Restaurant Carry - Court's Opinion 11/25/09

[johnharris]

At a hearing on Friday, November 20, 2009, Nashville Chancellor Claudia Bonnyman has ruled that the 2009 law allowing handgun permit holders to carry into unposted restaurants as long as the handgun permit holder is not consuming beer or alcoholic beverages is so vague that it violates principles of due process and is therefore unconstitutional.

The court reasoned that a law is “void for vagueness” if its prohibitions are not clearly defined (an observation which says volumes about the as yet unchallenged constitutionality of the “local option” on the parks bill, the exceptions to carrying loaded longarms, the prohibitions about whether individuals who have had their rights restored can obtain carry permits, the exceptions to carrying on school grounds, the procedures by which a handgun permit is restricted, etc.)

The court further reasoned that vague laws offend important values. One value is that a man is free to steer between lawful and unlawful conduct and thus this country insists that laws give the person of ordinary intelligence a reasonable opportunity to know what is illegal so that they can act accordingly. Thus, vague laws trap the innocent by not providing fair warning.

The court further reasoned that if arbitrary and discriminatory enforcement is to be avoided, laws must provide explicit standards to limit the actions of those who enforcement them.

The court found that the provision of the new act which required that the “serving of meals constitute[s] the principal business of an established” was too vague for a person of average intelligence to comprehend.

[C. Richard Archie]

Does our Legislature have the intestinal fortitude for re-writing these laws in such a manner as to remove the ambiguity, aligning itself with the Constitution so as to provide the Citizen of average intelligence with the rights proclaimed therein?

[johnharris]

Probably not without a lot of Grassroots pressure......

[C. Richard Archie]

[ProguninTN]

[johnharris]

The Chancellor made a determination under the statute that it was unreasonable to expect people to know whether a particular location was a "restaurant" as defined in the statute or not.

[rheppert]

I thought the whole process seemed too complex when they were making the law (kind of like sausage being made some might say) while they were trying to please all sides.
Maybe something simple like the 51% signs some states use could be used. Then again, this would probably require the active welcoming of such signs by the restaurant owners, not the passive non posting that currently allows packing.

[johnharris]

First, I would oppose a 51% or any other approach that required the business to calculate and post sales data. There have been huge objections historically to anything that would require the property / restaurant to determine and then post their sales percentages because of the cost, the desire to avoid putting that information up at the entrance and the fact that several places in the state will fail the standards and then potentially loose their liquor license and/or be fine for violations.

Second, I come back to the simple solution. Keep in mind that our laws were set up like this starting about 1989. Its illegal to carry a gun in public - violations were a $50 fine. Then, the legislature said BUT if you carry a gun in certain locations (parks, courtrooms, schools, places that sold or serve alcohol), the PENALTY is higher. It was not a separate violation just a higher penalty. Then, the legislature said in 1994 - people who are issued permits can carry handguns in Tennessee. That took care of the $50 fine issue but the legislature did not address the several other statutes which were initially passed solely to create higher penalties for certain locations.

So, if the legislature is going to remove the prohibition as to some locations (parks, schools, places that sell or serve, etc.) then that should be done simply by says ".... this prohibition does not apply to individuals carrying a weapon pursuant to TCA 39-17-1359".

We don't need to get into a situation where by drafting complex language we create landminds and loopholes. If there is a prohibit such as "places that serve" and we get an except then the exception needs to be to the full extent of the prohibition.

[C. Richard Archie]

[kwikrnu]

[johnharris]

I think that the ultimate language on local parks is arguably more unconstitutional - for several reasons than the restaurant law

[tnxdshooter]

Luckily, and fortunately, Curry todd and some others re-wrote this bill and have reintroduced it as HB 3125 and it passed the house 4-2 the other day. The senate is supposed to take it up sometime in april if I read correctly.