much help from the (p.649)Supreme court. 9, nonetheless, some arguments that have been raised with regard to the federal Second Amendment are clearly inapplicable to the tennessee constitution's right to bear arms clause.
Both provisions grow out of friendship the same eighteenth-century variety of republicanism and appear to have been meant to serve the same purposes. Yet, the tennessee constitution's provision is drafted differently, and has been more thoroughly interpreted in the courts. As a result, its meaning is likely to be somewhat clearer to modem readers. The tennessee provision and the. Amendment: Some comparisons and Contrasts, though it may be unstylishly straightforward, i have always believed that the text is a good place to start when examining a constitutional issue. 5, while not every provision of law is clear and unambiguous, we owe it to the drafters-and to ourselves, as lawyers-to begin with the language that is in front. Tennessee's Constitution guarantees: "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, essay by law, to regulate the wearing of arms with a view to prevent crime.".
Brennan., of the United States Supreme court. 2, in the case of the right to bear arms, the initial article was Sanford levinson's. The Embarrassing Second Amendment, 3 which concluded-perhaps surprisingly in light of its author's left-leaning stance-that the second Amendment to the United States Constitution must be taken seriously, even by those of us in legal academia, despite a fairly widespread desire to wish it away. 4 (p.648 this brief Essay combines these two trends by addressing another neglected subject: the right to keep and bear arms under the tennessee constitution. As far as i am able to determine, this topic has never been the subject of scholarly commentary. I hope that my contribution to this Symposium will, in its own small way, be as successful in stimulating discussion in this field as the works mentioned above have been in theirs. An examination of the tennessee constitution in this context may also be useful in the general debate over the meaning of the second Amendment to the federal Constitution.
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Back, home, copyright 1994 Glenn Harlan reynolds. Originally published as 61 Tenn. Permission for www use at this site generously granted by the reussir author. For educational use only. The printed edition remains canonical. For citational use please obtain a back issue from William. Hein., 1285 main Street, buffalo, new York 14209;.
Glenn Harlan reynolds introduction, in recent years, two previously moribund subjects have received a sudden burst of scholarly attention. One is state constitutional law, a subject that until recently was almost completely ignored. Another is the constitutional right to keep and bear arms, a subject that has always received a great deal of attention among nonacademics (chiefly those opposed to gun control but until recently has received little attention in the scholarly press. Both subjects are now the focus of much more writing, primarily because of the publication of articles by well-known authors that suggest the topics deserve attention. In the case of state constitutions, two important articles started the trend: one by justice hans Linde, of the Oregon essay Supreme court, 1 and one by justice william.
If it be, show. I read it attentively, and could see nothing to warrant a belief that the civil power can be called for. I shall be glad to see the power that authorizes Congress to. The sheriff will be aided by military force. The most wanton excesses may be committed under color of this; for every man in office, in the states, is to take an oath to support it in all its operations. The honorable gentleman said, in answer to the objection that the militia might be marched from New Hampshire to georgia, that the members of the government would not attempt to excite the indignation of the people.
Here, again, we have the general unsatisfactory answer, that they will be virtuous, and that there is no danger. Reynolds, "The right to keep and bear Arms Under the tennessee. Constitution forthcoming in 61, tennessee law review 2 (Winter, 1994 extensively discussing the second Amendment in "Firearms Purchases and the right to keep Arms. West Virginia law review 1 (1993). Tahmassebi, "Gun Control and Racism 2 george mason civil Rights Law journal (1991). Moncure,., "Who is the militia the virginia ratifying Convention and the right to bear Arms 19 Lincoln Law review 1 (1990). The right to keep and bear arms under the tennessee constitution: a case study in civic republican thought.
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In this great, this essential part of the constitution, if you are safe, it is not from the constitution, but from the virtues of the men in government. If gentlemen are willing to trust themselves and posterity to so slender and improbable a chance, they have greater strength of nerves than professional I have. The honorable gentleman, in endeavoring to answer the question why the militia were to be called forth to execute the laws, said that the civil power would probably. He is driven to say, that the civil power may do it instead of the militia. Sir, the military power ought not to interpose till the civil power refuse. If this be the spirit of your new. Constitution, that the laws are to be enforced by military coercion, we may easily divine the happy consequences which will result from. The civil power is not to be employed at all.
Implication is to be the foundation of our civil liberties, and when and you speak of arming the militia by. Page 387 concurrence of power, you use implication. But implication will not save you, when a strong army of veterans comes upon you. You would be laughed at by the whole world for trusting your safety implicitly to implication. The argument of my honorable friend was, that rulers might tyrannize. The answer he received was, that they will not. In saying that they would not, he admitted they might.
it is to have arms, and though our Assembly has, by a succession of laws for many years, endeavored to have the militia completely armed, it is still far from being the case. When this power is given up to congress without limitation or bounds, how will your militia be armed? You trust to chance; for sure i am that nation which shall trust its liberties in other hands cannot long exist. If gentlemen are serious when they suppose a concurrent power, where can be the impolicy to amend it? Or, in other words, to say that Congress shall not arm or discipline them, till the states shall have refused or neglected to do it? This is my object. I only wish to bring it to what they themselves say is implied.
To congress is given the power of "arming, organizing, and disciplining the militia, and governing such part of them as may be employed in the service of the United States." to the state legislatures is given the power of "appointing the officers, and training the. If the states have the right of arming them,., concurrently, congress has a concurrent power of appointing the officers, and training the militia. If Congress have that power, it is absurd. To admit this mutual concurrence of powers will carry you into endless absurdity that Congress has nothing exclusive on the one hand, nor the states on the other. The rational explanation is, that Congress shall have exclusive power of arming them,., and that the state governments shall have exclusive power of appointing the officers,. Let me put it in another light. May we not discipline and arm hotel them, as well as Congress, if the power be concurrent? So that our militia shall have two sets of arms, double sets of regimentals,.; and thus, at a very great cost, we shall be doubly armed.
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Patrick henry's "That every man be armed." (Dist. The debates in the several State conventions on the Adoption of the federal. Constitution (3 Elliot's Debates 384-7 virginia, saturday, june 14, 1788. Ml, the context of "that every man be armed" was who would provide for the arming of the militia, the states or the federal government not a personal right. Chairman, in my judgment the friends of the opposition have to act cautiously. We must make a firm stand before we decide. I was heard to say, a few days ago, that the sword and purse were the two great instruments of government; and I professed great repugnance at parting with the purse, without any control, to the proposed system of government. And now, when we proceed in this formidable compact, and come to the national defence, the sword, i am persuaded we ought to be still and more cautious and circumspect; for I feel still more reluctance to surrender this most valuable of rights. As my worthy friend said, there is a positive partition of power between the two governments.