It is with a heavy heart that we, the gun-snatching media of Tennessee, must now say goodbye to the "guns in bars" law, passed last spring by the state General Assembly despite all the odds stacked against it—a gubernatorial veto, objections from statewide law-enforcement officials, smug derision from journalists, and reason itself. The law, enacted in July, is, alas, no more. It was fun while it lasted, wasn't it?
Over the summer, Nashville restaurant owners Austin Ray and Randy Rayburn, along with nine unnamed restaurant employees and four unnamed carry-permit holders, filed a lawsuit in Davidson County Chancery Court seeking to have the law struck down. And on Nov. 20, it was, pursuant to a ruling by Chancellor Claudia Bonnyman. In her opinion, Bonnyman said the law—actually an exception added to a pre-existing law banning guns in public places where alcohol is served—was "fraught with ambiguity" and therefore unconstitutional.
That will likely not be the end of the story, though, says state Sen. Doug Jackson, Democrat of Dickson and sponsor of the legislation that passed.
"I've got a few new bills drawn," Jackson says, adding that he is waiting for his expected House co-sponsor Rep. Curry Todd, Republican of Collierville, to return from a vacation, to file the new bills. That could happen as soon as this week, though.
Of course, the General Assembly will not return to session until January, and while Jackson believes it will move very quickly to get a new bill passed, he is hoping for a successful appeal from the state Attorney General's office in the meantime. The Attorney General's office has until Dec. 20 to file one, but has not, as of this writing, done so.
"I feel like, quite honestly, the court erred in its decision here," Jackson says. "This law should not have been struck down. I think the Attorney General will decide to appeal."
That's one opinion.
"I don't think the Attorney General is going to appeal because, quite frankly, this is a loser," says David Randolph Smith, attorney for the plaintiffs in the case. Smith employed a variety of arguments—that guns in alcohol-serving restaurants would create a dangerous workplace in violation of OSHA standards, that it was detrimental to business because it would lead to higher insurance and security costs for restaurant owners, or that it was, in effect, enacted in order to encourage vigilantism among permit holders—in his attempt to dismantle the legislation. The one that ultimately worked, though, was that it was simply too vague, and that permit holders themselves wouldn't know if they were in violation.
"Everybody is assumed to know the law," Smith says. "Ignorance of the law is no defense, but you can't have a law that's so vague that nobody knows whether they're violating it or not and they really have no way to control or adjust their conduct." Similar arguments have applied in First Amendment cases where legal language has been deemed too ambiguous, he says—i.e., what constitutes "obscenity" or "excessive" violence.
"You have to be pretty particular when you're making something a crime," Smith says.
What, specifically, was so vague about it? Predictably, meal service. That is to say, whether or not an establishment is primarily in the business of serving food or alcohol, and whether "you," the hypothetical permit holder, would even know if you were in a "restaurant" (where it would be okay to bring your gun) or a "bar" (where it wouldn't be).
"The definition of ‘restaurant' was it had to have a certain number of tables, a certain number of meals, it had to be open five days a week. Its primary business had to be serving meals. The problem is, there's lots of places that serve alcohol, whose primary business is serving alcohol," Smith says. "So we proved to the court that virtually all of Second Avenue, virtually all of Broadway, virtually all of Division Street, Sam's in Hillsboro Village [the owner of which testified that he didn't know whether his establishment was legally a bar or a restaurant] are often not restaurants under that definition. The Alcoholic Beverage Commission had fined a lot of places, including Tootsie's and Hollywood Disco and the Broadway Brewhouse, Mexican restaurants in Nashville, because they served more alcohol than food."
During this year's General Assembly session, the question of whether such a bill would, in effect, allow guns inside actual "bars" rather than "restaurants that serve alcohol" yielded a slew of proposed amendments to limit its reach: continued bans in 21-plus establishments, curfews on when the exception would apply. All were eventually voted out of the final passed bill, and a "restaurant carry" exception ultimately rested on the narrowest of restrictions to distinguish itself, if only nominally, from a full-blown "guns-in-bars" exception.
Here it is, from Tennessee Code—39—17—1305 (c): At least one (1) meal per day shall be served at least five (5) days a week, with the exception of holidays, vacations and periods of redecorating, and the serving of such meals shall be the principal business conducted.
And, from Bonnyman's opinion: "The court finds that TCA 39—17—1305 (c) does violate the due process rights of the plaintiffs—generally, the plaintiffs gun permit holders—because the language ‘the serving of such meals shall be the principal business conducted' cannot be known to the ordinary citizen."
Since the state doesn't make a clear distinction between "bars" and "restaurants," many alcohol-centered establishments are legally "restaurants," meaning it should be legal to bring a gun into any of them, except if they're in violation of their licensure requirements, and how is a customer to know?
That is the problem Jackson claims he's now prepared to deal with.
"What I'm going to propose the Legislature does is going to be very clear and concise," he says. "I'm not prepared to discuss the details of the new bills, how we will work within that ruling, but there are several different approaches to this."
But Smith doesn't buy it.
"There is no way he'll be able to write a law that takes this ruling into account without calling it a ‘guns in bars' law explicitly, and there's no way he can get the votes for that," Smith says.
The basic problem is that the liquor licensing laws are "effed up," says Smith.
"Tennessee came late to the table in terms of legalizing liquor by the drink," he says. (Liquor by the drink wasn't legalized in Tennessee until 1967. Knoxville didn't legalize it until 1972.) "When it went through, it wasn't intended to include bars. There aren't supposed to be bars in the state, just restaurants that serve alcohol. But, obviously there are bars in the state of Tennessee."
Jackson, for one, doesn't dispute that, but he does point to as many as 40 other states with "similar" laws.
"Look, the plaintiffs, you in the media, you tried to drum up every conceivable scenario as to what would happen when this law was passed," he says. "There were going to be bullets flying everywhere, we were going to be like the Old West. It was just like when we passed the handgun carry permit law in 1995. I would encourage you all, instead of panicking, to take a look at the experience of other states. Take a look at Florida. They've had the same law on the books for over 20 years."
Taking a look at other states is exactly what Smith has done, and he's come to the conclusion that Tennessee is the first state to pass a law expressly allowing guns in bars.
Of the 40 states with similar laws, Smith says, only 14 have laws designed to allow some type of firearm carry in restaurants that serve alcohol, and each one of those has very specific provisions to keep guns out of restaurants or parts of restaurants where the primary business is alcohol. Florida, for example, doesn't allow guns in the bar area of restaurants.
"These guys in the NRA tell you that 40 other states have the same law. That is simply bullshit," Smith says, declaring that it's one of many untruths he's come up against since he's begun this lawsuit. "The other thing they talk about is Second Amendment rights. Look, there was a Supreme Court decision last year that struck down a Washington, D.C., law that prohibited handguns for protection in your home, saying that was guaranteed by the Constitution. But that was all it extended to, the home. No one says you should be allowed to carry everywhere."