Article I, Section 24 of the Constitution of the State of Tennessee states “[t]hat 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 of the community will admit; and that in all cases the military shall be kept in strict subordination to the civil authority.” Article I, Section 26 provides “[t]hat 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.”

Tennessee law also provides, in a statute related to concealed handgun permits, that “[t]he citizens of this state have a right to keep and bear arms for their common defense; but the general assembly has the power, by law, to regulate the wearing of arms with a view to prevent crime.”¹

In the 1871 case Andrews v. State, the Supreme Court of Tennessee examined the scope of article I, § 26 in connection with a statute prohibiting the carrying of “a dirk, swordcane, Spanish stiletto, belt or pocket pistol or revolver.”² The case arose in the context of several criminal defendants’ motions to quash their indictments under this law, where the indictments charged that each of the defendants carried a pistol. Defendants argued that the prohibition on the carrying of deadly weapons violated their rights under article I, § 26.

The court held that the challenged statute did not violate article I, § 26, upholding the right of the Legislature to prohibit the carrying of firearms. The court distinguished between the keeping of arms, which cannot be prohibited, and the right to use them, in light of the second clause of article I, § 26 (providing that the Legislature has the power to regulate the wearing of arms with a view to prevent crime).³ Referencing this clause, the court concluded that the wearing or carrying of arms may be restricted, provided the regulation bears “some well defined relation to the  prevention of crime.” [Italics in original.]⁴

In 1928, however, the Supreme Court of Tennessee revisited the scope of the state “right to keep and to bear arms” in the context of a municipal ordinance prohibiting the carrying of a pistol. In Glasscock v. City of Chattanooga,⁵ the court, relying on Andrews, concluded that the ordinance amounted to a complete prohibition on the constitutional right, given that the ordinance prohibited the carrying of any pistol.⁶ The court rejected Chattanooga’s argument that the ordinance merely charged a violation of the same activity that was prohibited under a state statute, noting that the court had previously held that the exception for possession of an “Army or Navy pistol carried openly in the hand” must be read into the state statute to sustain its constitutionality, and therefore an indictment under the state law was invalid unless it charged that the pistol carried was not such a weapon.⁷

In 2009, the Tennessee Attorney General opined that article 1, § 26’s provision granting the state the power to regulate the wearing of arms with a view to prevent crime “affords the legislature with substantial latitude” to pass laws that regulate the wearing of firearms.⁸

More recently, in 2013, the Court of Appeals of Tennessee upheld the constitutionality of Tenn. Code Ann. § 39-17-1307(a)(1), a law “restricting the carrying of firearms in Tennessee.”⁹ The court found “no historical or legal basis for [plaintiff’s] … contention that the state may not regulate the carrying of firearms,” holding that “longstanding Tennessee law is such that the legislature may regulate the carry of firearms with an intent to prevent crime.”¹⁰ The court noted the rights recognized by the Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. City of Chicago, 561 U.S. 742 (2010), but distinguished Embody by noting that “[b]oth Heller and McDonald involved highly onerous restrictions on gun ownership,” whereas Tenn. Code Ann. § 39-17-1307(a)(1) does not.¹¹ The court further noted that there are numerous defenses to the statute, for example firearm possession in one’s residence,¹² or by acquiring a handgun carry permit.¹³

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1. Tenn. Code Ann. § 39-17-1351(a).[↩]
2. 50 Tenn. 165, 171 (Tenn. 1871).[↩]
3. Id. at 181.[↩]
4. Id.; but see Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012) (noting that Andrews, along with several other older cases, is based on an interpretation of the Second Amendment that conflicts with the Supreme Court’s current interpretation).[↩]
5. 11 S.W.2d 678 (Tenn. 1928).[↩]
6. Id. at 678.[↩]
7. Id. at 679, citing Wehnut v. State, 188 S.W. 939 (Tenn. 1916).[↩]
8. Op. Att’y Gen. 09-158, 2009 Tenn. AG LEXIS 212, *8-*10 (Sept. 22, 2009).[↩]
9. Embody v. Cooper, 2013 Tenn. App. LEXIS 343 (May 22, 2013), appeal denied Embody v. Cooper, 2013 Tenn. LEXIS 885 (Oct. 31, 2013).[↩]
10. Id. at *17.[↩]
11. Id. at *17-*18.[↩]
12. Id. at *18-*19.[↩]
13. Id. at *20.[↩]