Guns and Restaurants Lawsuit commentary

[johnharris]

The lawsuit which has been filed by Rayburn and 9 other unnamed individuals is primarily a publicity stunt.

If you have not read it, a copy is available here:

http://www.tfaonline.org/index.php/news ... _nusiance/

The plaintiff claims that the change in the law is a public nuisance? Really? If his place is so frequented by out of control patrons, then perhaps he should properly post it as the law allows and allow other restaurants to decide on their own what they will do. But to accuse the General Assembly of legislative malpractice borders on the absurd and irresponsible just because of a disagreement with the policy that it created.

First, consider the legislative history. The issue has been addressed in the General Assembly for more than 10 years that I am personally aware of. It has seen many formats. It was offered as bills where restaurants could "opt in" but restaurants opposed that. It was offered as a bill where various percentages such as 60, 70, etc., of the sales were required to be non alcoholic and/or non beer (those are separate under TN law). But restaurants opposed that.

The point is that there have been many versions considered by the General Assembly. There have been many debates. This change was not done either lightly or as a knee jerk response to some specific instance.

The Senate has passed the bill each of the last 4 years by overwhelming majorities. The Restaurant Association repeatedly opposed the change in the law. During these debates, the General Assembly has considered testimony by law enforcement (many individual sheriffs and chiefs of police support it contrary to news reports). There has been proof considered of the actual law in 39 other states. There has been proof of the law in the states that touch Tennessee. There has been consideration of whether there was a need for curfews, age restrictions, etc. There has been consideration of whether TN's change should allow the moderate consumption of alcohol/beer just as the driving law allows and just as some other states do allow.

What was missing from all of the committee testimony that I have seen and heard over the last 10 years is any credible evidence, study or proof whatsoever from any state, law enforcement agency or demographic studies that the possession of a firearm by an individual certified to carry a firearm by the state (who undergoes a TBI, FBI and TDOS background check as well as being certified in a state designed firearms training course) poses any increased risk whatsoever. To the contrary, all of the evidence indicates that the incident of successful criminal events will decrease not increase.

Opponents also argue that "insurance" will increase, employees will be put as risk, etc., Once again, these conclusory statements have been made by there is no proof of any of it.

What the data does show is that permit holders in 2008 had a revocation rate based upon charges (not convictions) of felonies that was .00121 percent of the population of permit holders. That is many times less than the general population, and it is actually less than law enforcement as a population group. Demographics of permit holders show that the most frequent demographic is the 45 to 65 age group with males obtain permits in a ration of 3:1 over females.

Now, the law that passed was an amendment to the existing law that prohibits possession of firearms in places that serve alcohol or beer. That law was not repealed but an exception was added for permit holders. Under the change in the law, the permit holder cannot be consuming or under the influence of alcohol/beer or any controlled substance (TCA 39-17-1321).

In addition, the change in the law allows restaurant owners who have a concern or preference to post their property "no guns" as Rayburn has already attempted (he failed to follow the law however) to do (TCA 39-17-1359).

It is also important to understand that the change in the law, and TN law in general prohibits any location that would be a "bar." Any place that has a beer or liquor license must meet the definition of a restaurant in TN which requires that at least 50% of the business be from food sales - not alcohol/beer sales. Some places, such as Rayburn's may not in fact pass that standard if an accurate audit is performed - which may be on the horizon.

So, if the permit holders are not likely to commit crime - including drinking while in possession; if permit holders remaining in possession of the firearms is actually better than leaving the firearms unattended in the vehicle where they are subject to theft; and if restaurants have the capacity to post signs prohibiting firearms if they choose - then why was this lawsuit filed? All of the reasons given by the plaintiff in the complaint are summary and misleading conclusions and not a single supporting piece of reliable evidence has been offered. One reason that is not reported by the news media is that Rayburn (the only named plaintiff) declared in December 08 that he wants to run for Metro Council. Another reason is obviously all the free press he is getting.

Once again, if Rayburn is personally opposed to this change in the criminal code, why is he not content to simply post his restaurants as he is allowed to do and let the market/consumer handle it? Why does he want to force a "Nanny State" where a standard rule applies to every establishment including the chains?

Now, step back and consider the potential legal framework. The law is clear that we have 3 branches of government. The General Assembly/legislature is exclusively vested with the power to set public policy - period. Its authority is limited only by express restrictions in the state and federal constitutions. A court cannot set aside a law if it disagrees with the policy. It can only do so if a constitutional provision precludes the legislative policy determination. None has been specifically identified. A potentially conflicting law or common law doctrine (e.g., nuisance) will not constrain a legislative policy determination.

Another consideration is that the legislature has extremely broad authority to determine what is and is not a criminal act as a matter constitutional law and intrastate activity. It is important for everyone to realize that the law in question is a part of the criminal code of Tennessee and consequently the legislature's authority to define what is and is not criminal conduct is even less subject to judicial review.

Sadly, Rayburn and his cohort drinking buddy, Adam Dread, have pursued a legal challenge when the correct procedure was to participate in the legislative process. They still have the change to go back to the legislature and ask to change the law but all of the available evidence establishes that the Tennessee legislature has already devoted significant and careful consideration of the arguments on both sides of this issue and decided what the appropriate state policy will be going forward.

As Senator Jackson stated in the floor debates on the veto override, there is no longer any room for debate that the 2nd Amendment to the United States constitution and Article 1, Section 26 of the Tennessee Constitution both recognize and protection and individual right to keep, bear and wear arms and that right includes - but is not limited to - the right to use firearms for personal self-defense. Because it is an individual right guaranteed by both constitutions, constitutional law principles are applicable and provide that a state must establish the existence of a "compelling state interest" involving strict scrutiny before that right can be restricted or infringed. No longer and liberals seek to infringe this right by asking the wrong question - such as "why do permit holders NEED to be able to carry a firearm."

I you have not seen it already, I would encourage everyone to watch Senator Doug Jackson analysis in the floor debates on the veto override of HB0962 - the restaurant law.

see www.tfaonline.org/index.php/live_video for a copy of the video brought to you by the Tennessee Firearms Association.

[Grunt67]

John, you're right , of course. It seems to me, that Rayburn is enjoying his "15 mins. of fame". He, and
the media have taken the first interview he made on the street & turned it into a media feeding frenzy,
and another frivolous lawsuit. He & his attorney went so far as to call us "vigilantes", which, of course,
the media printed.
If these restaurant owners are so concerned about public safety, as they claim, why not hire armed security
guards for inside & outside their establishments. Certainly, Ronald Serpas shouldn't mind providing someone
at Metros' expense, huh?
I'm not a liability expert, but why wouldn't Rayburn be just as liable for an incident where someone was injured,
or killed inside with no protection, with a no gun sign on the door?

[johnharris]

[ProguninTN]

It seems to me that Rayburn et al should just put up 39-17-1359 signs if they really don't want guns in their establishments. Also, using John's analysis, I would think a dismissal of the case would be appropriate.

[KevinMcCauley]

Reading the lawsuit....it alleges that it is legal to drink with your gun prior to entering a business that serves alcohol. These people are mental.

[KevinMcCauley]

Page 13: "...Tennessee's 'shall issue' gun permit law forces officials to give permits to 'almost everyone', including persons with violent criminal history."

[KevinMcCauley]

They even include links to Jeff Woods' blog and Youtube. They also allege that if Nicki had been allowed to defend her husband that night at Johnny's, it would of constituted a "vigalante [sic] shooting".

This is a freaking joke. This man is a Harvard grad and Vandy law professor?????