Common sense and the Second Amendment

Each day Americans have their rights to life and happiness alienated violently by gunfire. Lawmakers can take a common sense approach to solutions.

August 11, 2023 5:59 am
Sen. Heidi Campbell, D-Nashville, and the mother of two, addresses a crowd at a Moms Demand Action for Gun Sense in America rally at the Cordell Hull Legislative Building. (Photo: John Partipio)

Sen. Heidi Campbell, D-Nashville, and the mother of two, addresses a crowd at a Moms Demand Action for Gun Sense in America rally at the Cordell Hull Legislative Building in April 2022. (Photo: John Partipio)

Modern Second Amendment history is stained with death, blood, and tears.  

Data from Pew Research Center from 2021 found 48,830 U.S. gun violence deaths, the most on record for a single year. Suicides accounted for 54% and homicides for 43% of these deaths.   

But gun deaths vary widely by state, and states with the highest level of gun ownership have the highest rate of gun deaths. According to Pew’s research, Mississippi, Louisiana, New Mexico, Alabama and Wyoming have the highest gun death rates per 100,000 people. “Conservative” Tennessee’s gun death rate was about 2.5 times more than “liberal” California’s rate and “red” states typically have the highest gun death rates.   

The problem here is further defined when compared to peer countries. A 2022 Institute for Health Metrics and Evaluation report reveals that U.S. firearm homicide rates were eight times more than Canada, 22 times more than the entire European Union, 23 times more than Australia, 103 times more than the United Kingdom, and 206 times more than Japan.    

Handguns account for most homicides and suicides in the U.S., but because AR-15 type weapons are often used in mass murders — defined as four or more victims excluding the shooter — the lethality of this weapon is important. The AR-15 is the “civilian” version of the military’s M-16 that is specifically designed to kill efficiently.  The kinetic energy imparted by a bullet is a firearm’s most significant lethality factor. An AR-15 bullet has about three times the kinetic energy of a typical 9mm handgun bullet and tissue and bone destruction from an AR-15 bullet is correspondingly much greater than from a 9mm bullet.

A 9mm bullet will go through a human liver; an AR-15 bullet will destroy a liver. An AR-15 is more accurate than most handguns and is easier to shoot rapidly.   

Compared to a handgun, an AR-15 is far more deadly and capable of killing and wounding many more people in less time than would a handgun as illustrated by recent mass murders in Las Vegas (60 deaths, 413 wounded), at Robb Elementary School in Uvalde, Texas (21 deaths, 17 wounded), an El Paso shopping center(23 deaths, 23 wounded), Sandy Hook Elementary in Connecticut (26 deaths) and at Nashville’ s Covenant School (6 deaths).   

In the U.S. Supreme Court’s ruling on New York State Rifle & Pistol Ass’n Inc. v. Bruen, Justice Samuel Alito wrote, “Our holding decides nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun.  Nor does it decide anything about the kinds of weapons that people may possess.”

Gun violence comparisons between the U.S. and peer nations reveal a substantial US firearm problem that is much more than a “people” problem.  The U.S. does not have significantly higher percentages of criminals, mentally ill or the disadvantaged than peer countries. The U.S. however, has an estimated 400 million guns, many more than peer countries.  

Reasonable solutions to the very high level of gun violence in the nation will involve much more than “prayers and thoughts” as the only action offered by irresponsible politicians who seek to appease voters but offer no works. 

Otherwise, increases in gun violence are highly predictable. This public safety problem is complex and there are no easy solutions to complex problems: A comprehensive approach is required to increase public safety from gun violence.   

Practical solutions to gun violence must also consider recent Supreme Court Second Amendment decisions. In District of Columbia v. Heller (2008), the Court considered the constitutionality of a strict DC ordinance that banned home handgun possession and ruled that the Second Amendment allowed handgun home possession for self-defense. 

Subsequently, in New York State Rifle & Pistol Ass’n Inc. v. Bruen (2022), the Court considered a 1911 New York statute that required showing “special need” subject to administrative discretion to obtain a gun carry permit.  The Bruen Court ruled the statute unconstitutional.  

In Heller and Bruen, the Court used historical evidence — “originalism” or “textualism” that is arguably “cherry picked — to determine the firearms tradition in the 18th century when the Second Amendment was enacted.  By basing their decision on historical tradition, the  Bruen majority conceptually locked firearm regulation present and future into the dead hand of the past.  

Significantly, however, the Bruen Court did not rule that firearms could not be regulated. Justice Samuel Alito’s concurring opinion in Bruen stated “Our holding decides nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun.  Nor does it decide anything about the kinds of weapons that people may possess.”

Limits: The current Supreme Court has not ruled whether a right to keep and bear arms, as stated in the Constitution, covers AR-15s, grenades, artillery, tanks, and aircraft with precision guided bombs.

Justice Brett Kavanaugh, in his concurring Bruen opinion, stated “[this] decision does not prohibit States from imposing licensing requirements for carrying a handgun for self-defense.” He also quoted from Heller  that “the Second Amendment is neither a regulatory straight jacket nor a regulatory blank check. . . . [T]he right secured by the Second Amendment is not unlimited.”  

These legal decisions dealt only with the right to possess and carry handguns and emphasized that this right was subject to regulation left undefined. To date, the current Supreme Court has not ruled whether a “right” to “keep and bear arms” covers AR-15’s, grenades, artillery, tanks, and aircraft with precision guided bombs. Pending cases may clarify the Second Amendment.  Illinois enacted the 2023 “Protect Illinois Communities Act” (“PICA”) that renders illegal the sale, purchase, manufacture, delivery, or  importation of multiple weapons, including AR-15’s and high-capacity  magazines. The Supreme Court ruled recently that PICA remains in effect while appeals proceed.  

This Supreme Court has also not addressed The National Firearms Act of 1934 that criminalized civilian possession of some firearms. Most recently, the Court has agreed to hear a Texas case concerning whether firearms can be taken because of a domestic restraining order.

Firearm violence clearly is a  very significant US public safety problem primarily arising from easy access to firearms exacerbated by mental illness and criminal activity. 

If about 50,000 violent deaths with many others severely injured each year were caused by a disease, Americans would demand a cure. Americans need to consider thoughtfully what kind of country we want and seek common sense solutions for firearm violence.  

As Tennesseans near a special legislative session dedicated to “public safety,” I offer a few suggestions to our lawmakers: 

  • Tennessee lawmakers should consider that licenses or permits are required to drive a motor vehicle that must be registered and insured with use highly regulated, to fish and hunt and for multiple occupations, including cosmetologists and barbers, home inspectors and court reporters, each with associated regulations.In contrast, Tennessee no longer requires a permit for anyone 21 years old to carry a handgun concealed or openly in most public places. Is it unreasonable for Tennessee to ban concealed handgun carry and require a permit to openly carry any firearm?
  • Our leaders should consider focusing resources on effective violence prevention programs in  areas where gun violence is greatest. They could require background checks for all gun sales and purchases restrict sales to non-felons 21 or older — Tennessee’s legal drinking age.
  • Other suggestions are to increase funding for the identification and treatment of mental illness with a focus on reducing the stigma associated with seeking treatment for mental illness.    
  • Why not enact civil and criminal liability statutes for the failure to secure firearms from access by juveniles and those subject to a domestic restraining order?   
  • No credible self defense or hunting need has been identified for military style weapons that created a significant public danger due to their large capacity magazines, accuracy and the high kinetic energy of the ammunition that makes injuries virtually unsurvivable. At the least, consider making the sale and possession of magazines for these types of weapons outside an owner’s property or gun clubs be illegal subject to civil and criminal liability.
  • Why not allow Tennessee courts to order the temporary removal of firearms from those subject to domestic restraining orders or otherwise found to be a serious threat of gun violence, subject to a prompt subsequent hearing, with guns to be stored by the state — not a family member or friend?
A man walks his daughter from a school near Nashville's Covenant School on March 27, 2023. (Photo: John Partipilo)
A man walks his daughter from a school near Nashville’s Covenant School on March 27, 2023. (Photo: John Partipilo)

Opponents argue deceptively that any firearm restriction is a slippery slope to further restrictions. They ignore that all life is lived on a slippery slope. In addition, opponents contend that criminals will always obtain weapons and restrictions on law-abiding citizens will place them at a disadvantage. Requiring a permit to carry a weapon outside the home and regulating weapon sales are very minimal restrictions compared to state and local burdens on automobile ownership and use. 

Our Declaration of Independence begins with a recitation of “inalienable rights,” including “life, liberty, and the pursuit of happiness.” Each day Americans have their rights to life and happiness alienated violently by gunfire.  

There are reasonable and practical solutions to American gun violence. The time for action is now.  The failure to act effectively will only sacrifice more innocent blood on the altar of the Second Amendment where too many unthinkingly worship.   


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Loy Waldrop
Loy Waldrop

Loy Waldrop practiced law for almost 50 years. He obtained a mechanical engineering degree from Clemson University as a Distinguished Military Graduate. Subsequently he served over two years active duty with the U.S. Army Security Agency, during which time he was promoted to captain. After working as an engineer when his active service ended, he attended the University of Tennessee College of Law where he was an honors graduate. Soon after graduation, he became the sixth lawyer in a firm that subsequently has grown to over a hundred lawyers in the firm’s Knoxville, Nashville and Memphis offices. His law practice concentrated on the construction industry, and he now focuses on serving as a mediator and arbitrator for the resolution of construction project disputes. He is retired from representing clients. Waldrop participated in the 2018 Bredesen Senate campaign and has served the Knox County Democratic Party as a precinct chair and in get-out-the-vote activities. He and his wife, Kathy, reside in Knoxville and have three daughters and five grandsons.