Is the “intent to go armed clause” of our Tenn. Code Ann. § 39-17-1307 (a) (1) or Article 1 Section 26 of the Tennessee Constitution unconstitutional? Let’s look at the facts and dive in.
From the case Moorfield v. State, Supreme Court of Tennessee decision from 1880. The case arose from a situation where a person came before his fellows saying he had been fighting with a bear.
The neighbors, responding to the trouble gathered the firearms that were available and went to hunt the animal. Moorfield borrowed a pistol and joined the group in pursuit. Returning from the venture, he was spied carrying the handgun, reported as such and arrested for violating the “intent to go armed” statute (this is still on our books today).
Going through the lower courts he was convicted of breaking the law. Appealing to the highest Court of the State, he was finally exonerated, his conviction reversed. It is instructive to the People today to understand what the Court USED to render its verdict.
Quoting from the actual transcript of the Court’s ruling “…the intent to carry the pistol for evil purposes, or for the purpose of being armed, in the sense of the statute, is clearly negatived, and the motive an innocent one. The object of the statute, as we have before said, is to prevent carrying a pistol with a view of being armed and ready for offense or defense in case of conflict with a citizen…”.
That being the specific definition of the “intent to go armed” in 1880 by our highest court, we find it reversed in 2008, via the District of Columbia et al. v. Heller definition of what the 2nd Amendment REALLY PROTECTS. “At the time of the founding, as now, to “bear” meant to “carry.”. When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose—confrontation. Quoting Justice Ginsburg in Heller from Muscarello v. United States (1998), in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, Justice Ginsburg wrote “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment indicate[s]: ‘wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person.’ Scalia said of THAT quote in Heller “We think that Justice Ginsburg accurately captured the natural meaning of “bear arms.” Although the phrase implies that the carrying of the weapon IS for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization.”
Regarding the restrictions placed on the People by our General Assembly in 1801, 1821, and 1870, making it a crime for a citizen to carry a firearm with the “intent to go armed,” they are clearly unconstitutional and have been set aside by this later Court!
It is my further belief that the finding of the McDonald v. City of Chicago case in 2010, where the Supreme Court incorporated the 2nd Amendment against the states, invokes Article 6 Section 2 , which is the supremacy clause of our Federal Constitution. It renders the current Article 1 Section 26 of the Tennessee Constitution moot, as the 2nd Amendment is Supreme, the laws of Tennessee notwithstanding.
Remember the original construct of our 2nd Amendment analogue from 1796?
“That the free men of this state have a right to keep and to bear arms for their common defense.” The most recent Supreme Court case, Bruen, now dictates “The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”
The Jim Crow changes to our 2nd Amendment analogue from 1870 gives power to the General Assembly that it simply does not have. It must be changed to satisfy the requirement set forth in Bruen where it says;
“After all, the Second Amendment guarantees an “individual right to possess and carry weapons in case of confrontation, and confrontation can surely take place outside the home.”
Our state legislators have the delegated power from us to set punishment for criminal acts. It IS their job to listen to the People (who are to instruct them) and to make laws which provide protection for the People WITHIN the confines of the Constitution. Their Oath requires them each “in all appointments, to vote without favor, affection, partiality, or prejudice; and that they will not propose or assent to any bill, vote or resolution, which shall appear to them injurious to the people, or consent to any act or thing, whatever, that shall have a tendency to lessen or abridge their rights and privileges, as declared by the Constitution of this state.” These same legislators do NOT have the power to deny Constitutional rights,, however “good” their “feelings” might be.
Article 11 Section 16 of our State Constitution says:“The declaration of rights hereto prefixed is declared to be a part of the. Constitution of the state, and shall never be violated on any pretense whatever. And to guard against transgression of the high powers we have delegated, we declare that everything in the bill of rights contained is excepted out of the general powers of the government and shall forever remain inviolate.
Let your elected employees know you understand what THAT means, that they have NO power to deny rights that we received from our Creator.
And finally, Thomas Jefferson said, “Those who expect to be both ignorant and free, expect what never was and never will be.”
C. Richard Archie
West TN Director and Board Member
Tennessee Firearms Association
About Tennessee Firearms Association:
The Tennessee Firearms Association is dedicated to defending the right to keep and bear arms and promoting the responsible use, ownership, and carrying of firearms.
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