2011 Legislative Review - “Its a start…?”

2011 TFALAC Legislative Summary

Summarized below are the bills which were enacted in 2011 from those that we tracked.  None of them address any meaningful changes in the law that are significant to those who promote the 2nd Amendment, to hunters, to firearms owners, and/or to those concerned about self-defense.  However, the events of 2011 do provide information that can be relevant to the decisions that 2nd Amendment supporters will need to make during the 2012 primary season and general elections.

Following the report on bills, there is a discussion about the 2011 session and what TFA will be looking for in 2012.

2011 Legislation

2011 Observations

Many of those now holding elected offices, both Republicans and Democrats, proclaim that they are "good on the 2nd Amendment" or "strong on the 2nd Amendment."   Truly, there are numerous individuals who have been and are serving as members of the General Assembly who individually have well established and credible voting records of supporting the rights protected by the Second Amendment and the State Constitution.

Since 1994, when Tennessee legislators first enacted a widely available civilian handgun permit law in Tennessee, we have seen the General Assembly slowly improve the process for issuing civilian carry permits and remove a few of the infringements on our 2nd Amendment and State constitutional rights.  We have seen the passage of expanded range protection.  We have seen the passage of laws to increase the amount of public hunting lands.  We have seen also the defeat of numerous bills that would have further infringed these rights. 

Over the years, these improvements came with sponsors and votes from both parties.  These issues have generally obtained good support from conservatives in both parties and have often been opposed by liberals in both parties.  A recent example of this would be the passage in 2009 and then again in 2010 of the two bills which addressed the statutory prohibition on civilian handgun permit holders carrying in places that served alcohol or beer.  The two bills which were enacted were carried by former Senator Doug Jackson (D) and by Representative Curry Todd (R).  In each year, Governor Bredesen (D) vetoed the bills and veto overrides were successful.  These were not the only bills in those two years which appropriately addressed this issue because several versions of each bill in each year were introdcued by several other legislators and each bill had numerous co-sponsors.  Of note, Beth Harwell (R), the current Speaker of the House, voted against the bills and the overrides in both 2009 and 2010 which underscores that not all legislators are good on the 2nd Amendment nor the constitutions.

Other progun legislation during the 2009 and 2010 legislative sessions that had broad bi-partisan support included the 10th Amendment based Firearms Freedom Act that was carried by Sen. Beavers (R) and former Rep. Fincher (D) and also the repeal of bans on permit holders carrying firearms in Federal and State parks that Sen. Beavers (R) and Rep. Niceley (R) carried. 

Following the end of the 106th General Assembly (2009-2010 sessions) and the 2010 elections, the TFA was told by Senate leadership that they felt that they needed to work on other issues in 2011 and that they would not  devote a lot of time to 2nd Amendment legislation in 2011.  There was one exception, TFA was told that the employee parking lot protection legisation would be passed in 2011.  TFA took the position that, in light of that request, it would not seek constitutional carry or other big changes in 2011 but that it would be involved with any bills in the topic areas that we watch if any such bills were to be introduced.

2011 represents the first time since the Civil War that the Governor's office, the Senate and the House of Representatives have simultaneously been either held by or under the majority control of the Republican party in Tennessee.  In 2011, Republicans held 20 of 33 seats in the Senate and 64 of 99 seats in the House of Representatives.  Even though TFA had been told in 2010 that it should not expect a lot of 2nd Amendment legislation in 2011, specific legislation was promised, technical adjustments were expected and aid in killing anticipated bad legislation (including almost constant "class" legislation) was needed.  TFA understood that the leadership in both houses in 2011 intended to focus on other issues which they felt were much more important than constitutional rights under the 2nd, 7th and 10th Amendments.  Certainly, a review of the  391 Public Chapters that they did pass including those issues listed above demonstrates the comparative importance of what did get passed.

Of course, there are other bills which although not enacted into law this year, did receive time and resources which could not be allocated to working on 2nd Amendment, 7th Amendment and 10th Amendment issues such as HB0212 which went all the way to the House Floor on a vote of 72 to 12 and deals with a very pressing issue - unrestrained pets in motor vehicles:

SECTION 1. Tennessee Code Annotated, Title 55, Chapter 8, Part 2, is amended by adding a new section thereto, as follows:

Section 55-8-202. No person shall operate a motor vehicle with an unrestrained animal in the front driver seat. For the purposes of this section, a restrained animal means an animal secured in a harness or vehicle seat, confined in a box, or hard or soft sided travel crate, or being held by a person in the front passenger seat or in a rear seat. A violation of this section is punishable as provided by § 55-8-136. 

2011 presents a paradox for voters.  Although the Senate has been under Republican control for several years, 2011 represented the first time that Republicans truly controlled the House leadership and committee appointments.  House Republicans elected Beth Harwell as Speaker on a 1 vote margin.  This determination cast a light on the path we would expect in 2011.

So, what happened on the employee protections / parking lot bill in 2011? 

• Rep. Joshua Evans (R) introduced HB2021 which became the chosen bill on the expected employee protections/parking lots issue.  There was a Democrat bill on the same issue but it was made clear unofficially that the Republicans would not let the Democrat bill go through because they would claim credit for passing it.  So, apparently, the Republicans wanted credit for what would happen on the employee protections/parking lot issue.
• HB2021 received heavy lobbying pressure from "big business" such as Federal Express.  It has been suggested that as many as 15 business lobbyists were working against this bill - but, frankly, since the same issue was introduced in the prior 2 years, that was not unexpected. 
• HB2021 was amended, without TFA's nor NRA's support, in the House Judiciary.  Rep. Evans apparently agreed to remove everything that TFA understood would pass this year.  It was later determined that Rep. Evans had made a deal with at least one and perhaps two other Republicans who served on the Judiciary committee who agreed to cosponsor the bill and get it to the House floor but only if the employee protections were not added back into the bill.  An agreement involving Rep. Evans (which he announced at a TFA meeting in Nashville) existed among a few Republicans that if any amendment were offered on the House floor that would restore the employee protections that Rep. Evans, as the sponsor, would pull the bill from the House floor and send it back to the House Judiciary committee for the purpose of killing the bill.
• The co-sponsors on HB2021 were Dennis, McDonald, Bass, Rich, Weaver, Hill, Holt, Lundberg, Matheny, Watson, Faison, Shipley, Butt, Womick, and Todd.  Of those, Republicans Watson, Dennis, Lundberg, Faison, Matheny, Rich also served on the House Judiciary committee and it is believed that one or more of these co-sponsors was/were the ones who would not support the employee protections effort.  Based on subsequent discussions, I would probably eliminate Faison and Matheny from consideration.
• When Rep. Eddie Bass (D) proposed an amendment on the House floor, which amendment TFA supported, Rep. Evans made a motion to "table" the proposed Bass amendment.  A tabling motion is a procedural motion that can kill an amendment before it is debated.  The motion to table the amendment failed with only 35 votes.  As TFA previously reported, 33 Republicans voted with Rep. Evans' lead to table the Bass Amendment.  At this point, it is not clear how many of these 33 Republicans knew that Rep. Evans was trying to kill the entire bill.  When the tabling motion failed, Rep. Evans sent the bill back to the House Judiciary committee.  The vote on the tabling motion went as follows:

HB2021 by Evans - FLOOR VOTE: LAY ON THE TABLE MOTION TO ADOPT AMENDMENT # 2 BY Bass
PASSAGE ON THIRD CONSIDERATION
4/27/2011Failed

          Ayes...............................................35
          Noes...............................................51
          Present and not voting..............…...5

          Representatives voting aye were: Brooks H, Brooks K, Butt, Carr, Casada, Coley, Dennis, Dunn, Eldridge, Ford, Harrison, Haynes, Hurley, Keisling, Kernell, Lundberg, Marsh, Matlock, McCormick, McManus, Miller D, Montgomery, Odom, Powers, Ramsey, Roach, Sargent, Sexton, Shipley, Sparks, Weaver, Williams R, Wirgau, Womick, Madam Speaker Harwell -- 35.

          Representatives voting no were: Alexander, Armstrong, Bass, Brown, Camper, Cobb, Cooper, Curtiss, Dean, DeBerry J, Favors, Fitzhugh, Floyd, Forgety, Gotto, Halford, Hardaway, Harmon, Hensley, Holt, Johnson C, Johnson P, Jones, Lollar, Matheny, McDaniel, McDonald, Miller L, Moore, Naifeh, Niceley, Parkinson, Pitts, Pody, Rich, Richardson, Sanderson, Shaw, Shepard, Sontany, Stewart, Swann, Tidwell, Tindell, Todd, Towns, Turner J, Turner M, Watson, Williams K, Windle -- 51.

          Representatives present and not voting were: Campbell, Faison, Gilmore, Hill, Ragan -- 5.

• When the Evans bill was calendared in Judiciary on May 3, TFA had people present from as far as Memphis who had requested to testify on the bill.  Rep. Evans did not come to the committee hearing nor did he respond to calls and text messages that morning from TFA and NRA trying to determine what was going on with the bill or where he was.
• With Rep. Evans not present, his bill and another pro-2nd Amendment bill by Rep. Andy Holt were both sent quietly back to the Judiciary's subcommittee which was already closed.  Although there is no recorded vote on which committee members voted to send these two bills to the closed subcommittee but it has been suggested by one Judiciary member to TFA that the initiative came from Rep. Coley and that it was "gaveled" without a recorded vote and without either sponsor being present.
• TFA requested that a House procedural rule which has the ability to "recall" a bill from a committee be used to get a House vote on the bill this year, but no House member indicated a willing to make that motion.

Following these events, TFA has met with some House members and some in House leadership (not Harwell) about this bill and what Rep. Evans was believed to have done.  It is clear that many in the House Republican party say that they did not know about the scheme of a few members and that they actually supported the objective of Rep. Bass' amendment to protect commuting employees.  We have asked those we talked with in the House to explain the votes and why an apparent plan existed to strip the employee protections from the bill, to substitute only an employer immunity clause and to implement a self-destruct plan if any amendment was offered to restore employee protections.  We wanted to know whether this plan was explained in the caucus prior to the floor action and it has been suggested that the caucus was blind to the plans or series of events.

To date, however, the House has not publicly identified who was involved with this beyond the sponsor.  We have been told concerning the tabling motion by Rep. Evans that there was confusion among the caucus about what to do and that many apparently simply voted as the sponsor (Rep. Evans) wanted without really knowing what the amendment by Eddie Bass would do or why the sponsor was asking that it be tabled. It matters not because although the votes certainly were there to pass the bill as it was desired by TFA, the bill's sponsor, a few co-sponsors would not allow it and ultimately the House did not do so.

This year, the Republicans, who by a substantial majority proclaim support and strength on the 2nd Amendment, 10th Amendment, etc., and almost always identify those issues on campaign materials, had the caucus numbers to do whatever they wanted in the House and Senate.  Certainly there are specific Republicans and Democrats in the House and Senate who stayed true to the 2nd Amendment as the bill introductions and sponsorships show.  Perhaps, however, a significant number of specific House Republicans under Beth Harwell's leadership and her committee appointments view 2nd Amendment and related Constitutional rights as just another issue and not as a core issue.  Perhaps it is an issue to be polled for popularity rather than what is constitutionally appropriate.  Certainly, that is the message that Speaker Harwell has sent.  In a recent comment to the Tennessean on these issues, she is reported as saying that the caucus is 100% committed to gun rights (of course that cannot be accurate if you include her prior votes since she herself pretty consistently votes against them and there are a few  "left of center" Republicans who will go right along with her on gun issues).  But Harwell's statements to the news media clearly evidence that, at least for her, the issues pertaining to gun rights are just another topic to be taken up in rotation and perhaps when not likely to influence an election.

Harwell, whose candidacy for speaker was opposed by many gun rights groups, is viewed with particular skepticism. She said critics should remember the banner years enjoyed by gun rights groups in 2009 and 2010, when Republicans pushed through more permissive gun laws.

“They know that our Republican caucus is 100 percent committed to gun rights,” she said.

http://www.tennessean.com/article/20110529/NEWS/305290011/TN-GOP-gains-legislative-wins-critics-  Notably, Harwell does not defend her own voting record but references passage of bills that she voted against.

In comments that Speaker Harwell made to the Nashville City Paper, she goes further and makes clear that she, as Speaker, had no intent of spending any time at all on firearms issues in 2011. 

Even Senate Speaker Ron Ramsey, an unabashed gun advocate, has admitted to reporters that he discouraged new gun bills to avoid media coverage that might make it appear that the legislature was distracted. The new House speaker, Nashville’s Beth Harwell, dismissed outright any need for new gun laws.

“We addressed a good number of gun bills last session,” Harwell told reporters shortly after Republicans nominated her late last year to preside over the House. “I feel that clearly we received a mandate from the public that we need to be focused on jobs and education and the economy this session.” 

http://nashvillecitypaper.com/content/city-news/gun-lobby-displeased-after-state-republicans-tried-focus-economy-during-session  (emphasis added)

Looking Forward to 2012

If things are going to change in 2012 - an election year - Tennessee's constitutionally concerned citizens, Tennessee's firearms owners, Tennessee's hunters and Tennesseans in general need to step up and demand accountability of elected officials to 2nd Amendment and other constitutional issues.  These issues should not be diminished because "big business" opposes the advancement of 2nd Amendment and other constitutional rights.  Using these issues as a litmus test, it is possible to see where legislators stand and to take those votes and actions into consideration when those individual legislators ask for support in their re-election efforts.  Legislators need to understand that the State and federal constitutional provisions are not just "platform" issues to be considered in rotation with other issues.  Constitutional issues should require diligence and action to make sure that constitutionally protected rights are placed in proper regard.

TFA is not a Republican, Democrat, Tea Party or libertarian entity.  TFA is issue oriented.  We view the issue as a core constitutional issue that is completely independent of party affiliations although we realize that the degree of support between the parties varies substantially.  TFA tries to keep party affiliation separate from pushing forward on the issue with elected officials who support the issue. 

What are TFA's issues for 2012 and beyond?

• Constitutional carry a/k/a "Vermont carry."  TFA would actually prefer a system, somewhat similar to Arizona's version of this bill, where citizens can obtain an optional state issued which would evidence that the individual has the right to carry in Tennessee.  This optional permit would be at minimal cost but adequate to maintain reciprocity with other states.  All existing permits would need to be grandfathered automatically.
• Employee protections / parking lots.  Legislation to protect employees who commute to work from being criminally prosecuted and/or terminated from employment if they are legally transporting a firearm for self-defense while commuting, to go hunting before or after work, to go to the range before or after work, etc.
• Expanded exemptions for school grounds so that the current exemption is no longer limited to passenger pickup/dropoff but would allow anyone legally transporting a firearm to leave it secured in their vehicle while parked on school property.
• Remove restrictions for those who can legally transport a firearm to possess it on college campuses (any educational facility beyond 12th grade including community college, trade schools, etc.). 
• Remove restriction regarding legal possession of firearms in any park during periods when the park may be in use by a school (e.g., current law is unclear on whether a state park automatically "closes" to firearms possession if any school is making any use of the park such as cross country runs, golf, tennis, nature hikes, etc.)
• Remove all local options to regulate firearms possession by those who are legally carrying a firearm with respect to local public parks, greenways, etc.
• Prohibit the public republication of the permit holder database and/or close it entirely.  Allow non-individual specific requests for demographic and termination data. 
• Require actual verbal signage on properties that post - not simply the circle-slash over a picture of a gun.  Exclude government, business and commercial parking lots. 
• Fix the purchase statute to REQUIRE TBI to respond to a purchase challenge in writing within 15 days to both the dealer and the proposed purchaser.  Require TBI to pay all costs of a subsequent TICS check (including attorney's fees) if it fails to deliver a response in writing by the 20th day from the date of the challenge.
• Require local law enforcement to complete ATF Form 4 in all areas where local law enforcement is requested to respond and to do so on all form 4 requests including requests for suppressors.  Provide that citizens may file mandamus actions against law enforcement for failing to respond or respond timely and that the costs of such actions are chargeable to the chief law enforcement officer in an individual and official capacity.
• Require that gun ranges which are built or supported with tax dollars be made open to the public when not in active use by law enforcement.
• Undo part of the castle doctrine that denies the legal presumption if the individual who resorted to self-defense was engaged in "illegal activity" or "unlawful activity" at the time in question.  This language is too broad and could deny reliance on the presumption if there is a zoning violation and/or if the tags or insurance on the car had expired.
• Repeal the law which prohibits those with non-violent felonies from owning or possessing a firearm once they have obtained a restoration of their rights.
• Repeal any law which creates "classes" of citizens relative to firearms ownership,  possession and/or self-defense standards (e.g., those laws which address "off duty" or "retired" individuals)
• Make clear that pardons restore all civil rights.

The foregoing list is not exhaustive.