by John Harris
Governor Bill Lee called on the Tennessee Legislature to pass a Red Flag law – one that he proposed – before the 2023 Legislative session ended. The Legislators did not consider his proposal but instead they wrapped up business – they thought – and adjourned until January 2024. Governor Lee, apparently thinking of himself as perhaps the “master” of the Legislature, has now stated that he will call a special session to force the Legislature to take up his call for a Red Flag law.
Of course, Governor Lee does not refer to his legislative proposal as a Red Flag law – even though that is what it is. He refers to it as a “temporary mental health order of protection”.
It is important for the public and the Legislators to do a few things. First, compare what Bill Lee says in public and during these interviews about what he thinks his proposed legislation does with what the language of the proposed legislation actually says.
Second, understand that significance of the United States Supreme Court’s Bruen decision (discussed below) which places severe limits on government discretion when it comes to Second Amendment issues with the fact that Bill Lee’s proposal and his talking points are devoid of any apparent appreciation that the Supreme Court’s decision is even relevant.
Governor Lee’s interview on WTN 99.7FM with Matt Murphy
On April 25, 2023, Governor Lee spoke with Matt Murphy of Nashville WTN 99.7 FM regarding his insistence on the passage of a Red Flag law. Although the audio is attached below, here is a summary of Governor Lee’s recorded comments in the interview about his proposed Red Flag law:
– One of his primary objectives with the Red Flag law is to find a way to protect the public from those who are a danger to the public by not letting those individuals have access to firearms.
– He claims that his proposed law is based on an existing law that allows government to take firearms away from a man who is a threat to his wife in a domestic relationship and the government should have that same power with respect to anyone that is a threat to the public.
– He claims that allowing law enforcement to “bring the issue forward” in a court hearing, that there has to be a court hearing, that there has to be a (court ordered) mental health evaluation that shows the person to be a suicide or homicide risk and a judge has to determine that there is no alternative treatment path for the person.
– That the court can then enter an “order of protection” which allows the government to take away the individual’s firearms.
– He claims the order of protection is short (180 days but can be extended repeatedly).
– He claims that this is what Tennesseans want to see happen to protect the public from people who are a threat.
Governor Lee completely ignores the Second Amendment’s threshold requirements as set forth by the United States Supreme Court.
It is significant to note that Governor Bill Lee never, not once, addresses in his defense of his Red Flag proposal whether or how his proposal satisfies the threshold constitutional requirements that have been defined by the United States Supreme Court in its June 2022 decision in New York State Rifle & Pistol Association v. Bruen, 142 S. Ct. 2111 (2022).
The Bruen decision created a national threshold, albeit a stonewall, which defines the boundaries that constrain state authority to infringe the rights protected by the Second Amendment. It is a bright line that cannot be crossed according to the Court. However, Governor Lee continues to blatantly disregard the Court’s holding. Governor Lee ignores the threshold against which any proposed government regulation must be measured. This constitutional blockade prohibits any proposed government infringements on the rights protected by the Second Amendment unless certain conditions are shown to exist by the government proponent.
In Bruen, the Court stated that the Second and Fourteenth Amendments operate together to guarantee individuals not only the right to “keep” firearms in their homes, but also the right to “bear arms” in public. The Second Amendment protects the ability of “ordinary, law-abiding citizens” to carry constitutionally protected arms “for self-defense outside the home,” free from infringement by either federal or state governments. Id. at 2122, 2134. Just as the Second Amendment mandates with the phrase “shall not be infringed.”
The Court held that “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.”
The Court stated that a government entity has a high burden when it proposes any possible infringement on the rights protected by the Second Amendment. The Court stated that in order to justify its regulation the government – Governor Bill Lee – may not simply posit that the regulation promotes an important interest, such as “public safety”.
Instead, according to the Court, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’” Bruen at 2126.
The Court stated that the only appropriate inquiry would be what the “public understanding of the right to keep and bear arms” was during the ratification of the Second Amendment in 1791. Bruen at 2137–38.
Thus, what the Supreme Court did in Bruen is hold that the public debate about the scope of the prohibition on government infringement of the rights covered by the Second Amendment ended in 1791 with the adoption of the Second Amendment. The Court stated that only those laws that existed as of 1791 and which were sufficiently widespread to be part of the “nation’s historical tradition” as of that time for dealing with issues – any issues – pertaining to civilian ownership of firearms can be considered as options by government today. That is, if the government cannot point to a specific set of laws as of 1791 that dealt with an issue – such as the mentally defective possessing a firearm – then the government cannot rationalize new categories of infringements today.
The burden to show the scope of available options – as of 1791 – to deal with mentally or emotionally ill individuals who pose a risk of harm to themselves or others is on the government. However, Governor Bill Lee has never identified any law having a “national historical tradition” as of 1791 that would support his call for any enhanced order of protection, i.e., Red Flag law today. Further, as of today, no Legislator has announced any historical precedent existing as of 1791 would be the basis for a Red Flag law in Tennessee.
Yet, Governor Bill Lee, in callous but not surprising disregard of the United States Supreme Court and the Constitution, proposes a complicated legislative package that exhibits a cavernous vacuum of constitutional stewardship on his part. The simple fact is that nothing that Governor Lee has proposed can be aligned with any law or regulation that existed as of 1791 for dealing with people who pose a risk of harm to themselves or others.
Do Governor Lee’s statements mirror the content of the legislation he has proposed?
Set aside for the moment the fact that Governor Lee is ignoring both the Second Amendment and the United States Supreme Court, consider whether his statements during the interview fully reflect the substance of the 13 page bill that he has proposed.
Governor Lee defines “mental illness” to include a psychiatric disorder. but not intellectual disabilities (such as conditions which might be characterized by limitations in cognitive functioning). Governor Lee goes further and includes alcohol or drug dependence (perhaps including prescription drugs) as a “mental illness.”
Governor Lee defines a “serious behavioral condition” as one that includes any condition “at any time during the past year” that is a “diagnosable mental, behavioral, or emotional disorder of sufficient duration to meet psychiatric diagnostic criteria that results in functional impairment that substantially interferes with or limits the person’s role or functioning in family, school, occupational, or community activities….” Thus, there is no requirement that the condition be medically diagnosed – just that it be “diagnosable”. Further, the term includes both behavioral or emotional conditions that “substantially interferes with or limits” a person’s ability to function in a family, school, job or community functions. That is much broader than the term “mental defective” that is used in the Gun Control Act of 1968.
Although Governor Lee stated in his interview that the condition would be one of suicidal or homicidal manifestations, the language of his bill also includes any “unlawful act … [that] places another in reasonable fear of violent behavior and serious physical harm.” Therefore, his proposed Red Flag law would apply potentially based on the “fear” of a third person.
The proposal creates an ex parte procedure where a law enforcement officer must file the petition. The petition must “allege that the respondent poses a substantial likelihood of serious harm by having a firearm or any ammunition in the respondent’s custody or control or by purchasing, possessing, or receiving a firearm or any ammunition”. Presumably, the petition could not be based on the individual having knives, swords, explosives, possession of gasoline, motor vehicles, ball bats, any other possible weapon or even mere physical stature or capacity. But note that the person does not have to actually own a firearm – it is enough if the person could “purchase, possess or receive” a firearm! Notice of the petition must be given to the potential victim if possible but not to the individual.
Once the ex parte proceedings are started – any without any notice of the proceedings being given to the individual – the “court must order” that a) an evidentiary hearing be held in 3 to 5 days, the appointment of a taxpayer funded attorney to represent the individual (without a showing of need – and unless the individual hires private counsel), and ordering the individual to submit to “an assessment for suicidal or homicidal ideation by an evaluator” (which does not clearly have to be a licensed physician). The petition, notice of hearing and ex parte order to submit to an assessment are to be served on the individual by law enforcement.
When the hearing takes place, the court can issue the “temporary mental health order of protection” for up to 180 days (but it can be expended over and over again) if it finds that the “respondent has a mental illness, serious behavioral condition, or serious emotional disturbance” and that the “respondent poses a current and ongoing substantial likelihood of serious harm by having in the respondent’s custody or control or by purchasing, possessing, or receiving, a firearm or ammunition.” The court can order that “additional mental health evaluation or substance abuse assessment is required.” The court can order that “the respondent attend available mental health
treatment, which may include counseling programs that address violence and control issues, anger management, or substance abuse problems.”
Thus, there is no requirement that the individual actually ever owned or possessed a firearm. There is no requirement that the individual actually threatened anyone – they could for example simply be addicted to alcohol. The order can be based on actions as much as a year old. And, the list of serious constitutional and due process concerns goes on. The individual is entitled to ask for a rehearing or relief from the order only once every 180 days.
Although the proposed legislation states that the “issuance of a temporary mental health order of protection is not an adjudication of the respondent as a mental defective for purposes of 18 U.S.C. § 922” there is absolutely no way that the state can tell the ATF/FBI how to interpret such an order under the Gun Control Act or whether the ATF/FBI or even another state might deem such an order to result in a permanent lifetime ban.
It appears from the legislation that the proceedings are all “civil” rather than criminal. Further, there is nothing in the proposed legislation that makes the mental health records, mental health assessment, alcohol or drug dependence testimony or any part of the proceedings either confidential or subject to expungement if the “order of protection” ever expires.
Does Governor Lee understand his own proposed legislation?
Certainly it appears that Governor Lee has been given a briefing or talking points by someone, but it is not clear that he understands that his legislation is far broader than his radio statement indicates. Clearly, the legislation is not limited to those who are currently suicidal or homicidal and who have taken some affirmative steps to demonstrate that conviction beyond some mere “ideation.”
Governor Lee claims that the proposal is not preemptive, but it unquestionably contains a number of significant ex parte occurrences including court orders directing the individual to submit to an “assessment”. Although this is a “civil” proceeding, rather than a criminal prosecution, it is questionable whether a court should be able to consider the deprivation of constitutionally protected rights on an involuntary court order submission to a mental health, emotional health, behavioral or even drug/alcohol dependency assessment.
Although Governor Lee claims the procedure is temporary, that adjective, like his efforts to avoid calling it a Red Flag law, is spurious. Clearly, deprivation of a constitutionally protected right for one or more periods of 180 days is likely not what most ciitizens would consider a temporary deprivation.
Finally, Governor Lee claims that there are no current options for the government to deal with someone who is a suicidal or homicidal threat. That is simply false. Current Tennessee law and the law in many other states provides for what is commonly referred to as emergency involuntary committals. That is a procedure which is based on actual medical assessments that someone as a result of a mental health issue is an imminent threat of harm to themselves or someone else. If that mental health determination is made, a court can issue an order to involuntarily admit an individual to a psychiatric hospital for up to 2 weeks for mental health evaluation and potential treatment. Certainly, this procedure is currently available but Bill Lee says that there are no such options available. What he means, perhaps, is that an option to get someone emergency mental health treatment and hold them under supervision in a hospital is not what he wants – which is to send law enforcement out to seize firearms but then leave the risk – the mentally disturbed individual – free to commit suicide or homicide by other means. Bill Lee appears to be uninformed or willfully deceptive.
What is Bill Lee’s true objective?
The structure of this legislation makes cleat that Governor Lee’s true objective is not to protect or address the individual who may have an actual serious mental or emotional health condition that is so severe that the individual is medically determined to be suicidal or homicidal. There are many instances of people committing suicide with drugs, knives, jumping from bridges, walking into traffic, threatening police officers, drinking poison, or breathing certain gases, etc. Nothing in his proposed legislation would intervene to stop a suicide unless it is to be caused by a gun or somehow by ammunition without a gun.
Likewise, if the person is medically determined to be homicidal, merely taking a firearm or adding their name to a federal database will do nothing to stop the individual from using numerous other common or inventive weapons or even physical brutality to effect the murder or serious injury.
Nothing at all in what Bill Lee says and nothing in his proposed legislation evidences that he wants to eliminate the risk that an individual, a specific individual, an individual who due to a serious mental health issue is a high probability for suicide or homicide from pursuing those goals. Nothing in Bill Lee’s proposal deals with the only risk being discussed – the mentally ill individual.
Indeed, if Bill Lee’s proposal were to be implemented, what would likely result is a mentally ill individual that is free to intermingle in public or access potential victims who is now perhaps both more angry (due to being assessed) and more intent on carrying out any planned course of action.
The only goal that Bill Lee’s proposal seeks is gun control in the form of gun seizures that violate the Second Amendment.
Governor Lee still fails to comprehend that Tennessee is not a “constitutional carry” state.
As an aside, Bill Lee continues to claim that he is “the governor that brought constitutional carry to Tennessee” even though the law is clear that Tennessee does not have real constitutional carry.
If Bill Lee cannot accept the fact that his affirmative defense to a weapon’s charge is not true constitutional carry, do we really expect that he is working now to make sure that the Supreme Court’s threshold burdens relative to government infringements of the rights protected by the Second Amendment are being satisfied?
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John Harris is the Executive Director of the Tennessee Firearms Association.
Photo “Bill Lee” by Gov. Bill Lee. Background Photo “Tennessee State Capitol” by Ken Lund. CC BY-SA 2.0.
