Appeals court judges in the supreme court building, center right, in Nashville will hear arguments from a commoner about the state’s long abuse of constitutional liberties. (Photo Google Earth)
A Christian man with a ministry to shut-ins and jail inmates is challenging as unconstitutional Tennessee’s racist ban on weapons ownership.
Arthur J. Hirsch, known as “The Fiddle Man of Lawrence County,” is arguing at a hearing Tuesday that the intent to go armed statute is unconstitutionally vague and unenforceable.
By David Tulis / Noogaradio 1240 AM 92.7 FM
He was convicted in December 2015 on four criminal counts, including one of violating the unlawful carrying or possession of a weapon statute.
He says that the statute is unenforceably vague and void because its fails to define which acts are forbidden and which acts are allowed. A law that does not make it clear how one is to obey it, and how one avoids disobeying it, is generally considered unconstitutionally vague in American law.
Mr. Hirsch, 65, a private businessman in the paving repair line, will be making oral arguments in his defense July 18 in Nashville, seeking to overturn the convictions by a jury in Lawrence County that also included guilty findings on his right to travel claims.
In the 20 minutes of oral arguments, he will have to tackle two major rights belonging to Americans — the right to bear arms and the right of free movement apart from state permission. Judges who interrupt with questions can easily throw off an appellant or his attorney. Mr. Hirsch has a great deal of experience in courts defending God-given common law rights.
In the free-travel part of his defense, Mr. Hirsch says he is a private person using the public right-of-way for private purposes, and not meeting the state’s definition of having entered a regulated or regulatable activity, namely transportation in a motor vehicle. He says that the state is enforcing its commercial regulations unconstitutionally against private users whose rights were not in any way abrogated by the 1937 commercial driver’s license act that created the regulation regime enforced by the Tennessee department of safety and homeland security and every sheriff’s department and city police department in the state.
Definitions are crucial to this part of his appeal, because he says all the definitions in state law regulating highway travel in fact regulates commerce and transportation, not private use.
No definitions? No law
Definitions — or the lack thereof — are a major defense also on the gun count. Mr. Hirsch says that “carry” and “intent to go armed” in the Tennessee code annotated are undefined.
Tennessee has effectively a total gun ban against the people, says John Harris, an attorney and president of the Tennessee Firearms Association. To compensate, state law puts into the hands of the citizen a series of defenses that defendants may use if they are criminally charged. These defenses were expanded most recently to include carrying a weapon in a one’s own motor vehicle.
But the citizen or visitor in Tennessee faces hazards at every turn as the defenses are qualified in the statute and difficult to know, Mr. Harris says.
This honeycombing of defenses and exceptions is not Mr. Hirsch first grievance.
His first grievance is that it is impossible to know what the word “carries” means, particularly in light of the constitutional provisions that pretendedly limit the general assembly’s statutory power against the people.
The constitution and article 1 bill of rights, section 26, says that “the citizens of this state have a right to keep and to bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime.”
The Tennessee code annotated at 39-17-1307 says a person commits an offense who carries, with the intent to go armed, a firearm or a club. The definitions elsewhere in the statute touch only on terms such as firearm, handgun, deadly, intentional. But the separate acts of wearing or carrying are not defined.
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Mr. Hirsch had a .22-caliber pistol in a cooler in the cab of his pickup truck. He was not holding, carrying or controlling the weapon when he was arrested. The statute that allowed such a practice of carrying one’s weapon in one’s car, truck or vehicle was set to go into effect days after his arrest.
“Left undefined, the word ‘carries/carry’ could have a number of possible meanings, e.g. (1) an
individual wearing an attached or holstered weapon on his person, (2) the cradling or clutching of an unattached or holstered weapon by an individual, (3) having a weapon in the general vicinity of an individual, (4) an individual toting or transporting a weapon in a closed or open container in or on a vehicle, peddle car, bicycle basket, motorcycle saddlebag, etc.
Without a statutory definition of the word ‘carries/carry’ Appellant turns to Black’s Law Dictionary *** which defines ‘carries/carry’ as ‘To have or bear upon or about one’s person, as a watch or weapon.’ The record shows that Appellant was not wearing or bearing a firearm on his person on December 10, 2013.”
The same problem exists with the phrase “intent to go armed.” The phrase “intent to go armed” “could also have various uncertain and controversial meanings, e.g., (1) intent to venture out into the public having the peace of mind and security of a weapon on one’s person for personal protection, (2) intent to go forth into the public to frighten and/or threaten people [‘affray’] for sadistic pleasure, (3) intent to go forth into the public to commit a crime with a weapon.”
What’s wrong with vague laws?
It is a miserable state of things where the law is vague and uncertain. It is a maxim of law that where the law is uncertain, there is no law. Anything to be brought to judgment must be certain or definite. Things uncertain are held for nothing.Courts have held that vague laws deprive citizens of their rights without fair process thus violating due process rights.
Jay Hirsch was convicted for having a .22 pistol like this one in a cooler in the cab of his truck, a weapon he owned for personal protection. (Photo Taurus)
The terms of a law must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to his penalties. A statue that either forbids or requires the doing of an acting terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. Laws must explicitly and definitely state what conduct is punishable.
Argues Mr. Hirsch: TCA 39-17-1307(a)(1) is “a regulatory gun control statute. It is in direct conflict with appellant’s constitutionally secured, unalienable right to keep and bear arms under the Bill of Rights (not the ‘bill of privileges!’). The Bill of Rights protects citizens from the government by making law a shield of the people rather than a weapon in the hands of the government.”
Mr. Hirsch argues before the judges that the 2nd Amendment contains “plain, unambiguous language restricting government from infringement on said right. The regulatory nature of [Tennessee law] is clearly an infringement on Appellant’s superior, non-statutory, natural right to keep and bear arms for the preservation of his life, and for the state’s protection from enemies.
Mala prohibita statutory crimes are unlawful “when in conflict with inherent, Creator-endowed, unalienable rights,” Mr. Hirsch avers.
Tennessee’s black-fearing past
The fear of freed blacks and slaves rose sharply in the South after the Nat Turner revolt in Virginia.
Tennessee’s anti-gun laws were written by the state’s Democratic establishment prior to the war to prevent Southern Independence. They were put into the statute after the 1840 Nat Turner Rebellion on a plantation in Virginia that caused more than 50 deaths. It allows sheriffs and constables and others to arbitrarily stop and seize black people who may have some means of self-defense, whether knife or club or handgun.
Many slaves in the South prior to the war had, thanks to the improving effects of Christianity, found desire and means of emancipating themselves. The percentage of freed blacks rose from 7.9% in 1790 to 13.5% in 1810. During that period in Tennessee, however the percentage of free blacks fell from 9.6% to 2.9%. In the upper South in 1860, 12.8 percent of blacks were free.
But laws aimed at restricting the freedoms of blacks before and after the war were common including laws against weapons and vagrancy. Vagrancy laws are among those that have fallen because of their unconstitutional vagueness, in which the law gives arbitrary power to the police and people are unable to reasonably know which conduct is forbidden.
The Tennessee gun law is unconstitutional, Mr. Hirsch says because one cannot know when is violating it, especially one who has guaranteed by the constitution and God-given rights to defend himself.
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