Academic journal article The University of Memphis Law Review

Alcohol, Firearms, and Constitutions

Academic journal article The University of Memphis Law Review

Alcohol, Firearms, and Constitutions

Article excerpt

Thousands of Tennesseans now have permits to carry firearms. The legal questions most likely to arise with respect to these permits relate to Tennessee Code Annotated section 3917-1305.' With some exceptions, this statute prohibits anyone from carrying a firearm in a public place where alcoholic beverages are served or sold. After some years of wrestling with the uncertainties of this statute in connection with real, as opposed to merely academic, questions, the authors conclude that, unless the statute is interpreted to prohibit only those activities about which there is no disabling ambiguity, the statute is vague to the point of unconstitutionality under the Due Process Clauses of the United States and Tennessee Constitutions.2 Further, this statute is unconstitutional under Article I, Section 26 of the Tennessee Constitution to the extent that it attempts to regulate the right to carry firearms in a way that does not "bear some well defined relation to the prevention of crime."3 These conclusions are bolstered by conversations with those who advise law enforcement officers on legal matters. They indicate that they also do not know what the statute prohibits and what it does not.

As discussed below, the way to save the statute's constitutionally is to find a legislative intent to limit the statute's purview to places where alcohol is the sole or primary product. These places are (1) a bar open for business (or other establishment open for business where alcohol is the sole or primary product)4 and (2) the premises adjacent to an open bar, such as a parking lot. This legislative intent is easily discernible.

This Essay will take a conservative position; one that maintains constitutionality to the extent it may be possible. Still, there is a substantial chance that a court might find the statute to be in such a legal muddle that it would declare the entire statute void for vagueness. There is also a substantial chance that a court might find the statute broadly unconstitutional as not bearing a "well defined relation to the prevention of crime."5 Neither finding would be unreasonable. In fact, one could argue persuasively that if the three law professors in the state, who probably know more about the statute than any other academic, cannot understand what it prohibits and what it does not, the statute is ipso facto void for vagueness because the average citizen has no chance of figuring out what it means. Further, one also could argue persuasively that strictly prohibiting the carrying of a firearm by, for example, an offduty police officer or a civilian with a carry permit in any building where alcohol is merely sold as the sole or primary product (such as the typical liquor store, which does not allow alcohol to be consumed on the premises and which is about as likely to engender crime by customers as is a corner drugstore) is unconstitutional under the Tennessee Constitution because it bears no "well defined relation to the prevention of crime."6 The Authors choose, however, not to make those arguments here, but rather will set out a position that maintains constitutionality to the extent it may be possible.

Criminal laws, of course, violate the Due Process Clauses of the United States and Tennessee Constitutions if they are vague. Simply stated, the Due Process Clauses require that a statute be drafted clearly enough that the average person plainly knows what conduct violates the statute and what conduct does not. If there is uncertainty, the statute is unconstitutional.7 The United States Supreme Court has stated a number of reasons for this: "`First, vague laws do not give individuals fair notice of the conduct proscribed. Second, vague laws . . . engender the possibility of arbitrary and discriminatory enforcement. Third, vague laws defeat the intrinsic promise of . . . a constitutional regime."" The Tennessee Supreme Court has reached the same conclusion, stating, "'[I]t is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. …

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