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LEONARD EMBODY, Petitioner,
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ROBERT E. COOPER, JR., Attorney General & Reporter, Respondent. MEMORANDUM The Petitioner, Leonard Embody,
) ) ) ) ) AND ORDER a declaratory
of Tenn. Code AIm. § 39-17-1307(a)(l),
which prohibits "the carrying of
firearms for the purpose of going armed" by persons not otherwise permitted to carry fireannsby statutory exception or defense. Mr. Embody seeks a ruling that the statute violates both the U.S. and the Tennessee Constitutions, and asks that the Court enjoin state actors from enforcing the law. This matter is presently before the Court on Cross-Motions for Summary Judgment. STATEMENT OF FACTS
Mr. Embody was licensed to 'carry a firearm in 2001 by the Tennessee Department of Safety ("the Department"), pursuant to Tenn. Code Ann. § 39-17-1351, et seq. On February 26, 2010, Investigator Thomas Sexton of the Belle Meade Police Department requested that the Department of Safety revoke Mr. Embody's handgun carry permit on the grounds that Mr. In his request, Investigator
Embody posed a material likelihood of risk of harm to the public. Sexton noted that the request was based
a January 22,2010 incident where Mr. Embody was
found carrying a weapon in an unsafe manner and unsafe condition in an unsafe location. 1 Investigator Sexton also referred/ to other "recent incidents" which demonstrated that Mr. Embody's actions "do not represent the actions of a responsible citizen wishing to safely carry a handgun for legitimate purposes." On March 10, 2010, the Tennessee Department of Safety revoked Mr. Embody's handgun carry permit on the grounds that he posed a material likelihood of risk to the public.
On March 12, 2010, Mr. Embody filed a petition for an administrative hearing with the Tennessee Department of Safety, challenging the suspension of his handgun carry permit. On September 14,2010, Mr. Embody filed a motion to voluntarily dismiss the administrative review of the suspension of his permit. The Department of Safety granted his motion and dismissed the appeal on September 16, 2010.2 On May 25, 2010, Mr. Embody filed a Petition for Writ of Mandamus or in the alternative, a Petition for Injunctive Relief, with the Williamson County Chancery Court. On July 25, 2010, following the State's Motion to Dismiss for Improper Venue, the parties entered into an Agreed Order transferring the case to the Davidson County Chancery Court. On September 16, 2010, the Court denied Mr. Embody's Motion for Default Judgment. On
September 20, 2010, Mr. Embody filed a Motion to Amend his complaint, seeking declaratory
I Mr. Embody declined to pursue an administrative appeal of the suspension of his handgun carry permit, instead initiating the present challenge to the constitutionality of Tennessee handgun carry permit statutes. Accordingly, the factual situation(s) that precipitated the suspension of his handgun carry permit is not at issue and is not detailed in the pleadings. Included in the case file, however, is the March 12,2010 letter from Mr. Embody to the Department of Safety requesting a hearing on the suspension of his permit. In this letter, Mr. Embody refers to an incident in the City of Belle Meade in which he was "walking down Belle Meade blvd. [sic] with [a] pistol." Mr. Embody's handgun carry permit was suspended two days before the date of this letter, as a result of a complaint made by the Belle Meade Police Department.
The Final Order in the administrative case states that the government's attorney "informed Mr. Embody that there was no provision in the relevant statute that would permit him to re-file this matter at a later date." 2
relief, requesting that the mandamus action be dismissed without prejudice, dropping his claim based on Tenn. Code Ann. §§ 39-f7-1351 and 1352(a)(3), and asking that Department of Safety Commissioner Dave Mitchell be dismissed from tins action. On October 11, 2010, the Court granted Mr. Embody's Motion to Amend. The Respondent filed a Motion to Dismiss Mr. Embody's complaint for failure to state a claim pursuant to Tenn. R. Civ.P. 12.01(6). On January 21, 2011, the Court granted the
Respondent's motion and dismissed the case. Mr. Embody filed a Motion to Alter or Amend the judgment on January 25,2011. On February 14, 2011, the Court granted Mr. Embody's motion,
setting aside the Order of Dismissal and reopening the case. The Respondent filed an answer to the amended complaint on February 23, 2011. Both Mr. Embody and the Respondent filed Motions for Summary Judgment on June 30, 201 L These motions were heard by the Court on September 16,2011. Having considered the provisions and
briefs, the arguments of the parties, and the relevant statutes, constitutional caselaw, the Court is now ready to rule.
STANDARD OF REVIEW
appropriate in a case in which there. are no genuine issues of
material fact and the moving party is entitled to judgment as a matter of law. Tenn. R. Civ. P. 56.04; Kinsler v. Berkline, LLC, 320 S.W.3d 796, 799 (Tenn. 2010). The Respondent contends .that there are no issues of material fact in dispute, and Mr. Embody approves this assessment in his Response to Respondent's Motion for Summary Judgment.' The parties further agree that
the legal issues in this case are suitable for disposition on summary judgment. ISSUES
The parties dispute whetherMr. Embody is ineligible for a handgun carry permit because he poses a material likelihood of risk or harm to the public. Tenn. Code Ann. § 39-17-1352(3). However, the parties contend that this disputed fact is not relevant to Mr. Embody's challenge to the constitutionality of Tenn. Code Ann. § 39-17-1307.
In his amended complaint, Mr. Embody asserts three causes of action: Code Ann. § 39-17-1307(a)(l)
1) that Tenn.
violates the U.S. and Tennessee Constitutions by criminalizing
activity that has been designated a fundamental right or privilege; 2) that Tenn. Code Ann. § 3917-1307 is overly broad, in that it "prohibits good law-abiding citizens including petitioner from exercising their individual Second Amendment Fundamental Right to self-defense and to carry a loaded handgun in public non-sensitive places such as public sidewalks, streets, parks, and loaded in private vehicles"; unconstitutional and 3) that Tenn. Code Ann. § 39-17-1307(a)(1) Amendment is facially
in violation of U.S. Constitution
II in that it prohibits "non-
criminals from carrying loaded handguns.?" in terms of its constitutional validity.
Mr. Embody asks the Court to construe the statute
ANALYSIS The Declaratory Judgment Act, codified at Tenn. Code Ann. § 29-14-101, et seq., gives courts of record the power to "settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations." Colonial Pipeline Co. v. Morgan, 263 S.W.3d The Act provides that "[a]ny
827, 837 (Tenn. 2008) (quoting Tenn. Code Ann. § 29-14-113).
person ... whose rights; status; or other legal relations are affected by a statute ... may have determined any question of construction or validity arising under the ... statute ... and obtain a declaration of rights, status or other legal relations thereunder." Tenn. Code Ann. § 29-14-103. Declaratory judgment statutes are remedial in nature and should be construed broadly in order to accomplish their purpose. Tenn. Code Ann. § 29-14-113; Shelby County Bd. of Comm'rs v.
Shelby County Quarterly Court, 216 Tenn. 470, 482, 392 S.W.2d 935,941 (1965).
4 In his Prayer for Relief, Mr. Embody also seeks an Order declaring Tenn. Code Ann. § 39-17-1307 unconstitutional as applied. However, he has not asserted individualized grounds as to how the statute has been unconstitutionally applied to him.
At the outset, the Court is mindful that statutes enacted by the legislature are presumed constitutional. Vogel v. Wells Fargo Guard Servs., 937 S.W.2d 856, 858 (Tenn. 1996). Thus, we must "indulge every presumption and resolve every doubt in favor of constitutionality." Id. A. Tennessee Handgun Carry Permit Statutes The Court begins its analysis by looking to the language of Tenn. Code Ann. § 39-171307(a)(1). The statute states that [a] person commits an offense who carries with the intent to go armed a firearm, a knife with a blade length exceeding four inches (411), or a club. The Tennessee Legislature codified defenses to prosecution under Tenn. Code Ann. § 39-171307(a)(l) where the possession or carrying of a firearm is: 1) the carrying of an unconcealed, unloaded rifle, shotgun or handgun with no ammunition in the immediate vicinity; 2) by a law enforcement officer or a person holding a valid Tennessee handgun carry permit; 3) at the person's residence, business, or premises, 4) incident to lawful hunting, fishing, sport shooting, etc.; 5) by a person engaged in the lawful protection of livestock from predatory animals; 6) by an authorized Tennessee valley authority officer, in the performance of his official duties; 7} by a state, county or municipal judge or any federal judge or magistrate; 8) by any out-of-state, full-time, commissioned law enforcement officer who holds a valid commission card from the appropriate out-of-state law enforcement agency and a photo identification, provided that the state has entered into a reciprocity agreement with Tennessee.
Tenn. Code Ann. § 39-17-1308.5
These defenses do not apply to pers~ns who have been
convicted of a felony involving the' use, or attempted use, of force, violence or a deadly weapon, or who have been convicted of a felony drug offense. Id. B. Second Amendment Analysis After Heller and McDonald The Second Amendment of the U.S. Constitution provides that "[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." U.S. Const. amend. II. ML Embody looks to the U.S. Supreme Court's
decisions in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 LEd. 2d 637 (2008) and McDonald v, City of Chicago,
130 S.Ct. 3020, 177 LEd. 2d 894 (2010) to
support his argument that Tenn. Code Ann. § 39-17-1307 violates his rights under the Second Amendment. The Heller Court struck down two District of Columbia laws that, with only minor exceptions, banned possession of handguns in the home and required that any guns in the home be rendered inoperable, thereby precluding their use for immediate self defense. In so doing, the Court undertook a lengthy review of the historical foundation of the language of the Amendment and its application throughout U.S. history, determining that the Amendment conferred an
individual right to keep and bear arms and rejecting prior caselaw that treated this right as a collective right of the people, assertable only in connection with the maintenance of a militia. The Court held that the District of Columbia's prohibition on handgun possession in the home violated the Second Amendment, and also determined that the "prohibition against rendering any lawful firearm in the home operable for the purpose of immediate unconstitutional. self defense" was also
Heller, 554 U.S. at 635, 128 S.Ct. at 2821. The Court stated that although the
Second Amendment "guarantee[s] the individual right to possess and carry weapons in case of
Statute is paraphrased. 6
554 U.S. at 592, 128 S.Ct. at 2797, this right is not "unlimited" and that "the
right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." 554 U.S. at 626, 128 S.Ct. at 2816. The Court stated that its holding was not
intended to cast doubt on longstanding regulatory measures such as those banning the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places, such as schools and government buildings, or laws imposing conditions and
qualifications on the commercial sale of firearms.
554 U.S. at 626-27, 128 S.Ct. at 2816-17.
The Court further stressed that the presumptively lawful regulatory measures it enumerated were only examples, and did not comprise an exhaustive list. 554 U.S. at 672, n.26, 128 S.Ct. at 2817 n.26. The Heller Court applied the Second Amendment to the laws of the District of Columbia, .leaving unanswered the question of whether the Second Amendment also applied to the states. TIlls question was answered in McDonald, supra, in which the Court held that the Second Amendment is fully applicable to the states by virtue of the 14th Amendment. The McDonald
Court held that the two Illinois city ordinances at issue violated the Second Amendment because they effectively. imposed a total ban 'on handgun possession by almost all private citizens, thereby precluding them from possessing handguns even for the purpose of self defense in the home. McDonald, 130 S.Ct at 3026.
C. Facial Challenge
Mr. Embody asserts that Tenn. Code Ann. § 39-17-1307(a)(1) violates rights protected by the Second Amendment and is facially unconstitutionaL However, the presumption of a statute's
constitutionality applies with even greater force when a facial challenge to its constitutionality is made. Waters v. Farr, 291 S.W.3d 873, 921-922 (Tenn. 2009) (citing Gallaher v. Elam, 104
S.W.3d 455, 459 (Tenn. 2003); In re Burson, 909 S.W.2d 768, 775 (Tenn. 1995)).
challenge to a statute is the most difficult challenge to mount successfully, as the statute must be found invalid in all its applications. Waters, 291 S.W.3d at 921 (citing United States v. Salerno,
481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). The challenger must establish that no set of circumstances exists under which the statute would be valid. ld. at 921-922.6 Courts
"should proceed with caution and restraint" to avoid interfering with legitimate government functions, and employ such a remedy as "a last resort. " ld at 922 (citing Broadrick v. Oklahoma, 413 U.S. 601,613,93 S.Ct. 2908, 37 L.Ed.2d 830 (1973).
The Tennessee Supreme Court has set out three reasons why courts should be wary of invalidating a statute on facial grounds: First, claims of facial invalidity often rest on speculation and thus run the risk of the "premature interpretation of statutes on the basis of factually barebones records." Second, facial challenges "run contrary to the fundamental principle of judicial restraint" by inviting the courts to "formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied." Third, "facial challenges threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution." Thus, a successful facial constitutional challenge results in the wholesale invalidation of the statute. While passing on the validity of a statute wholesale may be efficient in the abstract, any gain is often offset by losing the lessons taught by the particular. For this reason, many courts view "as applied" challenges as the "basic building blocks" of constitutional adjudication. "As applied" challenges are preferred because, if they are successful, they do not render the entire statute completely inoperative. In some circumstances, the courts can best fulfill the legislature's intent by prohibiting only the unconstitutional applications of a statute, while allowing the State to enforce the statute in other circumstances.
Conversely, an "as applied" challenge presumes that the statute is generally valid. It merely asserts that specific applications of the statute are unconstitutional. Thus, an "as applied" challenge only requires the challenger to demonstrate that the statute operates unconstitutionally when applied to the challenger's particular circumstances.
Waters v. Farr, 291 S.W.3d at 923. (internal citations omitted). 8
Id. at 922-923 (internal citations and footnotes omitted) .
As set forth above, a party challenging a statute's constitutionality burden of showing that the statute is invalid in all its applications.
on its face has the
Mr. Embody has failed to
make such a showing. Instead, he relies upon an overarching argument that because Tenn. Code Ann. § 39-17-1307(a)(1) criminalizes the carrying of a handgun, with Tenn. Code Ann. § 39-171308 merely offering "defenses" to prosecution, the statute is unconstitutional. As already set
forth, Tennessee law protects the core Second Amendment right to keep a firearm for the protection of "home and hearth." Heller, 554 U.S. at 635, 128 S.Ct. at 2821. The Petitioner's argument that activities falling outside this core right may not be subjected to the regulation embodied in Tenn. Code Ann. § 39-17-1307(a)(1) "short circuiting" the legislature's elevates form over substance, effectively
efforts to implement laws reflecting the will of the people.
Accordingly; in line with the Tennessee Supreme Court's reasoning in Waters, supra, Mr. Embody's facial constitutional challenge must faiL D. As Applied Challenge The Court notes that in his prayer for relief, Mr. Embody asserts that Tenn. Code Ann. § 39-17-1307(a)(1) is also unconstitutional as applied to him. Beyond his assertions that he has is a law abiding citizen, has never been formally charged with a crime, has never been adjudged mentally deficient, etc., the Petitioner has not asserted individualized statute has been unconstitutionally grounds as to how the
applied to him.' "A skeletal argument that is really nothing
In his Motion for Summary Judgment and Memorandum of Law, Mr. Embody asserts that his handgun carry permit was suspended by the State "by means of a secret hearing and process." The record shows that Mr. Embody challenged the suspension of his permit by initiating the administrative review process available under Tenn. Code Ann. § 39-17-1353. Provisions of the Uniform Administrative Procedures Act, Tenn. Code Ann. § 4-5-301 et seq. are applicable to hearings held pursuant to Tenn. Code Ann. § 39-17-1353 to the extent these provisions are consistent with that statute. Tenn. Code Ann. § 39-17-1355. Accordingly, it appears that Mr. Embody's hearing would have been open to the public pursuant to Title 8, Chapter 44, unless otherwise provided by state or federal law. Tenn. Code Ann. § 4-5-312(d). After filing his petition for administrative review, however, Mr. Embody filed
more than an assertion will not properly preserve a claim, especially when the brief presents a multitude of other arguments." Newcomb v. Kohler Co. 222 S.W.3d 368, 400 (Tenn. Ct. App. 2006) (citing United States v. Dunkel, 927F.2d 955,956 (7th Cir. 1991)). Even assuming the Court could find that Mr. Embody set forth sufficient facts to present an "as applied" claim, Mr. Embody does not cite to the proper standard of review or attempt to demonstrate how his claim survives constitutional scrutiny. As the Heller decision did not set
out the standard of scrutiny to be applied in Second Amendment cases, stating only that the ordinances at issue in Heller would fail under any of the standards of scrutiny employed by the U.S. Supreme Court in protecting constitutional rights, the Court looks to post-Heller caselaw for guidance. In the May 21, 2012 decision of United States v. Greeno, 679 F.3d 510 (6th Cir. 2012), the Sixth Circuit Court of Appeals addressed a Second Amendment challenge to Section
2D 1.1(b)(1), a federal statute that enhanced penalties for drug offenses involving the use of firearms. The Greeno court adopted the two-pronged approach used by several other circuits in analyzing an "as applied" Second Amendment challenge. Marzzarella, Id. at
(citing United States v.
614 F.3d 85, 89 (3d Cir, 2010) ("As we read Heller, it suggests a two-pronged
approach to Second Amendment challenges."); U.S. v. Chester, 628 F.3d 673,680 (4th Cir. 2010) (applying two-pronged approach); Ezell v. City of Chicago, 651 F.3d 684, 701-03 (7th Cir. (lOth Cir. 2010) (same):
2011) (same); United States v. Reese, 627 F.3d 792,800-01
Under the first prong, the court asks whether the challenged law burdens conduct that falls within the scope of the Second Amendment right, as historically understood. As the Seventh Circuit recognized, "Heller suggests that some
a motion to voluntarily dismiss the case, waiving resolution of the factual issues underlying the suspension of his handgun permit.
At the time this Memorandum Opinion and Order was written, the electronic database utilized by the Court had not yet incorporated page numbers into its version of the May 21, 2012 Greeno decision. 10
federal gun laws will survive Second Amendment challenge because they regulate activity falling outside the tenus of the right as publicly understood when the Bill of Rights was ratified." Eze'il, 651 F.3d at 702. If the Government demonstrates that the challenged statute "regulates activity falling outside the scope of the Second Amendment right as it was understood at the relevant historical moment-1791 [Bill of Rights ratification] or 1868 [Fourteenth Amendment ratification]-then the analysis can stop there; the regulated activity is categorically unprotected, and the law is not subject to further Second Amendment review." ld. at 702-03. "If the government cannot establish this-if the historical evidence is inconclusive or suggests that the regulated activity is not categorically unprotected-then there must be a second inquiry into the strength of the government's justification for restricting or regulating the exercise of Second Amendment rights." ld. at 703. Under this prong, the court applies the appropriate level of scrutiny. If the law satisfies the applicable standard, it is constitutional. If it does not, "it is invalid." We find this two-pronged approach appropriate and, thus, adopt it in this Circuit.
United States v. Greeno, 679 F.3d at __
(some internal citations omittedj."
Unlike the statute at issue in Greeno, which the Court found had historical precedent, 10 Tenn. Code Ann. § 39-17-1307(a)(1) presents a broader regulatory scheme that is not so easily pigeon-holed. The statute's provisions comport with both the Heller decision and with historical precedent; allowing for the possession of guns in the home and for their use in hunting, sport shooting, fishing, etc. However, the requirement that persons must hold a valid Tennessee handgun carry permit to defend against prosecution for the unlawful carrying of a firearm does not have the same kind of historical corollary. Accordingly, the inquiry must proceed to the second step and examine the government's justification for regulating the exercise of citizens' Second Amendment rights.
See footnote 8.
10 As the federal statute in question was "of relatively recent vintage," according to the court, it looked instead to "the broader question of whether the Second Amendment light, as historically understood, protected the possession of weapons by individuals engaged in criminal activity."
As an initial matter, the scrutiny that Tennessee courts apply m determining the constitutionality of statutes has consistently followed the framework developed by the United States Supreme Court, which, depending on the nature of the right asserted or a class of persons affected, applies one of three standards of scrutiny: (1) strict scrutiny, (2) heightened scrutiny, and (3) reduced scrutiny or the rational basis test. Newton v. Cox, 878 S.W.2d at 109. Strict scrutiny analysis is required "only when [a legislative] classification interferes with the exercise of a 'fundamental right' or operates to the peculiar disadvantage of a 'suspect class.' " Id.
Riggs v. Burson, 941 S.W.2d 44, 52 (TelID.1997). In order to survive a strict scrutiny analysis,
the statute must serve a compelling state interest and be narrowly tailored to serve that interest.
Planned Parenthood of Tennessee v. Sundquist, 38 S.W.3d 1, 11 (Tenn. 2000) (citing San
Antonio lndep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 29, 93 S.Ct. 1278, 1294, 36 L.Ed.2d 16
(1973». Tennessee courts have used the strict scrutiny approach in regard to fundamental rights "without exception." ld. (citing State v. Smoky Mountain Secrets, Inc., 937 S.W.2d 905, 911 (Tenn. 1996». In most other situations, Tennessee courts have applied a reduced standard of scrutiny, requiring only that a rational basis exist for the classification, or that the classification have a reasonable relationship to a legitimate state interest. State v. Tester, 879 S.W.2d 823, 828 (Tenn. 1994). Under the rational basis standard, "[ijf some reasonable basis can be found for the classification [in the statute] or if any state of facts may reasonably be conceived to justify it, the classification will be upheld." Riggs, 941 S.W.2d at 53 (citing Tennessee Small School Systems
v. McWherter, 851 S.W.2d 139, 153 (Tenn. 1993»; Newton v. Cox, 878 S.W.2d 105, 110 (Tenn.
1994). This standard, compared to heightened or strict scrutiny, places upon those challenging a statute "the greatest burden of proof." Brown v. Campbell County Bd. ofEduc., 915 S.W.2d 407, 413 (TelID.1995) (citing Tennessee Small School Systems, 851 S.W.2d at 153).
In the wake of the Heller decision, some federal courts have held that strict scrutiny applies only when the "core" Sec6~d Amendment rights enunciated in Heller are impacted, i.e., "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." See, e.g., US. v. Masciandaro, 638 F.3d 458 (4th Cir. 2011); Piszczatoski v. Filko, No. 10-06110, 2012
2012 WL 104917 (D.N.J. January 12,2012); Shephardv. Madigan, No. ll-CV-405-WDS, WL 1077146 (S.D.Ill., March 20,2012);
United States v. Chester, 628 F.3d 673 (4th Cir, 2010);
v. Elkins, 780 F. Supp. 2d 473 (W.D.Va. 2011). Instead of a strict scrutiny analysis, these
courts have utilized intermediate scrutiny, which dictates that there be "a 'reasonable fit' between the challenged regulation and a 'substantial' government objective." Chester, 628 F.3d at 683 (quoting Ed of Trustees of State Univ. o/NY. v. Fox, 492 U.S. 469,480,109 S.Ct. 3028,106 L.Ed.2d 388 (1989»; Marzzarella, 614 F.3d at 98 (requiring an asserted governmental "end" to be either "significant, substantial, or important" and the fit between the statute and the government's end to be "reasonable, not perfect" (internal quotation marks omittedj), Thus, the government bears the burden of demonstrating (1) that it has an important governmental "end" or "interest" and (2) that the end or interest is substantially served by enforcement of the regulation. Chester, 628 F.3d at 683; Masciandaro, 638 F.3d at 473.
us. v. Carter
669 F.3d 411,417 (4th Crr. 2012).
Mr. Embody argues that his fundamental right to carry a firearm may only be "narrowly
regulated with a purpose," and that the restrictions imposed by the legislature on his right to carry a weapon constitute an impermissible burden.
He compares the right to
with the right to freedom of speech, freedom of religion, and freedom to walk on a public sidewalk. However, as explained above, Tenn. Code Ann. § 39-17-1307(a)(I) does not infringe
on the core Second Amendment right enunciated in Heller, i. e., the right to keep firearms for
II In his First Amended Complaint for Declaratory Relief, Mr. Embody complains that if he was eligible for a Tennessee Handgun carry permit, he "would be subject to being listed in a public database, pay $ 115, be fingerprinted, background checked, attend an 8 hour class which typically costs about $70, and be tested on accuracy at a firing range." He further states that the permit=costs $50 every four years to renew" and he "would be subject to search and seizure as described in TeA 39-17-1351(t)." He also states that "Tennessee does not recognize out of State permits held by Tennessee residents to be valid."
defense of one's home.
the standard of review to be used in analyzing this
presumptively. lawful statute is infermediate at best, as the statute does not implicate the core fundamental right protected by the Second Amendment. 471 (4th Cir. 2011); Us. v.Marzzarella, US v. Masciandaro, 638 F.3d458,
614 F.3d 85, 97 (3rd Cir. 2010); Us. v. Skoien, 614 2012 WL 2862061,
F.3d 638,641 (til Cir. 2010); Us. v. Nowka, No. 5:11-cr-00474-VEH-HGD,
at *6 (N.D.Ala. May 10,2012); Us. v. Smith, 742 F.Supp. 855,866 (S.D.W.Va. 2010). In the present case, the Court finds that intermediate scrutiny applies in a constitutional challenge to Tenn. Code AIm. § 39-17-1307(a). E. Interniediate Scrutiny As already set forth, to survive intermediate scrutiny, there must be a "reasonable fit" between the restriction imposed by the challenged law and its "substantial" purpose. United States v. Williams, 616 F.3d 685,692 (7th Cir. 2010); or "important" 628 F.3d.
u.s. Y. Chester,
at 683. The Tennessee Constitution states 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." Tenn. Const. art. I, § 26 (emphasis added).
Under this grant of authority, the Tennessee Legislature enacted Tenn. Code Ann. § 39-171307(a)(1), which imposes a restriction on the type of weapons that may be carried by members of the general public, i.e., "[a] person commits an offense who carries with the intent to go armed a firearm, a knife with a blade length exceeding four inches (4"), or a club." determined that The Legislature
of this provision constitutes a misdemeanor, Tenn. Code Arm. § 39-
17-1307(b)(2), but also set out defenses to prosecution under the statute for handgun carry permit holders, law enforcement officers, lawful hunters, persons carrying weapons on their own home or business property, etc. Tenn. Code Ann. § 39-17-1308. Tennessee courts have a long history
of upholding such restrictions. Andrews v. State, 50 Tenn. (3 Heisk.) 165, 1871 WL 3579, at *1 (1871) (The Legislature "may, by regulation, determine what arms may be carried, what shall be proscribed; may declare where they may be carried, and when they may be carried, as well as declare the mode"). The Tennessee Supreme Court has opined that [tJhe legislative power is the power of the whole people, acting by their representatives. If they choose in that mode, to declare their willingness to part with a portion of their own liberty, in order that by the same law the evil minded may be restrained, who shall say nay? In the exercise of this great power by the people, they are not to be held to have tied their own hands, except where the Constitution makes it clear that they so intended.
Jd at *2. See-also Burksv. State, 36 S.W.2d 892 (1931).
Courts employing intermediate scrutiny have upheld laws placing much greater restrictions on the carrying of firearms outside the home. See Shephard v. Madigan, No. l1-CV405-WDS, 2012 WL 1077146 (S.D.Ill., March 20, 2012) (upholding state laws banning the carriage of loaded firearms outside the home for self-protection); Piszczatoski v. Filko, No. 1006110,2012 WL 104917 (D.N.J. January 12,2012) (Upholding state-law restricting the issuance of permits to those showing "a justifiable need" to carry a handgun); but see Woollard v.
Sheridan, No. L-10-2068, 2012 WL 695674 CD.Md.March 2, 2012) (finding state law requiring
"good and substantial reason" for issuance of a handgun permit unconstitutional).
An applicant for a Tennessee handgun carry permit is fingerprinted and subjected to a
criminal background check. Tenn. Code Ann. § 39-17-1351. The applicant is ineligible for a permit if he or she is a convicted felon, is under an order of protection, is addicted to alcohol or any controlled substance, is illegally in the United States, has been convicted of driving under the influence two or more times in the last 10 years, has been judicially determined to be disabled by reason of mental illness, has been dishonorably discharged from the military, etc. Id. Such requirements are designed to ensure that permit holders are responsible, law-abiding
members of the community.
The Court finds that there is a reasonable fit between the State's Thus,
goal of preventing crime and the re'strictions imposed by Tenn. Code Ann. § 39-17-1307. the statute would survive scrutiny under any applicable standard. F. Overbreadth Doctrine
Mr. Embody also contends that Tenn. Code Ann. § 39-17-1307(a)1(1) is overbroad, and
thus must be ruled unconstitutionaL In opining on the application of the overbreadth doctrine,
the federal district court in East Tennessee recently stated that [nJeither the Supreme Court nor this court has applied the overbreadth doctrine when the First Amendment was not implicated. See United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) ("We have not recognized an overbreadth doctrine outside the limited context of the First Amendment"); Schall v. Martin, 467 U.S. 253, 268 & n. 18, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984) ("Outside the limited First Amendment context, a criminal statute may not be attacked as overbroad."); Grendell v. Ohio Supreme Court, 252 F.3d 828, 834 (6th Cir.2001) ("It is well-settled that facial constitutional challenges relying on the overbreadth doctrine, and the resultant chilling effect such overbreadth has on speech, are limited to the First Amendment sphere .").
us. v. Whisnant,
No. 3:07-CR-32, 2008 WL 4500118, at*4 (E.D. Tenn. September 30, 2008)
(quoting Coleman v. DeWitt, 282 F.3d 908,914 (6th Cir. 2002)); accord United States v. Barton, 633 F.3d 168, 172 n.3 (3rd Cir. 2011). Thus, relevant authority limits the application of the overbreadth doctrine to the First Amendment.
Even were the Court to apply the overbreadth
doctrine in the context of a Second cause. The Tennessee Supreme
Amendment challenge, it would not advance Mr. Embody's Court has held that
[ujnder our principles of due process, an overbroad or vague statute is vulnerable to a constitutional challenge because it (1) fails to provide fair notice that certain
[2 In addition, to the extent that Mr. Embody attempts to claim that Tenn. Code Ann. § 39-17-1307(a)(l) acts as a "prior restraint" on his right to bear arms, the Court similarly finds that this First Amendment argument is not applicable in the present case. See Piszczatoski v. Filko, 840 F.Supp. 2d 813, 832 (D.N.I. 2012) ("the prior restraint doctrine should not be transplanted from the First Amendment free expression context to a facial challenge analysis under the Second Amendment.").
activities are unlawful; and (2) fails to establish reasonably clear guidelines for law enforcement officials and courts, which, in turn, invites arbitrary and discriminatory enforcement. Forbes, 918 S.W.2d at 448 (citing Rose v. Locke, 423 U.S. 48, 49-50, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975); Smith v. Goguen, 415 U.S. 566, 572-73, 94 S.Ct. 1242,39 L.Ed.2d 605 (1974)). State v. Pickett, 211 S.W.3d 696,702 (Tenn. 2007). In Tenn. Code Ann. § 39-17-1307(a)(1) and its companion statutes, the Tennessee legislature clearly sets out the weapons-related designated as unlawful and the applicable defenses. The guidelines activities are
Under the statutory scheme, the Tennessee Department
of Safety "shall
suspend or revoke a handgun permit upon a showing by its records or other sufficient evidence that the permit holder ... poses a material likelihood of risk ofhann to the public." Ann. § 39-17-1352 (a)(3). Tenn. Code
To require a statutory recitation of every fact pattern that could
conceivably raise public safety concerns would not be feasible, hence the legislature required that "sufficient evidence" be presented to justify a permit suspension or revocation. In addition,
a permit holder is entitled to notice and a hearing upon the suspension of his handgun permit, to prevent an erroneous deprivation of rights. Tenn. Code Ann. § 39-17-1353.
Embody declined to pursue his administrative remedy in this matter, as was his right. However, - he failed to demonstrate that Tenn. Code Ann. § 39-17-1307(a)(I) challenge as being overly broad. G. Due Process Finally, Mr. Embody looks to Tenn. Const. art. I, § 8, which provides "that no man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or the law of the land." He contends that he been disseized of his liberties and privileges without judgment, due to the application of Tenn. Code Ann. §39-17-1307(a)(l). is vulnerable to constitutional
As already stated, the statutory scheme regulating handgun carry permits entitled Mr. Embody to notice, a hearing and the opportunity for judicial review in the event his permit was suspended or revoked. Tenn. Code Ann. §§ 39-17-1353 and 1354. This statutory protection is in accordance with both Tenn. Const. art. I, § 8 and the 14th Amendment'" of the U.S. Constitution. Martin v.
Sizemore, 78 S.W.3d 249, 267 (TelUl. Ct. App. 2001); Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
Mr. Embody voluntarily
his pursuit of an
administrative hearing. Accordingly, his due process argument is without merit. CONCLUSION In Heller, the U.S. Supreme Court specifically affirmed the government's regulate the use of firearms outside the home. power to In the
554 U.S. at 626-27, 128 S.Ct 2816-17.
present case, there is a "reasonable fit" between the challenged regulation, Tenn. Code Ann. § 39-17 -107 (a)(1), and the "substantial prevention. government
of pub lie safety and crime
Mr. Embody's argument that the statute is overbroad is without merit and he has
failed to show that his right to due process has been infringed. Accordingly, Tenn. Code Ann. § 39-17-1307(a)(1) Constitutions. survives Mr. Embody's challenges under the U.S. and Tennessee
Mr. Embody's Motion for Summary Judgment is denied.
The Respondent's Costs are taxed to
Motion for Summary Judgment is hereby granted and this case is dismissed.
It is so ORDERED.
13 In his Prayer for Relief, Mr. Embody seeks an order declaring Tenn. Code Ann. § 39-17-107(a)(1) unconstitutional in violation of the Fourteenth Amendment "equal rights and due protection clause." To the extent that Mr. Embody may have intended to raise an Equal Protection claim, he has failed to argue the issue or attempted to overcome the presumption of constitutionality that would apply. Thus, the Court deems any such argument waived.
Leonard Embody 6620 Valley Drive Brentwood, TN 37027 Benjamin A. Whitehouse Assistant Attorney general Tennessee Attorney General P.O. Box 20207 Nashville, TN37202-0207
RULE S8 CERTIFICATION .by U.S. Mail upo all parties or their counsel named above.