Expert: Robert P. Firriolo - 7/19/2010

Question
are Tennessee code's 39-17-1352 f1,f2,g1,g2and g3 legal in the second amendment right of congress to regulate firearms with view to prevent a crime?thank you very much for your time!

Answer
Tennessee Code Section 39-17-1352 (Amended effective January 1, 2010) deals with suspension or revocation of a handgun license. The sections you specifically ask about state:

(f)  (1)  If a permit holder is convicted of a Class A misdemeanor offense, the permit holder shall surrender the permit to the court having jurisdiction of the case for transmission to the department.
  
      (2)  The permit holder shall not be permitted to lawfully carry a handgun or exercise the privileges conferred by the permit for the term of the sentence imposed by the court for the offense or offenses for which the permit holder was convicted.
   

(g)  In order to reinstate a permit suspended pursuant to subsection (e) or (f), the permit holder shall pay a reinstatement fee of twenty-five dollars ($25.00) with one half (˝) of the fee payable to the department of safety and one half (˝) payable to the court that suspended the permit.
 
     (1)  Prior to the reinstatement of the permit, the permit holder shall have paid in full all fines, court costs and restitution, if any, required by the sentencing court.
 
     (2)  Failure to complete any terms of probation imposed by the court shall be a bar to reinstatement of the permit.
 
     (3)  Prior to reissuance of the permit, the department shall verify that the permit holder has complied with all reinstatement requirements of this subsection (g).


Your question is somewhat unclear, but I presume what you are asking is whether these provisions are constitutional under the Second Amendment to the United States Constitution. The short answer is that there is no definitive answer because federal courts have not yet addressed the scope of the Second Amendment as it applies to challenges of state gun laws.

It was only a matter of weeks ago that the US Supreme Court, in McDonald v. Chicago, ruled that the Second Amendment applies to the states. That case, and the D.C. vs. Heller decision from two years ago, only addressed laws that amounted to a complete handgun ban inside the home. Laws regulating carrying of firearms outside the home were not before the court and thus not addressed. So, there is little guidance from the Supreme Court on handgun carry and licensing laws beyond rulings in those cases that the right to own a handgun and the right to self-defense with a handgun are fundamental, individual rights.

In McDonald's majority opinion, the court indicated that the Second Amendment did not protect an unlimited right to carry arms:

"It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not 'a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.' 554 U. S., at ___ (slip op., at 54). We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as 'prohibitions on the possession of firearms by felons and the mentally ill,' '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 arms. Id., at ___–___ (slip op., at 54–55). We repeat those assurances here. Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms."

Section 39-17-1352 (f) essentially suspends a carry permit upon conviction of a Class A misdemeanor offense, and during the term of its sentence. Because Tennessee does not require a permit to own a gun or keep it in one's home or place of business, the suspension does not mean one loses his or her right to own a gun. No court of which I am aware has addressed this kind of regulation in light of Heller and McDonald, and there is nothing in either case that directly addresses such a law.

Further, until the federal courts decide upon the "standard of review" for laws challenged under the Second Amendment (that is, "strict scrutiny" or some intermediate level of review), it is very difficult to predict whether any but the most strict handgun regulations will fail to survive a challenge. I suspect that a regulation like Section 39-17-1352 (f) is likely to be held constitutional unless the standard of review is strict scrutiny and the courts find that misdemeanor offenses are insufficient to deny somebody the right to self-defense with a handgun. Again, it is too early to really say with any certainty how such challenges will turn out.

Section 39-17-1352 (g) is even less likely to have any Constitutional implications, as it involves only a small fee and ensuring that the person convicted of a crime has satisfied all of the conditions of the sentence.