How to Protect the Right to Keep and Bear Arms and Why It Is Essential to Protecting Individual Liberty
By Tobi Maier, Esq.
Note: This article is intended solely for informational purposes to provide the reader with ideas and templates for legislation to protect the right to keep and bear arms at the state level. It is not to be taken as legal advice. Laws change all the time, and a state could at any point legislatively or judicially invalidate a law cited below. Further, circumstances which may seem insignificant to the reader may fundamentally alter the legal outcome of a particular case. If you have questions regarding specific circumstances, you may want to consult with a firearms law attorney in your state.
I. Introduction
The right of private citizens to own, possess, and carry effective weapons (including, but not limited to, firearms) is crucial for the protection of any individual freedom. Although many people have been led to believe that banning certain weapons (or limiting them to law enforcement) might make society safer, the opposite has proven to be true, as such measures make life easier for criminals, while disempowering law-abiding citizens and depriving them of their only effective way to protect themselves against criminals, dangerous animals, and tyrannical governments. The last point is key: time and time again, government atrocities, persecution, and genocide have been preceded by a disarming of the civilian population. Once the people were defenseless, mass arrests, deportations, and other cruelties that often cost millions their lives ensued. In heavily armed societies, on the other hand, measures that leaders have serious reason to believe most citizens would consider worth revolting against aren’t even rolled out in the first place.
“Gun-control” measures usually begin while society is still relatively free and large parts of the population cannot imagine that it would ever become tyrannical. Weimar Germany, for example, was a democratically run republic when the Nazis took over and began to disarm the population. Once a government adopts tyranny, many people will still support the new dictatorship, as they believe it is in the public interest.
The Founding Fathers, therefore, recognized the right of the people to keep and bear arms in the Second Amendment (2A) to the United States Constitution as “being necessary to the security of a free State.” In most other countries, the legal protection of this God-given right is much weaker. Even in the U.S., however, it is under constant attack; draconian measures, which digital ID, digital currency, etc. will enable, could ultimately face a roadblock if the population is physically able to fight back when they realize that they have been lured into complete tyranny.
For that reason, protecting the right to keep and bear arms is critical! Even if a digital prison (or some say “digital concentration camp”) is being erected around us as we speak, it is likely that anyone intending to use it for nefarious purposes will first want the population to be disarmed as much as possible, before ultimately locking the door. Just remember how harsh the coronavirus-lockdowns were in jurisdictions like Australia, which had been disarmed in advance, compared to highly armed states in America.
Efforts to disarm the population usually seek to limit:
- The location where one can bear arms (so-called “gun-free zones”).
- The type of weapons available to regular people (machine-gun ban in the U.S. in 1986, “assault-weapons” bans and magazine-restrictions in the U.S. in various states, knife-bans in the UK and various EU countries).
- The people who are allowed to possess them (e.g., via rule-out criteria, weaponizing mental health, relationship disputes, run-ins with the law).
In jurisdictions that don’t have the constitutional protection Americans enjoy, ideology alone can be enough to deprive someone of eligibility (e.g., membership in a certain political party).
Effective legislative protection should include the following:
- Protection against federal overreach (such as restrictions, registration, bans, confiscation, etc.)
- Protection against private entities rendering 2A rights meaningless (landlords, doctors, employers, venues, other businesses)
- Immunity for law-enforcement officers who refuse to violate individuals’ constitutional rights
- Protection against Red Flag or Risk Protection Order laws
- Prohibition of override by any declared emergency
- Creation of civil recourse for citizens whose constitutional rights have been violated
- Penalties for violations by government agencies and their employees or agents, including fines, disciplinary measures, civil and criminal liability, etc.
- Prohibition of acceptance of funds for gun control measures by state agencies and political subdivisions of the state
II. Legislative Action
1. Legislation Passed
Pushback Against So-called “Red Flag” or “Risk Protection Order” Legislation
Several states have enacted Red Flag laws or “Risk Protection Order” legislation, which requires little more than a baseless accusation (by, for example, a domestic partner, neighbor, coworker, or the like) that someone might pose a danger to themselves or others for someone’s firearms to be confiscated without due process. Many critics fear that such laws could be used to conduct large scale gun-confiscations without people noticing the pattern for a long time, as they would in the case of a more overt door-to-door gun confiscation.
In March 2024, the Biden administration created the “National Extreme Risk Protection Order Resource Center”1 with the stated goal of incentivizing state and local governments to implement Red Flag laws.
To counter such efforts, Tennessee passed HB 20352 (now in effect as T.C.A. § 39-17-1329), which makes it illegal for any political subdivision of the state (e.g. city, county) to accept “a grant or other source of funding for the purpose of implementing an ordinance, rule, executive order, judicial order, or judicial finding that would have the effect of enforcing an extreme risk protection order against a resident of this state.”
Notably, the majority of the senators and representatives of the Tennessee General Assembly took a hard stance against the governor’s push to pass a red-flag law in that state in 2023. The governor even called an extraordinary session later that year just to pass a risk-protection-order bill, but the legislature, spearheaded by a group of brave and principled senators, stood up to the governor and refused.
Doctors and Teachers Acting as Snitches for Potential Gun-Grabbers
Missouri is one of several states that have passed legislation3 to prohibit teachers from asking minor students whether their parents own guns and healthcare providers from asking their patients about firearm ownership if this issue is unrelated to the patient’s visit. Other states that have passed similar laws include Minnesota, Florida, and Montana.
Your Home
A growing threat to citizens’ 2nd Amendment rights comes from landlords prohibiting their tenants from having firearms in their apartments, which practically renders this right meaningless. Most Democrats embrace such infringements, and many Republicans refuse to help, instead naïvely stating that the government shouldn’t tell private businesses what to do. This argument, of course, ignores the fact that any business open to the public at large is subject to a variety of restrictions and regulations, especially when it comes to civil liberties. Aside from needing to meet fire-safety and other codes, businesses are also not allowed to discriminate on the basis of a variety of issues. Hence, prohibiting businesses from disenfranchising customers (in this case, tenants) from one of their most fundamental constitutional rights, appears warranted. This concern will be especially apparent to Solari readers, given their familiarity with the assault on property rights and land ownership. As fewer people become able to afford their own home, more renters will be left vulnerable to private entities, including global corporations, taking away their constitutional rights.
Minnesota is one of the states that has codified this protection for its residents. Minnesota law4 states in plain and simple terms that “A landlord may not restrict the lawful carry or possession of firearms by tenants or their guests.”
Colleges and Universities
Many states have passed legislation to clarify that their students are not second-class citizens without constitutional rights and do, in fact, have the right to keep and bear arms as well, including on campus. Utah has the strongest law5 in that regard.
2. Proposed Legislation
Second Amendment Sanctuaries
Some jurisdictions have declared themselves “2nd Amendment sanctuaries,” refusing to enforce unconstitutional infringements.
An example of a 2nd Amendment sanctuary state bill is Pennsylvania’s SB 551 (2023).6 It contains penalties for state actors trying to commit or assist in the commitment of infringements upon citizens’ constitutional rights, as well as a prohibition against accepting federal funds for gun-control measures. It would also require the state to assist residents of Pennsylvania who are prosecuted by the federal government for violations of a federal law contrary to the bill.
“Gun-free Zones”
Geographical restrictions also often have the effect of rendering the right to bear arms ineffective. So-called “gun-free zones” are an increasing problem in this regard. Over 90% of mass shootings happen in “gun-free zones,” and related crimes, such as car break-ins, occur more frequently around locations designated as “gun-free zones,” as the odds of finding a firearm, stored there by a law-abiding citizen, is higher near such locations, thus increasing the return-on-risk for thieves.
In 2016, Tennessee’s SB 17367 would have clarified that a person or entity who decides to restrict an individual’s right to bear arms on its property assumes absolute custodial responsibility for the safety and defense of that individual while the individual is on that property or on property the individual needs to traverse in order to get there or get back to the location where the individual’s firearm is stored. Note: The bill was amended before it passed (which is very common) and, as enacted, the law now clarifies that a person or entity cannot be sued for not prohibiting firearms on their property.8 This is still good, but the original bill offered more clarity in its protection.
Civil Recourse for Infringements
A great example for a bill to create both civil and criminal liability for government employees, officials, or agents who infringe upon a citizen’s Second Amendment rights, and at the same time create a civil recourse for victims of such infringements, would have been Tennessee’s HB2689/SB2516.9
Legal Certainty for Armed Victims Standing Up to an Attacker
Almost as important as the right to keep and bear arms is legal clarity that the victim of a crime does not him- or herself go to prison for defensive use of a firearm. A Tennessee bill (SB 908/HB 994)10 would have clarified that a victim of a crime holding a criminal at gunpoint until law enforcement shows up is not committing a crime him- or herself (currently, doing this constitutes aggravated assault with a deadly weapon under Tennessee law). Like the other bills in the “proposed” section, this bill was “killed” in the legislative process and never became law.
The difference such legislation can make became obvious when, just three months after this bill would have gone into effect, if it hadn’t been killed in a subcommittee, Tennessee citizens were hit by a major flood. When looters took advantage of the flood victims, Tennesseans who tried to protect their property by brandishing a weapon found themselves guilty of a much more severe crime than the criminals stealing their belongings. Had Tennessee’s SB 908/HB 994 passed, Tennessee’s law would have been a lot more victim-friendly when the disaster happened. Because the bill did not become law, an armed victim who stood up to a criminal during the disaster might end up going to prison, but that person would have walked free had the bill passed. Simultaneously, criminals would have faced a higher risk of getting arrested, while, without the bill, they continue to enjoy protection against their victims under Tennessee law.
A note on “killing” a bill:
There are countless ways to stop a bill from becoming law. Many of those do not involve an actual yes-or-no vote on the bill, thus making it difficult for the average voter to identify who supported or opposed that piece of legislation. Methods to stop a bill in the legislative process, usually before it even gets to the floor, include the following:
- The bill not receiving a so-called “second” (that is, no other member supports a motion to vote on the bill)
- Not putting the bill up for a vote in the first place
- Assigning the bill to non-existing committees
- As in the case of the Tennessee bill to protect victims, assigning a bill to a so-called “Summer Study”
The procedural ways to stop a bill from becoming law vary from legislature to legislature. All of the various methods to stop a bill from becoming a law are collectively referred to as “killing” a bill.
Note: Given the avalanche of bills every year, the fact that it is way easier to kill a bill than to pass one is not per se a bad thing, as many “bad” bills get prevented from ever becoming law in this way as well. The Founding Fathers intentionally created high hurdles for the enactment of new laws to ensure the nature of the republic could not easily be changed overnight. However, it also makes it very hard to pass good legislation into law.
III. Administrative Action
Barring a law to the contrary, a state’s executive branch can, for example, remove “gun-free zones” on government property (i.e., simply remove the “no firearms allowed” signs).
Likewise, barring a law to the contrary, a state’s executive branch can unilaterally declare reciprocity for carry-permits from other states (something that should be a given, in light of the plain language of Art. IV § 1 of the U.S. Constitution, but is still ignored by many states).
States, as well as law enforcement (know your sheriff!) can also declare themselves “2nd Amendment sanctuaries” and refuse to enforce anti-gun laws.
IV. Judicial Action
Filing lawsuits to repeal unconstitutional laws or challenging convictions based on unconstitutional laws requires, of course, a constitutional recognition of the right to keep and bear arms. If no such constitutional protection exists in your country, you will at least need a landmark case to base your claim on, or have both a creative lawyer and a friendly court to interpret another clause in your country’s constitution (or at least a superior law) to imply such a right. However, your chances of success in such a scenario are much slimmer.
In the United States on the other hand, given the constitutional recognition of the people’s right to keep and bear arms, challenging gun control laws through the courts has proven to be a very successful strategy. The most influential recent case was New York State Rifle & Pistol Association, Inc. v. Bruen,11 in which the United States Supreme Court held that New York’s requirement for citizens to show proper cause in order to receive the authorization to carry a firearm violated “the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense.” Perhaps even more consequential, the court also clarified that the standard for whether any firearms-restriction is constitutional is whether “the regulation is consistent with the Nation’s historical tradition of firearm regulation.” In other words, for any firearms restriction to be upheld, the government must prove that such a restriction existed when the Second Amendment went into effect.
This landmark decision has since served to invalidate numerous gun-control laws that are irreconcilable with the plain language of the Second Amendment and lack a historical precedent. As a result of the Bruen decision, the chances of successfully having a gun-control law judicially overturned have substantially increased, thus making a judicial challenge worth considering.
In Tennessee, for example, a couple of adults under age 21 successfully challenged the state’s prohibition against 18-20-year-old citizens carrying firearms or obtaining carry permits. Just months before this prohibition was determined unconstitutional in Beeler v. Long,12 a legislative effort to achieve the same result had failed. Tennessee’s HB 1735 in the 112th General Assembly, which would have accomplished the same result legislatively, actually passed the House of Representatives; however, the Senate sponsor assigned the Senate companion bill, SB 2291, to the “general subcommittee of the Senate judiciary committee,” a committee that does not exist. Practically, as discussed above, this has the effect of killing a bill without even putting it to a vote. Once the U.S. Supreme Court issued the Bruen decision, the legal ground to uphold Tennessee’s prohibition was gone, and the case settled by judicially invalidating Tennessee’s unconstitutional statute.
In states with a liberty-minded attorney general (AG), requesting an AG’s opinion is another powerful tool. While the exact legal force of an AG’s opinion is subject to debate (interpretations range from persuasive authority to binding/force of law until overturned), it does carry great weight with the courts in any state, and it is generally safe for the public to rely upon until rendered obsolete (e.g., by legislative changes to the underlying law or binding legal precedent to the contrary).
Endnotes
- U.S. Department of Justice. Justice Department Launches the National Extreme Risk Protection Order Resource Center. Office of Public Affairs, March 23, 2024. https://www.justice.gov/opa/pr/justice-department-launches-national-extreme-risk-protection-order-resource-center
- https://www.capitol.tn.gov/Bills/113/Bill/HB2035.pdf
- https://www.senate.mo.gov/13info/pdf-bill/intro/SB266.pdf
- See subdivision 17(f) of https://www.revisor.mn.gov/statutes/cite/624.714
- https://le.utah.gov/xcode/Title53B/Chapter3/53B-3-S103.html?v=C53B-3-S103_2021051920210528
- https://www.legis.state.pa.us/CFDOCS/Legis/PN/Public/btCheck.cfm?txtType=HTM&sessYr=2023&sessInd=0&billBody=S&billTyp=B&billNbr=0551&pn=0612
- https://www.capitol.tn.gov/Bills/109/Bill/SB1736.pdf
- See T.C.A. § 39-17-1325.
- https://www.capitol.tn.gov/Bills/113/Bill/HB2689.pdf
- https://www.capitol.tn.gov/Bills/113/Bill/SB0908.pdf
- https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf
- https://storage.courtlistener.com/recap/gov.uscourts.tned.99561/gov.uscourts.tned.99561.41.1.pdf
