In the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United States

LEONARD EMBODY,Petitioner,

v.

ROBERT E. COOPER JR., ATTORNEY GENERALSTATE OF TENNESSEE,

Respondent.

On Petition for Writ of Certiorari to theTennessee Court of Appeals, Middle Division

PETITION FOR WRIT OF CERTIORARI

Leonard EmbodyPro Se6620 Valley Dr.Brentwood, TN 37027(615) 661-8067leonardembody@gmail.com

Pro Se Petitioner

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

NO. 13-8464

i

QUESTIONS PRESENTED

The Second Amendment to the United StatesConstitution “guarantee[s] the individual right topossess and carry weapons in case of confrontation.”District of Columbia v. Heller, 554 U.S. 570, 592 (2008).In Tennessee it is a crime to both conceal or openlycarry, in public, any type of loaded firearm including arifle, shotgun, handgun, and even antique black powderfirearms. Tenn. Code Ann. § 39-17-1307(a)(1).Tennessee law is subject to only a few exceptions, noneof which apply to appellant’s right to carry a loadedfirearm in public for the purpose of self-defense. SeeTenn. Code Ann. § 39-17-1308. Law abiding petitionerhas never been convicted of any crime, and is notprohibited by any federal or state law from possessinga firearm. Petitioner is not eligible to obtain aTennessee Handgun Carry Permit.

The questions presented are:

1. Whether the Second Amendment guarantees aright to carry a loaded firearm in public for thepurpose of self-defense and if that includes anopenly carried long arm or an openly carriedhandgun or pistol.

2. Whether the Second Amendment requires apermit or license in order to carry a loadedopenly carried firearm outside the home for thepurpose of self-defense.

3. Whether Tennessee may prohibit the bearing offirearms, outside the home for the purpose ofself-defense, by operation of an overly broadstatute, Tenn. Code Ann. § 39-17-1307(a)(1).

ii

RULE 29.6 DISCLOSURE STATEMENT

Leonard Embody is not a corporation.

iii

PARTIES TO THE PROCEEDINGS

All parties appear in the caption of the case on thecover page

1. Leonard Embody, the named plaintiff andpetitioner here. Mr. Embody for all timespertinent is an adult citizen of the United Statesof America over twenty-one years old and aresident of the State of Tennessee.

2. Robert E. Cooper Jr., the named defendant andrespondent here. Robert E. Cooper Jr. is anadult and at all times pertinent is the AttorneyGeneral of the State of Tennessee.

iv

TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

RULE 29.6 DISCLOSURE STATEMENT . . . . . . . . ii

PARTIES TO THE PROCEEDINGS . . . . . . . . . . . iii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . vi

PETITION FOR WRIT OF CERTIORARI . . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL AND STATUTORYPROVISIONS INVOLVED . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 5

REASONS FOR GRANTING THE PETITION . . . . 6

1. The State Courts stand divided on theguarantee provided by the UnitedStates Constitution Amendment Two andFourteen. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

2. Tennessee Court of Appeals and other StateCourts have incorrectly decided importantquestions of law in contradiction to previousrulings of this Court. . . . . . . . . . . . . . . . . . . 10

3. The Extreme Prohibition By the State ofTennessee Presents The Best Case to Clarifythe Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

v

APPENDIX

Appendix A Opinion, Tennessee Court of Appeals(May 22, 2013) . . . . . . . . . . . . . . . App. 1

Appendix B Opinion, Davidson County Tenn.Chancery Court (July 23, 2012) . . . . . . . . . . . . . . App. 20

Appendix C Order, Tennessee Supreme Courtdenying writ of cert.(Oct. 31, 2013) . . . . . . . . . . . . . . App. 46

Appendix D Final Order of Administrative judgeon petitioner’s suspended Tennesseehandgun carry permit, case numberG4505N(Sept. 16, 2010) . . . . . . . . . . . . App. 47

vi

TABLE OF CITED AUTHORITIES

CASES PAGE

Federal Cases

District of Columbia v. Heller, 554 U.S. 570 (2008) . . . . . . . . . . . . . . . . . . passim

McDonald v. City of Chicago, 130 S. Ct. 3020 (2010) . . . . . . . . . . . . . . . . passim

Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012) . . . . . . . . . . . . . . . . 6

State Cases

Andrews v. State, 50 Tenn. 165 (1871) . . . . . . . . . . . . . . . . . . . . 9, 12

Embody v. Cooper, 2013 WL 2295671 (Tenn. Ct. App. May 22, 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Commonwealth v. Gouse, 461 Mass. 787, 965 N.E.2d 774 (2012) . . . . . . . . 8

Glasscock v. City of Chattanooga, 11 S.W. 2d. 678 (Tenn. 1928) . . . . . . . . . . . . . . . . 9

Hertz v. Bennett, 294 Ga. 62, 751 S.E.2d 90 (2013) . . . . . . . . . . . . 8

In re Brickey, 8 Idaho 597, 70 P. 609 (1902) . . . . . . . . . . . . . . . 8

Kendall v. State, 101 S.W. 189 (Tenn.1906) . . . . . . . . . . . . . . . . . 11

vii

Little v. United States, 989 A.2d 1096 (D.C. 2010) . . . . . . . . . . . . . . . . . . 9

Mack v. United States, 6 A.3d 1224 (D.C. 2010) . . . . . . . . . . . . . . . . . . . . 8

Nunn v. State, 1 Ga. 243 (1846) . . . . . . . . . . . . . . . . . . . . . . . 9, 10

People v. Aguilar, 2013 IL 112116 . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

State v. Christian, 354 Ore. 22, 307 P.3d 429 (2013) . . . . . . . . . . . . 8

State v. Reid, 1 Ala. 612 (1840) . . . . . . . . . . . . . . . . . . . . . . . . 10

Williams v. State, 417 Md. 479, 10 A.3d 1167 (2011) . . . . . . . . . . . . 8

Wooden v. United States, 6 A.3d 833 (D.C. 2010) . . . . . . . . . . . . . . . . . . . . . 8

STATUTES AND RULES

Federal

28 U.S.C. § 1257(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 2403(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 1

U.S. Const. Amend. 2 . . . . . . . . . . . . . . . . . . . passim

U.S. Const. Amend. 14, Section 1 . . . . . . . . . . . . . 2, 5

State

720 Illinois Compiled statutes S 5/24-1.6(a)(1),(a)(3)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

viii

Tenn. Const. Art 1 section 26 . . . . . . . . . . . . . . . . . . 2

Tenn. Code Ann. § 39-17-1307 . . . . . . . . . . . . passim

Tenn. Code Ann. § 39-17-1308 . . . . . . . . . . . . . . . i, 3

OTHER REFERENCE

Tennessee Attorney General Opinion 04-020,February 9, 2004 . . . . . . . . . . . . . . . . . . . . . . . . . 9

1

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorariissue to review the judgment below.

OPINIONS BELOW

1. The opinion of the Tennessee Court of Appeals inthe case of Leonard Embody v. Robert E. Cooper Jr.dated May 22, 2013, appeal number M2012-01830-COA-R3-CV. The case is reported at 2013 WL2295671 and is reprinted in the Appendix A, App. 1-19.

2. The Tennessee Davidson County Chancery Court’sopinion in the case of Leonard Embody v. Robert E.Cooper Jr. dated July 23, 2012 case number 10-1227-IV is unpublished and is reprinted atAppendix B, App. 20-45.

JURISDICTION

The State of Tennessee Court of Appeals decided mycase on May 22, 2013. A copy of that decision appearsat Appendix A, App. 1-20. Timely petition for certiorariwas made to the Tennessee State Supreme Court andcertiorari denied on October 31, 2013. A copy of thatdenial may be found at Appendix C, App. 46. Thispetition for writ of certiorari is timely and The UnitedStates Supreme Court has jurisdiction under 28 U.S.C.§ 1257(a). The Attorney General of the State ofTennessee is a party to this suit and 28 U.S.C.§ 2403(b) does not apply.

2

CONSTITUTIONAL AND STATUTORYPROVISIONS INVOLVED

Second Amendment to the United StatesConstitution, Right to Bear Arms.

“A well-regulated Militia, being necessary to thesecurity of a free State, the right of the people to keepand bear Arms, shall not be infringed.”

Fourteenth Amendment to the United StatesConstitution, Section 1.

“All persons born or naturalized in the UnitedStates, and subject to the jurisdiction thereof,are citizens of the United States and of the statewherein they reside. No state shall make orenforce any law which shall abridge theprivileges or immunities of citizens of the UnitedStates; nor shall any state deprive any person oflife, liberty, or property, without due process oflaw; nor deny to any person within itsjurisdiction the equal protection of the laws.”

Tennessee Constitution Article One Section 26

“That the citizens of this state have a right to keepand to bear arms for their common defense; but theLegislature shall have power, by law, to regulate thewearing of arms with a view to prevent crime.”

Tennessee Code Annotated § 39-17-1307 Unlawfulcarrying or possession of a weapon.

(a)(1) A person commits an offense who carrieswith the intent to go armed a firearm, a knifewith a blade length exceeding four inches (4”), ora club.

3

(2)(A) The first violation of subdivision (a)(1)is a Class C misdemeanor, and, in addition topossible imprisonment as provided by law, maybe punished by a fine not to exceed five hundreddollars ($500).

(B) A second or subsequent violation ofsubdivision (a)(1) is a Class B misdemeanor.

(C) A violation of subdivision (a)(1) is a ClassA misdemeanor if the person’s carrying of ahandgun occurred at a place open to the publicwhere one (1) or more persons were present.

Tennessee Code Annotated § 39-17-1308 Defensesto unlawful possession or carrying of a weapon.

(a) It is a defense to the application of § 39-17-1307 if the possession or carrying was:

(1) Of an unloaded rifle, shotgun or handgunnot concealed on or about the person and theammunition for the weapon was not in theimmediate vicinity of the person or weapon;

(2) By a person authorized to possess orcarry a firearm pursuant to § 39-17-1315 or § 39-17-1351;

(3) At the person’s:

(A) Place of residence;

(B) Place of business; or

(C) Premises;

4

(4) Incident to lawful hunting, trapping,fishing, camping, sport shooting or other lawfulactivity;

(5) By a person possessing a rifle or shotgunwhile engaged in the lawful protection oflivestock from predatory animals;

(6) By a Tennessee valley authority officerwho holds a valid commission from thecommissioner of safety pursuant to this partwhile the officer is in the performance of theofficer’s official duties;

(7) By a state, county or municipal judge orany federal judge or any federal or countymagistrate;

* * *

(10) By any out-of-state, full-time,commissioned law enforcement officer who holdsa valid commission card from the appropriateout-of-state law enforcement agency and a photoidentification; provided, that if no validcommission card and photo identification areretained, then it shall be unlawful for thatofficer to carry firearms in this state and theprovisions of this section shall not apply. Thedefense provided by this subdivision (a)(10) shallonly be applicable if the state where the out-of-state officer is employed has entered into areciprocity agreement with this state that allowsa full-time, commissioned law enforcementofficer in Tennessee to lawfully carry or possessa weapon in the other state.

5

STATEMENT OF THE CASE

This is a civil case arising from the question ofpetitioner’s right to bear loaded firearms outside thehome in public. The constitutional issues were raisedin the court of the first instance and have continued ineach court where review has been sought. Petitionerargued that as applied to him, a law abiding person,not prohibited from possessing firearms by any State orFederal law, he could not be prohibited from bearingarms outside the home. Therefore, Tennessee CodeAnnotated § 39-17-1307(a)(1) should be declaredunconstitutional. This is due to the operation of theSecond and Fourteenth Amendments to the UnitedStates Constitution which would prohibit such a ban.Petitioner argued that Tennessee law prohibiting himfrom bearing loaded firearms outside the home wasfacially unconstitutional and overly broad. Petitionersought to have Tennessee Code Annotated § 39-17-1307(a)(1) declared unconstitutional because it is thatstatute which prohibits him from bearing loadedfirearms for the purpose of self-defense outside thehome. Tennessee case law has long held that “intent togo armed” is the carry of a firearm for purposesoffensive or defensive. The Tennessee Supreme Courtdenied certiorari App. C, App.46. The Chancery Court,App. B, App. 20-45 and Court of Appeals, App. A,App.1-19 agreed that there exists no right to bear armsoutside the home. “We believe this right of citizens touse arms in defense of hearth and home to be the coreSecond Amendment right under Heller and McDonald.[The challenged statute] is not a prohibition on thepossession on firearms in the home” and therefore “iswithin the constitutionally permissible realm offirearm regulations available to the state, and it

6

violates neither the state nor federal constitution.”Embody v. Cooper, 2013 WL 2295671, *7-*8 (Tenn. Ct.App. May 22, 2013).

REASONS FOR GRANTING THE PETITION

1. The State Courts stand divided on theguarantee provided by the United StatesConstitution Amendment Two and Fourteen.

The Amendment provides that to bear arms outsidethe home is a fundamental right of the people. Recentlyin Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012), theSeventh Circuit Court of Appeals said that Chicago’sban on the carry of guns outside the home violated theSecond Amendment Rights in that circuit. “TheSupreme Court has decided that the amendmentconfers a right to bear arms for self-defense, which isas important outside the home as inside.” Id. at 942.“To confine the right to be armed to the home is todivorce the Second Amendment from the right of self-defense described in Heller and McDonald.” Id. at 937.

Shortly after the decision in Moore, the IllinoisState Supreme Court followed suit and unanimouslydeclared that an Illinois State law, similar in nature toTennessee Code Annotated § 39-17-1307(a)(1), violatedthe guarantee of the Second Amendment to the UnitedStates Constitution. “[I]if Heller means what it says,and individual self-defense is indeed the centralcomponent of the second amendment right to keep andbear arms, then it would make little sense to restrictthat right to the home, as confrontations are notlimited to the home.” People v. Aguilar, 2013 IL112116, ¶ 20 (quotations and alteration omitted).Carrying a handgun in public for self defense is “a

7

personal right that is specifically named in andguaranteed by the United States Constitution, asconstrued by the United States Supreme Court.” Id.¶ 21.

The Illinois State law struck down unanimously bythe Illinois Supreme Court provides:

“(a) A person commits the offense of aggrevatedunlawful use of a weapon when he or sheknowingly:

(1) Carries on or about his or her personexcept when on his or her land or inhis or her abode or fixed place ofbusiness any pistol, revolver, stun gunor taser or other firearm; [and]

* * *

(3) One of the following factors is present:

(A) The firearm possessed wasu n c a s e d , l o a d e d a n dimmediately accessible at thetime of the offense[.]” 720 ILCS5/24-1.6(a)(1), (a)(3)(A)(West2008).

That law is near identical to Tennessee Lawchallenged by petitioner to be unconstitutional:

“(a)(1) A person commits an offense who carrieswith the intent to go armed a firearm, a knifewith a blade length exceeding four inches (4”), ora club.” Tenn. Code Ann. § 39-17-1307(a)(1).

8

The Supreme Court of Idaho struck down a lawprohibiting the carrying of guns in urban areas. In reBrickey, 8 Idaho 597, 70 P. 609 (1902). Oregon’sSupreme Court “read[s] [Heller] as recognizing a rightto self-defense outside the home to a degree yet to bedetermined by the Court.” State v. Christian, 354 Ore.22, 44 n.11, 307 P.3d 429, 443 n.11 (2013). AndGeorgia’s Supreme Court applied intermediate scrutinyto assess the constitutionality of laws regulating thecarrying of guns outside the home. Hertz v. Bennett,294 Ga. 62, 65-66, 751 S.E.2d 90, 94 (2013); id. at 70,751 S.E.2d at 96 (“the Court today . . . acknowledgesthat the constitutional guarantees secure a right tocarry firearms in public places”) (Blackwell, J.,concurring).

The Tennessee Courts agree with Massachusetts’Supreme Judicial Court holds that carrying a gunoutside one’s home “does not implicate” the SecondAmendment. Commonwealth v. Gouse, 461 Mass. 787,802, 965 N.E.2d 774, 786 (2012). Maryland’s high courthas refused to consider whether the SecondAmendment secures the right to carry handguns inpublic for self-defense. “If the Supreme Court . . .meant its holding [in Heller and McDonald] to extendbeyond home possession, it will need to say so moreplainly.” Williams v. State, 417 Md. 479, 496, 10 A.3d1167, 1177 (2011). The District of Columbia Court ofAppeals has three times rejected that SecondAmendment rights extend outside the home into thepublic. See Mack v. United States, 6 A.3d 1224, 1236(D.C. 2010) (“Heller did not endorse a right to carryweapons outside the home”); Wooden v. United States,6 A.3d 833, 841 (D.C. 2010) (“Neither self-defense assuch, nor even self-defense in the home of another

9

(with a weapon carried there), is entitled to suchprotection, as we have read Heller”); Little v. UnitedStates, 989 A.2d 1096, 1101 (D.C. 2010) (“appellant wasoutside of the bounds identified in Heller, i.e., thepossession of a firearm in one’s private residence forself-defense purposes”).

Historically Tennessee guaranteed people in itsjurisdiction the right to bear long arms, such asshotguns, rifles, and the army or navy pistols carriedopenly in the hand. This was because in the 1871 caseof Andrew v. State the Tennessee Supreme Court heldthat the State through legislation may not prohibit thebearing of loaded firearms outside the home. See 50Tenn. 165 (1871). In the 1929 case of Glasscock v.Chattanooga the Tennessee Supreme Court again heldthat the bearing of arms, specifically the army or navypistol carried openly in the hand, outside the homecould not be prohibited by the City of Chattanooga. See11 S.W. 2d. 678 (Tenn. 1928).

The United States Supreme Court in Heller v D.C.mentioned the Tennessee Supreme Court case, “InAndrews v. State, the Tennessee Supreme Courtlikewise held that a statute that forbade openlycarrying a pistol “publicly or privately, without regardto time or place, or circumstances,” 50 Tenn., at 187,violated the state constitutional provision (which thecourt equated with the Second Amendment). That wasso even though the statute did not restrict the carryingof long guns. Ibid.” 554 U.S. 570 (2008). This Court alsospoke of other laws which were severe restrictions onthe right and as such were struck down. “In Nunn v.State, the Georgia Supreme Court struck down aprohibition on carrying pistols openly (even though it

10

upheld a prohibition on carrying concealed weapons).”See 1 Ga., at 251. In State v. Reid, 1 Ala. 612, 616–617(1840) this court said, “A statute which, under thepretence of regulating, amounts to a destruction of theright, or which requires arms to be so borne as torender them wholly useless for the purpose of defence,would be clearly unconstitutional.”Ibid.

2. Tennessee Court of Appeals and other StateCourts have incorrectly decided importantquestions of law in contradiction to previousrulings of this Court.

Two landmark cases have been heard in recentyears by this Court. These cases provided direction tothe States and federal courts, but the ideas central tothese cases have been misunderstood. This Court mustclear up any confusion as to what it meant in Hellerand McDonald or the fundamental rights of the peoplewill be ruled away.

To “bear arms,” as used in the Second Amendment,is to “wear, bear, or carry . . . upon the person or in theclothing or in a pocket, for the purpose . . . of beingarmed and ready for offensive or defensive action in acase of conflict with another person.” District ofColumbia v. Heller, 554 U.S. 584 (2008) (quotationomitted). “It is clear . . . that ‘bear arms’ did not referonly to carrying a weapon in an organized militaryunit.” Id. at 585.

The Second Amendment’s “core lawful purpose [is]selfdefense,” Heller, 554 U.S. at 630. Courts haveconsistently labeled that the “core” of the right is solelyin the home. Any carry outside the home is often notprotected by the “core right” and subjected to

11

intermediate scrutiny. This Court was clear that“Individual selfdefense . . . was the central componentof the right itself,” id. at 599 and “the inherent right ofselfdefense has been central to the Second Amendmentright.” Id. at 628.

Many State Courts seem to have troubleinterpreting the plain meaning of Heller andMcDonald. If the United States Supreme Court meanswhat it has clarified in the last six years, with regardto the Second Amendment and its application to theStates, then it should do so in a clearer manner so thatState Courts will understand.

3. The Extreme Prohibition By the State ofTennessee Presents The Best Case to Clarifythe Law.

Petitioner is a law abiding, responsible, law-abidingcitizen, who questions only if the carry of a loadedfirearm outside the home in public is a fundamentalright. This is a narrow case because it focuses only onthe bearing of loaded arms outside the home.Specifically petitioner asked in his first amendedcomplaint to be allowed to carry a loaded firearm innon sensitive public areas. Tennessee Statute prohibitspetitioner from bearing any loaded firearm outside thehome for the purpose of self-defense. Tenn. Code Ann.§ 39-17-1307(a)(1). The Tennessee prohibition extendsfrom handguns to long arms and every firearm inbetween, the carrying of a firearm is prohibited whenit is carried in a manner so as to be “readily accessibleand available for use in the carrying out of purposeseither offensive or defensive.” Kendall v. State, 101S.W. 189 (Tenn. 1906). The Tennessee State Attorneyin 2004 raised the point that the Legislature may not

12

enact a blanket prohibition on the carry of arms, “TheTennessee Supreme Court has recognized that theGeneral Assembly has the authority, under this sectionof the Constitution, to enact legislation to regulate thewearing and carrying of arms in public. Any suchenactment, however, “must be guided by, andrestrained to this end, and bear some well definedrelation to the prevention of crime, or else it isunauthorized by this clause of the Constitution.”Andrews v. State, 50 Tenn. 165, 181 (1871).” TennesseeAttorney General Opinion 04-020, February 9, 2004.The prohibition includes concealed firearms andfirearms which may be carried in open view of thepublic.

Law abiding petitioner is permanently denied aTennessee handgun carry permit and is not seeking apermit to carry a firearm outside the home because apermit or license was not historically required whenthe Second Amendment was accepted. Liz Hale,attorney for the State of Tennessee stated inpermanently denying petitioners handgun carrypermit, “[T]here was no provision in the relevantstatute that would permit him to re-file this matter ata later date” in referring to the possibility of obtaininga handgun carry permit. Appendix D, App. 47-48.Tennessee has clearly placed itself in a position wherea permit to carry a handgun is a privilege and not aright. Petitioner is not demanding a permit or licensebe issued to carry a loaded firearm, so this case doesnot involve any difficult questions regarding regulatoryschemes which govern the issuance of licenses orpermits to carry concealed firearms. Other cases beforethis court, and denied certiorari, have asked thatpermits be issued to carry concealed firearms, when

13

other avenues of carrying a firearm were available. Inthis present case no other option to carry outside thehome for the purpose of self-defense exists forpetitioner.

It is expedient that this Court resolve the issue ofcarrying loaded firearms outside the home for thepurpose of self-defense. Historically the right to beararms was understood by the people to openly bearunconcealed long arms and other firearms includingpistols. Strict scrutiny need apply to the act of bearingloaded firearms outside the home for the purpose ofself-defense while in non-sensitive areas.

CONCLUSION

The petition for a writ of certiorari should begranted, or in the alternative the case should beremanded to the Tennessee State Court for judgmentin favor of petitioner.

Respectfully submitted,

Leonard EmbodyPro Se6620 Valley Dr.Brentwood, TN 37027(615) 661-8067leonardembody@gmail.com

Date: March 24, 2014

APPENDIX

i

APPENDIX

TABLE OF CONTENTS

Appendix A Opinion, Tennessee Court of Appeals(May 22, 2013) . . . . . . . . . . . . . . . App. 1

Appendix B Opinion, Davidson County Tenn.Chancery Court (July 23, 2012) . . . . . . . . . . . . . . App. 20

Appendix C Order, Tennessee Supreme Courtdenying writ of cert.(Oct. 31, 2013) . . . . . . . . . . . . . . App. 46

Appendix D Final Order of Administrative judgeon petitioner’s suspended Tennesseehandgun carry permit, case numberG4505N(Sept. 16, 2010) . . . . . . . . . . . . App. 47

App. 1

APPENDIX A

IN THE COURT OF APPEALS OF TENNESSEEAT NASHVILLE

March 12, 2013 Session

No. M2012-01830-COA-R3-CV

[Filed May 22, 2013]__________________________LEONARD EMBODY )

)v. )

)ROBERT E. COOPER, JR. )__________________________ )

Appeal from the Chancery Court for DavidsonCounty No. 101227-IV

Russell T. Perkins, Chancellor

This appeal arises from a challenge to theconstitutionality of Tenn. Code Ann. § 39-17-1307(a)(1),a law restricting the carrying of firearms in Tennessee.Leonard Embody (“Embody”) challenged the validity ofTenn. Code Ann. § 39-17-1307(a)(1)1 in a case filedagainst Attorney General and Reporter Robert E.Cooper, Jr. (“Respondent”) in the Chancery Court for

1 Tenn. Code Ann. § 39-17-1307(a)(1) (Supp. 2012) provides: “Aperson commits an offense who carries with the intent to go armeda firearm, a knife with a blade length exceeding four inches (4”), ora club.”

App. 2

Davidson County (“the Trial Court”) on grounds thatthe law violates the Second Amendment to the UnitedStates Constitution and Tenn. Const. Art. I, § 26. TheTrial Court upheld the law as constitutional. Embodyfiled an appeal to this Court. We hold that Tenn. CodeAnn. § 39-17-1307(a)(1) is a valid regulation of thecarrying of firearms that does not contravene either theSecond Amendment or Tenn. Const. Art. I, § 26. Weaffirm the judgment of the Trial Court.

Tenn. R. App. P. 3 Appeal as of Right; Judgmentof the Chancery Court Affirmed; Case

Remanded

D. MICHAEL SWINEY, J., delivered the opinion of theCourt, in which JOHN W. MCCLARTY and THOMAS R.FRIERSON, II, JJ., joined.

Leonard Embody, pro se appellant.

Robert E. Cooper, Jr., Attorney General and Reporter;William E. Young, Solicitor General; Benjamin A.Whitehouse, Assistant Attorney General; for theappellee, Robert E. Cooper, Jr.

OPINION

Background

The relevant factual background of this case is bothbrief and largely agreed upon by the parties. In March2010, the Tennessee Department of Safety suspendedEmbody’s handgun carry permit on the basis that hiscontinued possession of the permit posed a materiallikelihood of risk of harm to the public. This actionstemmed from a complaint from the Belle Meade PoliceDepartment alleging that Embody carried a firearm in

App. 3

public in an unsafe manner. Embody disputed thischaracterization of his actions, and thereafterrequested an administrative hearing to challenge thesuspension of his permit. In May 2010, Embody filedsuit in the Chancery Court for Williamson County,challenging the administrative suspension of hishandgun carry permit and seeking declaratoryjudgment that Tenn. Code Ann. § 39-17-1351, the lawgoverning the issue of handgun carry permits, isunconstitutional. By agreement, the case later wastransferred to the Trial Court.

In September 2010, Embody withdrew hisadministrative appeal of the suspension of his handguncarry permit. Embody also filed an amended complaintwherein he withdrew his challenge to theadministrative suspension, and added a facialchallenge to the constitutionality of Tenn. Code Ann.§ 39-17-1307. In November 2010, Respondent filed amotion to dismiss Embody’s suit for failure to state aclaim upon which relief can be granted. The TrialCourt granted Respondent’s motion to dismiss inJanuary 2011. Embody then filed a motion to alter oramend. The Trial Court, deeming Embody’s motion as“respectful” and “well-crafted,” vacated the dismissaland directed the parties to engage in discovery and filecross motions for summary judgment. In June 2011,the parties filed motions for summary judgment. InJuly 2012, the Trial Court entered a thorough anddetailed order granting Respondent’s motion forsummary judgment. The Trial Court held, inter alia:1) carrying firearms in public does not fall within thecore Second Amendment right as articulated by theU.S. Supreme Court in recent landmark cases; the lawsurvives a facial challenge; 2) the law withstands

App. 4

intermediate scrutiny, as the law represents areasonable fit with the State’s goal of preventing crime;and, 3) Embody’s overbreadth and due processarguments are meritless. Embody filed a timely appealto his Court.

Discussion

Though not stated exactly as such, Embody raisesone issue on appeal: whether the Trial Court erred inupholding the constitutionality of Tenn. Code Ann.§ 39-17-1307(a)(1), a law restricting the carrying offirearms in Tennessee. Embody has argued variouslythat his challenge to Tenn. Code Ann. § 39-17-1307(a)(1) is a facial challenge, an as applied challenge, ora challenge based on overbreadth. In any event, thiscase was decided on a motion for summary judgment.

Our Supreme Court reiterated the standard ofreview in summary judgment cases as follows:

The scope of review of a grant of summaryjudgment is well established. Because ourinquiry involves a question of law, nopresumption of correctness attaches to thejudgment, and our task is to review the record todetermine whether the requirements of Rule 56of the Tennessee Rules of Civil Procedure havebeen satisfied. Hunter v. Brown, 955 S.W.2d 49,50-51 (Tenn. 1997); Cowden v. SovranBank/Cent. S., 816 S.W.2d 741, 744 (Tenn.1991).

A summary judgment may be granted onlywhen there is no genuine issue of material factand the moving party is entitled to judgment asa matter of law. Tenn. R. Civ. P. 56.04; Byrd v.

App. 5

Hall, 847 S.W.2d 208, 214 (Tenn. 1993). Theparty seeking the summary judgment has theultimate burden of persuasion “that there are nodisputed, material facts creating a genuine issuefor trial . . . and that he is entitled to judgmentas a matter of law.” Id. at 215. If that motion isproperly supported, the burden to establish agenuine issue of material fact shifts to the non-moving party. In order to shift the burden, themovant must either affirmatively negate anessential element of the nonmovant’s claim ordemonstrate that the nonmoving party cannotestablish an essential element of his case. Id. at215 n.5; Hannan v. Alltel Publ’g Co., 270 S.W.3d1, 8-9 (Tenn. 2008). “[C]onclusory assertion[s]”are not sufficient to shift the burden to the non-moving party. Byrd, 847 S.W.2d at 215; see alsoBlanchard v. Kellum, 975 S.W.2d 522, 525(Tenn. 1998). Our state does not apply thefederal standard for summary judgment. Thestandard established in McCarley v. WestQuality Food Service, 960 S.W.2d 585, 588(Tenn. 1998), sets out, in the words of oneauthority, “a reasonable, predictable summaryjudgment jurisprudence for our state.” Judy M.Cornett, The Legacy of Byrd v. Hall: GossipingAbout Summary Judgment in Tennessee, 69Tenn. L. Rev. 175, 220 (2001).

Courts must view the evidence and allreasonable inferences therefrom in the lightmost favorable to the non-moving party.Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn.1997). A grant of summary judgment isappropriate only when the facts and the

App. 6

reasonable inferences from those facts wouldpermit a reasonable person to reach only oneconclusion. Staples v. CBL & Assocs., Inc., 15S.W.3d 83, 89 (Tenn. 2000). In making thatassessment, this Court must discard allcountervailing evidence. Byrd, 847 S.W.2d at210-11.

Recently, this Court confirmed these principles inHannan.

Giggers v. Memphis Housing Authority, 277 S.W.3d359, 363-64 (Tenn. 2009).

To review, Tenn. Code Ann. § 39-17-1307 (a)(1)(Supp. 2012) provides: “A person commits an offensewho carries with the intent to go armed a firearm, aknife with a blade length exceeding four inches (4”), ora club.” Violation of this section is a misdemeanoroffense, with a first violation punishable byimprisonment or a fine not to exceed $500. Tenn. CodeAnn. § 39-17-1307 (a)(2) (A) - (C) (2010).

Our analysis of this issue must begin “with thepresumption which the law attaches and which wecannot ignore that the acts of the General Assemblyare constitutional.” Vogel v. Wells Fargo GuardServices, 937 S.W.2d 856, 858 (Tenn. 1996) . Therefore,we begin our analysis with the presumption that Tenn.Code Ann. § 39-17-1307(a)(1) is constitutional.Additionally, “we must indulge every presumption andresolve every doubt in favor of constitutionality.” Id.

Insofar as Embody asserts a facial challenge toTenn. Code Ann. § 39-17-1307(a)(1), he faces a steepburden. The United States Supreme Court has statedthat success in a facial challenge requires a showing

App. 7

that the law in question if invalid under allcircumstances. United States v. Salerno, 481 U.S. 739,745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). OurSupreme Court has stated that when bringing a facialchallenge to the validity of a statute, “the challengermust establish that no set of circumstances existsunder which the statute, as written, would be valid.”Waters v. Farr, 291 S.W.3d 873, 882 (Tenn. 2009). Thecrux of Embody’s argument is that, as a law-abidingcitizen, the legislature may not constitutionally barhim from carrying loaded firearms in public. Toproperly address Embody’s challenge to Tenn. CodeAnn. § 39-17-1307 (a)(1), we look to some of the majorcases in state and federal jurisprudence concerning theright to keep and bear arms.

The Second Amendment to the United StatesConstitution reads as follows: “A well regulated Militia,being necessary to the security of a free State, the rightof the people to keep and bear Arms, shall not beinfringed.” U.S. Const. Amend. II. The State ofTennessee has its own analogue to the SecondAmendment, which provides: “That the citizens of thisState have a right to keep and to bear arms for theircommon defense; but the Legislature shall have power,by law, to regulate the wearing of arms with a view toprevent crime.” Tenn. Const. Art. I, § 26. As Art. I, § 26clearly provides, our Legislature has the power “toregulate the wearing of arms with a view to preventcrime.”

In Aymette v. State, 21 Tenn. 154, 1840 WL 1554(1840), the Tennessee Supreme Court considered thevalidity of a statute that banned the open or concealedcarry of certain weapons, such as Bowie knives. The

App. 8

appellant apparently had gone about in publicbrandishing a Bowie knife. Id. at *1. As perceived bythe court, the appellant’s argument was thatTennessee’s constitution at the time guaranteed himthe right to “arm himself in any manner he may choose. . . and, thus armed, to appear wherever he may thinkproper . . . and that any law regulating his socialconduct, by restraining the use of any weapon orregulating the manner in which it shall be carried, isbeyond the legislative competency to enact, and isvoid.” Id. After a discussion about the right to keep andbear arms in the context of common defense, theAymette court stated:

The Legislature, therefore, have a right toprohibit the wearing or keeping weaponsdangerous to the peace and safety of thecitizens, and which are not usual in civilizedwarfare, or would not contribute to the commondefence. The right to keep and bear arms for thecommon defence is a great political right. Itrespects the citizens, on the one hand, and therulers on the other. And, although this rightmust be inviolably preserved, yet it does notfollow that the Legislature is prohibitedaltogether from passing laws regulating themanner in which these arms may be employed.

Aymette, 1840 WL 1554, at *4.

Several decades later, in 1871, in Andrews v. State,50 Tenn. 165, 1871 WL 3579, at *3 (1871), theTennessee Supreme Court addressed theconstitutionality of a law which forbade “any person topublicly or privately carry a dirk, swordcane, Spanish

App. 9

stiletto, belt or pocket pistol or revolver.”2 TheAndrews court, in finding an individual right to keeparms, stated: “Bearing arms for the common defensemay well be held to be a political right . . . intended tobe guaranteed; but the right to keep them, with all thatis implied fairly as an incident to this right, is a privateindividual right . . . . ” Id. at *8. The court specifiedthat the arms subject to protection from prohibitionwere “the rifle of all descriptions, the shot gun, themusket, and repeater, are such arms; and that underthe Constitution the right to keep such arms, can notbe infringed or forbidden by the Legislature.” Id. at *7.However, these weapons could be regulated. Id.Ultimately, the court upheld the statute in question,save for its provision regarding pistols.3 Id. at *11. Thecourt elaborated:

And we add, that this right to keep arms,though one secured by the Constitution, withsuch incidents as we have indicated in thisopinion, yet it is no more above regulation forthe general good than any other right. The rightto hold property is secured by the Constitution,and no man can be deprived of his property “butby the judgment of his peers, or the law of theland.” If the citizen is possessed of a horse,under the Constitution it is protected and his

2 The Tennessee Constitution of 1870, our present Constitution,was operative in Andrews.

3 The Andrews court stated that it was “a matter to be settled byevidence” whether a pistol as described in the statute was amilitary weapon, thus shielding it from prohibition. Andrews, 1871WL 3579, at *11.

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right guaranteed, but he could not, by virtue ofthis guaranteed title, claim that he had the rightto take his horse into a church to thedisturbance of the people; nor into a publicassemblage in the streets of a town or city, if theLegislature chose to prohibit the latter andmake it a high misdemeanor.

The principle on which all right to regulatethe use in public of these articles of property, is,that no man can so use his own as to violate therights of others, or of the community of which heis a member.

So we may say, with reference to such arms,as we have held, he may keep and use in theordinary mode known to the country, no law canpunish him for so doing, while he uses sucharms at home or on his own premises; he may dowith his own as he will, while doing no wrong toothers. Yet, when he carries his property abroad,goes among the people in public assemblageswhere others are to be affected by his conduct,then he brings himself within the pale of publicregulation, and must submit to such restrictionon the mode of using or carrying his property asthe people through their Legislature, shall seefit to impose for the general good.

Andrews, 1871 WL 3579, at *10. Aymette and Andrews,while rather old cases, nevertheless remain instructiveon the right to keep and bear arms in Tennessee, withboth acknowledging the right of the Legislature toimpose certain regulations on the wearrg of firearms.As already discussed, it is Tenn. Const. Art. I, § 26 thatboth acknowledges the right to keep and bear arms and

App. 11

gives our Legislature the power “to regulate thewearing of arms. . . . ” Our Legislature in enactingTenn. Code Ann. § 39-17-1307 (a)(1) did nothing morethan attempt “to regulate the wearing of arms” aspermitted by Tenn. Const. Art. I, § 26.

In the modern era, recent landmark U.S. SupremeCourt cases have added to what historically had beena relative dearth of Second Amendment jurisprudence.In the landmark case of District of Columbia v. Heller,554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008),the U.S. Supreme Court, in striking down aWashington, D.C. law that effectively bannedpossession of handguns even in the home, held for thefirst time that the Second Amendment to the UnitedStates Constitution protects an individual’s right tokeep and bear arms:

There seems to us no doubt, on the basis ofboth text and history, that the SecondAmendment conferred an individual right tokeep and bear arms. Of course the right was notunlimited, just as the First Amendment’s rightof free speech was not, see, e.g., United States v.Williams, 553 U.S. 285, 128 S.Ct. 1830, 170L.Ed.2d 650 (2008). Thus, we do not read theSecond Amendment to protect the right ofcitizens to carry arms for any sort ofconfrontation, just as we do not read the FirstAmendment to protect the right of citizens tospeak for any purpose.

Heller, 554 U.S. at 595, 128 S.Ct. 2783 (emphasis inoriginal). With regard to permissible regulations inlight of this individual right to keep and bear arms, thecourt stated:

App. 12

Like most rights, the right secured by theSecond Amendment is not unlimited. FromBlackstone through the 19th-century cases,commentators and courts routinely explainedthat the right was not a right to keep and carryany weapon whatsoever in any mannerwhatsoever and for whatever purpose. See, e.g.,Sheldon, in 5 Blume 346; Rawle 123; Pomeroy152-153; Abbott 333. For example, the majorityof the 19th-century courts to consider thequestion held that prohibitions on carryingconcealed weapons were lawful under theSecond Amendment or state analogues. See, e.g.,State v. Chandler, 5 La. Ann., at 489- 490; Nunnv. State, 1 Ga., at 251; see generally 2 Kent*340, n. 2; The American Students’ Blackstone84, n. 11 (G. Chase ed. 1884). Although we donot undertake an exhaustive historical analysistoday of the full scope of the SecondAmendment, nothing in our opinion should betaken to cast doubt on longstanding prohibitionson the possession of firearms by felons and thementally ill, or laws forbidding the carrying offirearms in sensitive places such as schools andgovernment buildings, or laws imposingconditions and qualifications on the commercialsale of arms.

Id. at 626-27, 128 S.Ct. 2783. The court wrote of whatit termed “the right of law-abiding, responsible citizensto use arms in defense of hearth and home.” Id. at 635,128 S.Ct. 2783. In McDonald v. City of Chicago, --- U.S.---, 130 S.Ct. 3020, 177 L.Ed. 2d. 894 (2010), the U.S.Supreme Court incorporated the Heller holding to thestates. Similar to the facts of Heller, McDonald

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involved a Chicago law banning the possession ofhandguns in the home. 130 S.Ct. at 3026.

In the wake of Heller and McDonald, the SixthCircuit adopted a two-pronged test in SecondAmendment challenges in the case of United States v.Greeno, 679 F.3d 510 (6th Cir. 2012). The test consistsof the following:

Under the first prong, the court asks whetherthe challenged law burdens conduct that fallswithin the scope of the Second Amendmentright, as historically understood. Chester, 628F.3d at 680. As the Seventh Circuit recognized,“Heller suggests that some federal gun laws willsurvive Second Amendment challenge becausethey regulate activity falling outside the termsof the right as publicly understood when the Billof Rights was ratified.” Ezell, 651 F.3d at 702. Ifthe Government demonstrates that thechallenged statute “regulates activity fallingoutside the scope of the Second Amendmentright as it was understood at the relevanthistorical moment–1791 [Bill of Rightsratification] or 1868 [Fourteenth Amendmentratification]–then the analysis can stop there;the regulated activity is categoricallyunprotected, and the law is not subject tofurther Second Amendment review.” Id. at 702-03.

“If the government cannot establish this–ifthe historical evidence is inconclusive orsuggests that the regulated activity is notcategorically unprotected–then there must be asecond inquiry into the strength of the

App. 14

government’s justification for restricting orregulating the exercise of Second Amendmentrights.” Id. at 703. Under this prong, the courtapplies the appropriate level of scrutiny.Marzzarella, 614 F.3d at 89. If the law satisfiesthe applicable standard, it is constitutional. Id.If it does not, “it is invalid.” Id.

Id. at 518. As pointed out by the Trial Court in itsorder, some courts have found intermediate scrutiny tobe appropriate in cases of this type, where the coreSecond Amendment right has not been implicated. SeeUnited States v. Chester, 628 F.3d 673, 683 (4th Cir.2010). Intermediate scrutiny requires that the statuteor legislation serve important governmental objectivesand be substantially related to achieving thoseobjectives. United States v. Marzzarella, 614 F.3d 85,98-99 (3rd Cir. 2010).

After our review of the applicable law, we find nohistorical or legal basis for Embody’s apparentcontention that the state may not regulate the carryingof firearms. Anchored in Andrews, longstandingTennessee law is such that the legislature mayregulate the carry of firearms with an intent to preventcrime. Embody makes much of his law-abiding status,but this is not the point. A view to prevent crime couldentail regulations that must be adhered to by peoplewithout criminal backgrounds.

As regards the Second Amendment, Heller andMcDonald unquestionably recognize an individual’sright to keep and bear arms. However, neither Hellernor McDonald, nor any U.S. Supreme Court opinion todate has precluded legislatures from regulating thecarry of firearms. This remains a nascent and

App. 15

developing area of law. In any case, there areimportant distinctions between Heller and the instantcase. Both Heller and McDonald involved highlyonerous restrictions on gun ownership which effectivelybanned keeping usable handguns even in one’s home.Heller and McDonald both involved the core SecondAmendment right of “law-abiding, responsible citizensto use arms in defense of hearth and home.” Heller, 554U.S. at 635, 128 S.Ct. 2783. We believe this right of“citizens to use arms in defense of hearth and home” tobe the core Second Amendment right under Heller andMcDonald. Tenn. Code Ann. § 39-17-1307 (a)(1) is nota prohibition on the possession on firearms in thehome. It is not even a genuine prohibition on thecarrying of firearms, as there are numerous defenses tothe law. Tenn. Code Ann. § 39-17-1308 provides:

(a) It is a defense to the application of § 39-17-1307 if the possession or carrying was:

(1) Of an unloaded rifle, shotgun or handgun notconcealed on or about the person and theammunition for the weapon was not in theimmediate vicinity of the person or weapon;

(2) By a person authorized to possess or carry afirearm pursuant to § 39-17-1315 or § 39-17-1351;

(3) At the person’s:

(A) Place of residence; (B) Place of business; or (C) Premises;

(4) Incident to lawful hunting, trapping, fishing,camping, sport shooting or other lawful activity;

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(5) By a person possessing a rifle or shotgunwhile engaged in the lawful protection oflivestock from predatory animals;

(6) By a Tennessee valley authority officer whoholds a valid commission from the commissionerof safety pursuant to this part while the officeris in the performance of the officer’s officialduties;

(7) By a state, county or municipal judge or anyfederal judge or any federal or countymagistrate;

(8) By a person possessing a club or baton whoholds a valid state security guard/officerregistration card as a private securityguard/officer, issued by the commissioner, andwho also has certification that the officer hashad training in the use of club or baton that isvalid and issued by a person certified to givetraining in the use of clubs or batons;

(9) By any person possessing a club or baton whoholds a certificate that the person has hadtraining in the use of a club or baton for self-defense that is valid and issued by a certifiedperson authorized to give training in the use ofclubs or batons, and is not prohibited frompurchasing a firearm under any local, state orfederal laws; or

(10) By any out-of-state, full-time, commissionedlaw enforcement officer who holds a validcommission card from the appropriate out-of-state law enforcement agency and a photoidentification; provided, that if no valid

App. 17

commission card and photo identification areretained, then it shall be unlawful for thatofficer to carry firearms in this state and theprovisions of this section shall not apply. Thedefense provided by this subdivision (a)(10) shallonly be applicable if the state where the out-of-state officer is employed has entered into areciprocity agreement with this state that allowsa full-time, commissioned law enforcementofficer in Tennessee to lawfully carry or possessa weapon in the other state.

Tenn. Code Ann. § 39-17-1308 (a) (2010).

Additionally, Tennesseans who meet certainstatutory qualifications will be issued handgun carrypermits if they wish one. Tenn. Code Ann. § 39-17-1351(Supp. 2012) (detailing the requirements andprocedures for application). The Department of Safety,however, retains the ability to revoke a permit upon,among other things, a finding that an individual posesa material likelihood of risk of harm to the public.Tenn. Code Ann. § 39-17-1352 (a)(3) (Supp. 2012).4 Inno sense does Tenn. Code Ann. § 39-17-1307 (a)(1)come close to resembling the sort of extremelyrestrictive laws struck down in Heller and McDonald.Tenn. Code Ann. § 39-17-1307 (a)(1) does not regulateactivities incident to the core right to keep and beararms for protection for ‘hearth and home’ as articulated

4 We also note that Embody voluntarily withdrew hisadministrative challenge to the revocation of his handgun carrypermit. While Embody may regret this decision, it may not be saidthat he was denied a fair process.

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by the U.S. Supreme Court in Heller and McDonald.Embody’s facial challenge falls far short of the mark.

Embody has characterized this action as both afacial and as applied challenge. Under the post-Hellerjurisprudence as applied by many lower courts and bythe Sixth Circuit in Greeno, we look to 1) the scope ofthe Second Amendment right as historicallyunderstood, and, if necessary, 2) choose and apply alevel of scrutiny as required if the historical evidence isinconclusive. The Heller court underwent a thoroughreview of the history of gun rights in the United States.For reasons previously discussed, we believe that Tenn.Code Ann. § 39-17-1307 (a)(1) does not implicate coreSecond Amendment rights. Nevertheless, as thehistorical evidence for this issue is not conclusive, wewill choose a level of scrutiny. We believe, as did theTrial Court, that intermediate scrutiny is appropriate.Tenn. Code Ann. § 39-17-1307 (a)(1), with certainexceptions regulates the carry of firearms inTennessee. Individuals may apply for handgun carrypermits, subject to a number of disqualifyingconditions. See Tenn. Code Ann. § 39-17-1351. This isa regulation that reasonably comports with the State’sgoal of preventing crime. Whether in light of Heller orthe analysis adopted in Greeno, Tenn. Code Ann. § 39-17-1307 (a)(1) is a legitimate regulation of the carry offirearms that does not run afoul of the SecondAmendment.

We emphasize that we need not and do not passjudgment on the policy wisdom of Tenn. Code Ann.§ 39-17-1307 (a)(1), and the associated handgun carrypermit laws. That is certainly not the court’s properfunction. Political policy decisions belong to the

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General Assembly. We hold only that Tenn. Code Ann.§ 39-17-1301 (a)(1) is within the constitutionallypermissible realm of firearm regulations available tothe state, and it violates neither the state nor federalconstitution. The judgment of the Trial Court isaffirmed.

Conclusion

The judgment of the Trial Court is affirmed, andthis cause is remanded to the Trial Court for collectionof the costs below. The costs on appeal are assessedagainst Leonard Embody, and his surety, if any.

_______________________________D. MICHAEL SWINEY, JUDGE

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APPENDIX B

IN THE CHANCERY COURT FOR THE STATEOF TENNESSEE 20TH JUDICIAL DISTRICT,

DAVIDSON COUNTY, PART FOUR

No. 10-1227-IV

[Filed July 23, 2012] _____________________________LEONARD EMBODY, )

)Petitioner, )

)vs. )

)ROBERT E. COOPER, JR., )Attorney General & Reporter, )

)Respondent. )

_____________________________ )

MEMORANDUM AND ORDER

The Petitioner, Leonard Embody, seeks adeclaratory judgment regarding the constitutionality ofTenn. Code Ann. § 39-17-1307(a)(1), which prohibits“the carrying of firearms for the purpose of goingarmed” by persons not otherwise permitted to carryfirearms by statutory exception or defense. Mr.Embody seeks a ruling that the statute violates boththe U.S. and the Tennessee Constitutions, and asksthat the Court enjoin state actors from enforcing thelaw. This matter is presently before the Court onCross-Motions for Summary Judgment.

App. 21

STATEMENT OF FACTS

Mr. Embody was licensed to carry a firearm in 2001by the Tennessee Department of Safety (“theDepartment”), pursuant to Tenn. Code Ann. § 39-17-1351, et seq. On February 26, 2010, InvestigatorThomas Sexton of the Belle Meade Police Departmentrequested that the Department of Safety revoke Mr.Embody’s handgun carry permit on the grounds thatMr. Embody posed a material likelihood of risk of harmto the public. In his request, Investigator Sexton notedthat the request was based on a January 22, 2010incident where Mr. Embody was found carrying aweapon in an unsafe manner and unsafe condition inan unsafe location.1 Investigator Sexton also referredto other “recent incidents” which demonstrated thatMr. Embody’s actions “do not represent the actions ofa responsible citizen wishing to safely carry a handgunfor legitimate purposes.” On March 10, 2010, theTennessee Department of Safety revoked Mr. Embody’shandgun carry permit on the grounds that he posed amaterial likelihood of risk to the public.

1 Mr. Embody declined to pursue an administrative appeal of thesuspension of his handgun carry permit, instead initiating thepresent challenge to the constitutionality of Tennessee handguncarry permit statutes. Accordingly, the factual situation(s) thatprecipitated the suspension of his handgun carry permit is not atissue and is not detailed in the pleadings. Included in the case file,however, is the March 12, 2010 letter from Mr. Embody to theDepartment of Safety requesting a hearing on the suspension ofhis permit. In this letter, Mr. Embody refers to an incident in theCity of Belle Meade in which he was “walking down Belle Meadeblvd. [sic] with [a] pistol.” Mr. Embody’s handgun carry permit wassuspended two days before the date of this letter, as a result of acomplaint made by the Belle Meade Police Department.

App. 22

PROCEDURAL HISTORY

On March 12, 2010, Mr. Embody filed a petition foran administrative hearing with the TennesseeDepartment of Safety, challenging the suspension ofhis handgun carry permit. On September 14, 2010, Mr.Embody filed a motion to voluntarily dismiss theadministrative review of the suspension of his permit.The Department of Safety granted his motion anddismissed the appeal on September 16, 2010.2

On May 25, 2010, Mr. Embody filed a Petition forWrit of Mandamus or in the alternative, a Petition forInjunctive Relief, with the Williamson CountyChancery Court. On July 25, 2010, following the State’sMotion to Dismiss for Improper Venue, the partiesentered into an Agreed Order transferring the case tothe Davidson County Chancery Court. On September16, 2010, the Court denied Mr. Embody’s Motion forDefault Judgment. On September 20, 2010, Mr.Embody filed a Motion to Amend his complaint,seeking declaratory relief, requesting that themandamus action be dismissed without prejudicedropping his claim based on Tenn. Code Ann. §§ 39-17-1351 and 1352(a)(3), and asking that Department ofSafety Commissioner Dave Mitchell be dismissed fromthis action. On October 11, 2010, the Court granted Mr.Embody’s Motion to Amend.

The Respondent filed a Motion to Dismiss Mr.Embody’s complaint for failure to state a claim

2 The Final Order in the administrative case states that thegovernment’s attorney “informed Mr. Embody that there was noprovision in the relevant statute that would permit him to re-filethis matter at a later date.”

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pursuant to Tenn. R. Civ. P. 12.01(6). On January 21,2011, the Court granted the Respondent’s motion anddismissed the case. Mr. Embody filed a Motion to Alteror Amend the judgment on January 25, 2011. OnFebruary 14, 2011, the Court granted Mr. Embody’smotion, setting aside the Order of Dismissal andreopening the case. The Respondent filed an answer tothe amended complaint on February 23, 2011.

Both Mr. Embody and the Respondent filed Motionsfor Summary Judgment on June 30, 2011. Thesemotions were heard by the Court on September 16,2011. Having considered the briefs, the arguments ofthe parties, and the relevant statutes, constitutionalprovisions and caselaw, the Court is now ready to rule.

STANDARD OF REVIEW

Summary judgment is appropriate in a case inwhich there are no genuine issues of material fact andthe moving party is entitled to judgment as a matter oflaw. Tenn. R. Civ. P. 56.04; Kinsler v. Berkline, LLC,320 S.W.3d 796, 799 (Tenn. 2010). The Respondentcontends that there are no issues of material fact indispute, and Mr. Embody approves this assessment inhis Response to Respondent’s Motion for SummaryJudgment.3 The parties further agree that the legalissues in this case are suitable for disposition onsummary judgment.

3 The parties dispute whether Mr. Embody is ineligible for ahandgun carry permit because he poses a material likelihood ofrisk or harm to the public. Tenn. Code Ann. § 39-17-1352(3).However, the parties contend that this disputed fact is not relevantto Mr. Embody’s challenge to the constitutionality of Tenn. CodeAnn. § 39-17-1307.

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ISSUES

In his amended complaint, Mr. Embody assertsthree causes of action: 1) that Tenn. Code Ann. § 39-17-1307(a)(1) violates the U.S. and TennesseeConstitutions by criminalizing activity that has beendesignated a fundamental right or privilege; 2) thatTenn. Code Ann. § 39-17-1307 is overly broad, in thatit “prohibits good law-abiding citizens includingpetitioner from exercising their individual SecondAmendment Fundamental Right to self-defense and tocarry a loaded handgun in public non-sensitive placessuch as public sidewalks, streets, parks, and loaded inprivate vehicles”; and 3) that Tenn. Code Ann. § 39-17-1307(a)(1) is facially unconstitutional in violation ofU.S. Constitution Amendment II in that it prohibits“non-criminals from carrying loaded handguns.”4 Mr.Embody asks the Court to construe the statute interms of its constitutional validity.

ANALYSIS

The Declaratory Judgment Act, codified at Tenn.Code Ann. § 29-14-101, et seq., gives courts of recordthe power to “settle and to afford relief fromuncertainty and insecurity with respect to rights,status, and other legal relations.” Colonial Pipeline Co.v. Morgan, 263 S.W.3d 827, 837 (Tenn. 2008) (quotingTenn. Code Ann. § 29-14-113). The Act provides that“[a]ny person ... whose rights, status, or other legalrelations are affected by a statute ... may have

4 In his Prayer for Relief, Mr. Embody also seeks an Orderdeclaring Tenn. Code Ann. § 39-17-1307 unconstitutional asapplied. However, he has not asserted individualized grounds asto how the statute has been unconstitutionally applied to him.

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determined any question of construction or validityarising under the ... statute ... and obtain a declarationof rights, status or other legal relations thereunder.”Tenn. Code Ann. § 29-14-103. Declaratory judgmentstatutes are remedial in nature and should beconstrued broadly in order to accomplish their purpose.Tenn. Code Ann. § 29-14-113; Shelby County Bd. ofComm’rs v. Shelby County Quarterly Court, 216 Tenn.470, 482, 392 S.W.2d 935, 941 (1965).

At the outset, the Court is mindful that statutesenacted by the legislature are presumed constitutional.Vogel v. Wells Fargo Guard Servs., 937 S.W.2d 856, 858(Tenn. 1996). Thus, we must “indulge everypresumption and resolve every doubt in favor ofconstitutionality.” Id.

A. Tennessee Handgun Carry Permit Statutes

The Court begins its analysis by looking to thelanguage of Tenn. Code Ann. § 39-17-1307(a)(1). Thestatute states that

[a] person commits an offense who carries withthe intent to go armed a firearm, a knife with ablade length exceeding four inches (4”), or aclub.

The Tennessee Legislature codified defenses toprosecution under Tenn. Code Ann. § 39-17-1307(a)(1)where the possession or carrying of a firearm is:

1) the carrying of an unconcealed, unloadedrifle, shotgun or handgun with noammunition in the immediate vicinity;

App. 26

2) by a law enforcement officer or a personholding a valid Tennessee handgun carrypermit;

3) at the person’s residence, business, orpremises,

4) incident to lawful hunting, fishing, sportshooting, etc.;

5) by a person engaged in the lawful protectionof livestock from predatory animals;

6) by an authorized Tennessee valley authorityofficer, in the performance of his officialduties;

7) by a state, county or municipal judge or anyfederal judge or magistrate;

8) by any out-of-state, full-time, commissionedlaw enforcement officer who holds a validcommission card from the appropriate out-of-state law enforcement agency and a photoidentification, provided that the state hasentered into a reciprocity agreement withTennessee.

Tenn. Code Ann. § 39-17-1308.5 These defenses do notapply to persons who have been convicted of a felonyinvolving the use, or attempted use, of force, violence ora deadly weapon, or who have been convicted of afelony drug offense. Id.

5 Statute is paraphrased.

App. 27

B. Second Amendment Analysis After Heller andMcDonald

The Second Amendment of the U.S. Constitutionprovides that “[a] well regulated Militia beingnecessary to the security of a free State, the right of thepeople to keep and bear Arms shall not be infringed.”U.S. Const. amend. II. Mr. Embody looks to the U.S.Supreme Court’s decisions in District of Columbia v.Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed. 2d 637(2008) and McDonald v. City of Chicago, Ill., 130 S.Ct.3020, 177 L.Ed. 2d 894 (2010) to support his argumentthat Tenn. Code Ann. § 39-17-1307 violates his rightsunder the Second Amendment.

The Heller Court struck down two District ofColumbia laws that, with only minor exceptions,banned possession of handguns in the home andrequired that any guns in the home be renderedinoperable, thereby precluding their use for immediateself defense. In so doing, the Court undertook a lengthyreview of the historical foundation of the language ofthe Amendment and its application throughout U.S.history, determining that the Amendment conferred anindividual right to keep and bear arms and rejectingprior caselaw that treated this right as a collectiveright of the people, assertable only in connection withthe maintenance of a militia. The Court held that theDistrict of Columbia’s prohibition on handgunpossession in the home violated the SecondAmendment, and also determined that the “prohibitionagainst rendering any lawful firearm in the homeoperable for the purpose of immediate self defense” wasalso unconstitutional. Heller, 554 U.S. at 635, 128 S.Ct.at 2821. The Court stated that although the Second

App. 28

Amendment “guarantee[s] the individual right topossess and carry weapons in case of confrontation,”554 U.S. at 592, 128 S.Ct. at 2797, this right is not“unlimited” and that “the right was not a right to keepand carry any weapon whatsoever in any mannerwhatsoever and for whatever purpose.” 554 U.S. at 626,128 S.Ct. at 2816. The Court stated that its holdingwas not intended to cast doubt on longstandingregulatory measures such as those banning thepossession of firearms by felons and the mentally ill, orlaws forbidding the carrying of firearms in sensitiveplaces, such as schools and government buildings, orlaws imposing conditions and qualifications on thecommercial sale of firearms. 554 U.S. at 626-27, 128S.Ct. at 2816-17. The Court further stressed that thepresumptively lawful regulatory measures itenumerated were only examples, and did not comprisean exhaustive list. 554 U.S. at 672, n. 26, 128 S.Ct. at2817 n. 26.

The Heller Court applied the Second Amendment tothe laws of the District of Columbia, leavingunanswered the question of whether the SecondAmendment also applied to the states. This questionwas answered in McDonald, supra, in which the Courtheld that the Second Amendment is fully applicable tothe states by virtue of the 14th Amendment. TheMcDonald Court held that the two Illinois cityordinances at issue violated the Second Amendmentbecause they effectively imposed a total ban onhandgun possession by almost all private citizens,thereby precluding them from possessing handgunseven for the purpose of self defense in the home.McDonald, 130 S.Ct at 3026.

App. 29

C. Facial Challenge

Mr. Embody asserts that Tenn. Code Ann.§ 39-17-1307(a)(1) violates rights protected by the SecondAmendment and is facially unconstitutional. However,the presumption of a statute’s constitutionality applieswith even greater force when a facial challenge to itsconstitutionality is made. Waters v. Farr, 291 S.W.3d873, 921-922 (Tenn. 2009) (citing Gallaher v. Elam, 104S.W.3d 455, 459 (Tenn. 2003); In re Burson, 909 S.W.2d768, 775 (Tenn. 1995)). A facial challenge to a statuteis the most difficult challenge to mount successfully, asthe statute must be found invalid in all its applications.Waters, 291 S.W.3d at 921 (citing United States v.Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d697 (1987). The challenger must establish that no setof circumstances exists under which the statute wouldbe valid. Id. at 921-922.6 Courts “should proceed withcaution and restraint” to avoid interfering withlegitimate government functions, and employ such aremedy as “a last resort.” Id. at 922 (citing Broadrickv. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 37L.Ed.2d 830 (1973).

6 Conversely, an “as applied” challenge

presumes that the statute is generally valid. It merelyasserts that specific applications of the statute areunconstitutional. Thus, an “as applied” challenge onlyrequires the challenger to demonstrate that the statuteoperates unconstitutionally when applied to thechallenger’s particular circumstances.

Waters v. Farr, 291 S.W.3d at 923. (internal citations omitted).

App. 30

The Tennessee Supreme Court has set out threereasons why courts should be wary of invalidating astatute on facial grounds:

First, claims of facial invalidity often rest onspeculation and thus run the risk of the“premature interpretation of statutes on thebasis of factually barebones records.” Second,facial challenges “run contrary to thefundamental principle of judicial restraint” byinviting the courts to “formulate a rule ofconstitutional law broader than is required bythe precise facts to which it is to be applied.”Third, “facial challenges threaten to short circuitthe democratic process by preventing lawsembodying the will of the people from beingimplemented in a manner consistent with theConstitution.”

Thus, a successful facial constitutional challengeresults in the wholesale invalidation of thestatute. While passing on the validity of astatute wholesale may be efficient in theabstract, any gain is often offset by losing thelessons taught by the particular. For this reason,many courts view “as applied” challenges as the“basic building blocks” of constitutionaladjudication. “As applied” challenges arepreferred because, if they are successful, they donot render the entire statute completelyinoperative. In some circumstances, the courtscan best fulfill the legislature’s intent byprohibiting only the unconstitutionalapplications of a statute, while allowing the

App. 31

State to enforce the statute in othercircumstances.

Id. at 922-923 (internal citations and footnotesomitted).

As set forth above, a party challenging a statute’sconstitutionality on its face has the burden of showingthat the statute is invalid in all its applications. Mr.Embody has failed to make such a showing. Instead, herelies upon an overarching argument that becauseTenn. Code Ann. § 39-17-1307(a)(1) criminalizes thecarrying of a handgun, with Tenn. Code Ann. § 39-17-1308 merely offering “defenses” to prosecution, thestatute is unconstitutional. As already set forth,Tennessee law protects the core Second Amendmentright to keep a firearm for the protection of “home andhearth.” Heller, 554 U.S. at 635, 128 S.Ct. at 2821. ThePetitioner’s argument that activities falling outsidethis core right may not be subjected to the regulationembodied in Tenn. Code Ann. § 39-17-1307(a)(1)elevates form over substance, effectively “shortcircuiting” the legislature’s efforts to implement lawsreflecting the will of the people. Accordingly, in linewith the Tennessee Supreme Court’s reasoning inWaters, supra, Mr. Embody’s facial constitutionalchallenge must fail.

D. As Applied Challenge

The Court notes that in his prayer for relief, Mr.Embody asserts that Tenn. Code Ann. § 39-17-1307(a)(1) is also unconstitutional as applied to him.Beyond his assertions that he has is a law abidingcitizen, has never been formally charged with a crime,has never been adjudged mentally deficient, etc., the

App. 32

Petitioner has not asserted individualized grounds asto how the statute has been unconstitutionally appliedto him.7 “A skeletal argument that is really nothingmore than an assertion will not properly preserve aclaim, especially when the brief presents a multitudeof other arguments.” Newcomb v. Kohler Co. 222S.W.3d 368, 400 (Tenn. Ct. App. 2006) (citing UnitedStates v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)).

Even assuming the Court could find that Mr.Embody set forth sufficient facts to present an “asapplied” claim, Mr. Embody does not cite to the properstandard of review or attempt to demonstrate how hisclaim survives constitutional scrutiny. As the Hellerdecision did not set out the standard of scrutiny to beapplied in Second Amendment cases, stating only thatthe ordinances at issue in Heller would fail under anyof the standards of scrutiny employed by the U.S.Supreme Court in protecting constitutional rights, theCourt looks to post-Heller caselaw for guidance.

7 In his Motion for Summary Judgment and Memorandum of Law,Mr. Embody asserts that his handgun carry permit was suspendedby the State “by means of a secret hearing and process.” The recordshows that Mr. Embody challenged the suspension of his permit byinitiating the administrative review process available under Tenn.Code Ann. § 39-17-1353. Provisions of the Uniform AdministrativeProcedures Act, Tenn. Code Ann. § 4-5-301 et seq. are applicable tohearings held pursuant to Tenn. Code Ann. § 39-17-1353 to theextent these provisions are consistent with that statute. Tenn.Code Ann. § 39-17-1355. Accordingly, it appears that Mr. Embody’shearing would have been open to the public pursuant to Title 8,Chapter 44, unless otherwise provided by state or federal law.Tenn. Code Ann. § 4-5-312(d). After filing his petition foradministrative review, however, Mr. Embody filed a motion tovoluntarily dismiss the case, waiving resolution of the factualissues underlying the suspension of his handgun permit.

App. 33

In the May 21, 2012 decision of United States v.Greeno, 679 F.3d 510 (6th Cir. 2012), the Sixth CircuitCourt of Appeals addressed a Second Amendmentchallenge to Section 2D1.1(b)(1), a federal statute thatenhanced penalties for drug offenses involving the useof firearms. The Greeno court adopted the two-prongedapproach used by several other circuits in analyzing an“as applied” Second Amendment challenge. Id. at _ 8

Citing United States v. Marzzarella, 614 F.3d 85, 89(3d Cir. 2010) (“As we read Heller, it suggests a two-pronged approach to Second Amendment challenges.”);U.S. v. Chester, 628 F.3d 673, 680 (4th Cir. 2010)(applying two-pronged approach); Ezell v. City ofChicago, 651 F.3d 684, 701-03 (7th Cir. 2011) (same);United States v. Reese, 627 F.3d 792, 800-01 (10th Cir.2010) (same):

Under the first prong, the court asks whetherthe challenged law burdens conduct that fallswithin the scope of the Second Amendmentright, as historically understood. As the SeventhCircuit recognized, “Heller suggests that somefederal gun laws will survive SecondAmendment challenge because they regulateactivity falling outside the terms of the right aspublicly understood when the Bill of Rights wasratified.” Ezell, 651 F.3d at 702. If theGovernment demonstrates that the challengedstatute “regulates activity falling outside thescope of the Second Amendment right as it was

8 At the time this Memorandum Opinion and Order was written,the electronic database utilized by the Court had not yetincorporated page numbers into its version of the May 21, 2012Greeno decision.

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understood at the relevant historicalmoment–1791 [Bill of Rights ratification] or1868 [Fourteenth Amendment ratification]–thenthe analysis can stop there; the regulatedactivity is categorically unprotected, and the lawis not subject to further Second Amendmentreview.” Id. at 702-03.

“If the government cannot establish this–if thehistorical evidence is inconclusive or suggeststhat the regulated activity is not categoricallyunprotected–then there must be a secondinquiry into the strength of the government’sjustification for restricting or regulating theexercise of Second Amendment rights.” Id. at703. Under this prong, the court applies theappropriate level of scrutiny. If the law satisfiesthe applicable standard, it is constitutional. If itdoes not, “it is invalid.”

We find this two-pronged approach appropriate and,thus, adopt it in this Circuit. United States v. Greeno,679 F.3d at __ (some internal citations omitted).9

Unlike the statute at issue in Greeno, which theCourt found had historical precedent,10 Tenn. CodeAnn. § 39-17-1307(a)(1) presents a broader regulatoryscheme that is not so easily pigeon-holed. The statute’s

9 See footnote 8.

10 As the federal statute in question was “of relatively recentvintage,” according to the court, it looked instead to “the broaderquestion of whether the Second Amendment right, as historicallyunderstood, protected the possession of weapons by individualsengaged in criminal activity.”

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provisions comport with both the Heller decision andwith historical precedent, allowing for the possession ofguns in the home and for their use in hunting, sportshooting, fishing, etc. However, the requirement thatpersons must hold a valid Tennessee handgun carrypermit to defend against prosecution for the unlawfulcarrying of a firearm does not have the same kind ofhistorical corollary. Accordingly, the inquiry mustproceed to the second step and examine thegovernment’s justification for regulating the exercise ofcitizens’ Second Amendment rights.

As an initial matter, the scrutiny that Tennesseecourts apply in determining the constitutionality ofstatutes has

consistently followed the framework developedby the United States Supreme Court, which,depending on the nature of the right asserted ora class of persons affected, applies one of threestandards of scrutiny: (1) strict scrutiny,(2) heightened scrutiny, and (3) reduced scrutinyor the rational basis test. Newton v. Cox, 878S.W.2d at 109. Strict scrutiny analysis isrequired “only when [a legislative] classificationinterferes with the exercise of a ‘fundamentalright’ or operates to the peculiar disadvantage ofa ‘suspect class.’” Id.

Riggs v. Burson, 941 S.W.2d 44, 52 (Tenn. 1997). Inorder to survive a strict scrutiny analysis, the statutemust serve a compelling state interest and be narrowlytailored to serve that interest. Planned Parenthood ofTennessee v. Sundquist, 38 S.W.3d 1, 11 (Tenn. 2000)(citing San Antonio Indep. Sch. Dist. v. Rodriguez, 411U.S. 1, 29, 93 S.Ct. 1278, 1294, 36 L.Ed.2d 16 (1973)).

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Tennessee courts have used the strict scrutinyapproach in regard to fundamental rights “withoutexception.” Id. (citing State v. Smoky Mountain Secrets,Inc., 937 S.W.2d 905, 911 (Tenn. 1996)).

In most other situations, Tennessee courts haveapplied a reduced standard of scrutiny, requiring onlythat a rational basis exist for the classification, or thatthe classification have a reasonable relationship to alegitimate state interest. State v. Tester, 879 S.W.2d823, 828 (Tenn. 1994). Under the rational basisstandard, “[i]f some reasonable basis can be found forthe classification [in the statute] or if any state of factsmay reasonably be conceived to justify it, theclassification will be upheld.” Riggs, 941 S.W.2d at 53(citing Tennessee Small School Systems v. McWherter,851 S.W.2d 139, 153 (Tenn. 1993)); Newton v. Cox, 878S.W.2d 105, 110 (Tenn. 1994). This standard, comparedto heightened or strict scrutiny, places upon thosechallenging a statute “the greatest burden of proof.”Brown v. Campbell County Bd. of Educ., 915 S.W.2d407, 413 (Tenn. 1995) (citing Tennessee Small SchoolSystems, 851 S.W.2d at 153).

In the wake of the Heller decision, some federalcourts have held that strict scrutiny applies only whenthe “core” Second Amendment rights enunciated inHeller are impacted, i.e., “the right of law-abiding,responsible citizens to use arms in defense of hearthand home.” See, e.g., U.S. v. Masciandaro, 638 F.3d 458(4th Cir. 2011); Piszczatoski v. Filko, No. 10-06110, 2012WL 104917 (D.N.J. January 12, 2012); Shephard v.Madigan, No. 11-CV-405-WDS, 2012 WL 1077146(S.D.Ill., March 20, 2012); United States v. Chester, 628F.3d 673 (4th Cir. 2010); U.S. v. Elkins, 780 F. Supp. 2d

App. 37

473 (W.D.Va. 2011). Instead of a strict scrutinyanalysis, these courts have utilized intermediatescrutiny, which dictates that there be

“a ‘reasonable fit’ between the challengedregulation and ‘substantial’ governmentobjective.” Chester, 628 F.3d at 683 (quoting Bd.of Trustees of State Univ. of N.Y v. Fox, 492 U.S.469, 480, 109 S.Ct. 3028, 106 L.Ed.2d 388(1989)); Marzzarella, 614 F.3d at 98 (requiringan asserted governmental “end” to be either“significant, substantial, or important” and thefit between the statute and the government’send to be “reasonable, not perfect” (internalquotation marks omitted)). Thus, thegovernment bears the burden of demonstrating(1) that it has an important governmental “end”or “interest” and (2) that the end or interest issubstantially served by enforcement of theregulation. Chester, 628 F.3d at 683;Masciandaro, 638 F.3d at 473.

U.S. v. Carter 669 F.3d 411, 417 (4th Cir. 2012).

Mr. Embody argues that his fundamental right tocarry a firearm may only be “narrowly regulated witha purpose,” and that the restrictions imposed by thelegislature on his right to carry a weapon constitute animpermissible burden.11 He compares the right to carry

11 In his First Amended Complaint for Declaratory Relief, Mr.Embody complains that if he was eligible for a Tennessee Handguncarry permit, he “would be subject to being listed in a publicdatabase, pay $115, be fingerprinted, background checked, attendan 8 hour class which typically costs about $70, and be tested onaccuracy at a firing range.” He further states that the permit “costs

App. 38

a weapon with the right to freedom of speech, freedomof religion, and freedom to walk on a public sidewalk.However, as explained above, Tenn. Code Ann. § 39-17-1307(a)(1) does not infringe on the core SecondAmendment right enunciated in Heller, i.e., the right tokeep firearms for defense of one’s home. Accordingly,the standard of review to be used in analyzing thispresumptively lawful statute is intermediate at best, asthe statute does not implicate the core fundamentalright protected by the Second Amendment. U.S. v.Masciandaro, 638 F.3d 458, 471 (4th Cir. 2011); U.S. v.Marzzarella, 614 F.3d 85, 97 (3rd Cir. 2010); U.S. v.Skoien, 614 F.3d 638, 641 (7th Cir. 2010); U.S. v.Nowka, No. 5:11-cr-00474-VEH-HGD, 2012 WL2862061, at *6 (N.D.Ala. May 10, 2012); U.S. v. Smith,742 F.Supp. 855, 866 (S.D.W.Va. 2010).

In the present case, the Court finds thatintermediate scrutiny applies in a constitutionalchallenge to Tenn. Code Ann. § 39-17-1307(a).

E. Intermediate Scrutiny

As already set forth, to survive intermediatescrutiny, there must be a “reasonable fit” between therestriction imposed by the challenged law and its“substantial” or “important” purpose. United States v.Williams, 616 F.3d 685, 692 (7th Cir. 2010); U.S. v.Chester, 628 F.3d at 683. The Tennessee Constitutionstates that “the citizens of this State have a right tokeep and to bear arms for their common defense; but

$50 every four years to renew” and he “would be subject to searchand seizure as described in TCA 39-17-1351(t).” He also states that“Tennessee does not recognize out of State permits held byTennessee residents to be valid.”

App. 39

the Legislature shall have power, by law, to regulatethe wearing of arms with a view to prevent crime.”Tenn. Const. art. I, § 26 (emphasis added). Under thisgrant of authority, the Tennessee Legislature enactedTenn. Code Ann. § 39-17-1307(a)(1), which imposes arestriction on the type of weapons that may be carriedby members of the general public, i.e., “[a] personcommits an offense who carries with the intent to goarmed a firearm, a knife with a blade length exceedingfour inches (4”), or a club.” The Legislature determinedthat a violation of this provision constitutes amisdemeanor, Tenn. Code Ann. § 39- 17-1307(b)(2), butalso set out defenses to prosecution under the statutefor handgun carry permit holders, law enforcementofficers, lawful hunters, persons carrying weapons ontheir own home or business property, etc. Tenn. CodeAnn. § 39-17-1308. Tennessee courts have a longhistory of upholding such restrictions. Andrews v.State, 50 Tenn. (3 Heisk.) 165, 871 WL 3579, at *1(1871) (The Legislature “may, by regulation, determinewhat arms may be carried, what shall be proscribed;may declare where they may be carried, and when theymay be carried, as well as declare the mode”). TheTennessee Supreme Court has opined that

[t]he legislative power is the power of the wholepeople, acting by their representatives. If theychoose in that mode, to declare their willingnessto part with a portion of their own liberty, inorder that by the same law the evil minded maybe restrained, who shall say nay? In the exerciseof this great power by the people, they are not tobe held to have tied their own hands, exceptwhere the Constitution makes it clear that theyso intended.

App. 40

Id. at *2. See also Burks v. State, 36 S.W.2d 892 (1931).

Courts employing intermediate scrutiny haveupheld laws placing much greater restrictions on thecarrying of firearms outside the home. See Shephard v.Madigan, No. 11-CV-405-WDS, 2012 WL 1077146(S.D.Ill., March 20, 2012) (upholding state lawsbanning the carriage of loaded firearms outside thehome for self-protection); Piszczatoski v. Filko, No. 10-06110, 2012 WL 104917 (D.N.J. January 12, 2012)(Upholding state law restricting the issuance ofpermits to those showing “a justifiable need” to carry ahandgun); but see Woollard v. Sheridan, No. L-10-2068,2012 WL 695674 (D.Md. March 2, 2012) (finding statelaw requiring “good and substantial reason” forissuance of a handgun permit unconstitutional).

An applicant for a Tennessee handgun carry permitis fingerprinted and subjected to a criminal backgroundcheck. Tenn. Code Ann. § 39-17-1351. The applicant isineligible for a permit if he or she is a convicted felon,is under an order of protection, is addicted to alcohol orany controlled substance, is illegally in the UnitedStates, has been convicted of driving under theinfluence two or more times in the last 10 years, hasbeen judicially determined to be disabled by reason ofmental illness, has been dishonorably discharged fromthe military, etc. Id. Such requirements are designed toensure that permit holders are responsible, law-abidingmembers of the community. The Court finds that thereis a reasonable fit between the State’s goal ofpreventing crime and the restrictions imposed by Tenn.Code Ann. § 39-17-1307. Thus, the statute wouldsurvive scrutiny under any applicable standard.

App. 41

F. Overbreadth Doctrine

Mr. Embody also contends that Tenn. Code Ann.§ 39-17-1307(a)(1) is overbroad, and thus must be ruledunconstitutional. In opining on the application of theoverbreadth doctrine, the federal district court in EastTennessee recently stated that

[n]either the Supreme Court nor this court hasapplied the overbreadth doctrine when the FirstAmendment was not implicated. See UnitedStates v. Salerno, 481 U.S. 739, 745, 107 S.Ct.2095, 95 L.Ed.2d 697 (1987) (“We have notrecognized an overbreadth doctrine outside thelimited context of the First Amendment”); Schallv. Martin, 467 U.S. 253, 268 & n. 18, 104 S.Ct.2403, 81 L.Ed.2d 207 (1984) (“Outside thelimited First Amendment context, a criminalstatute may not be attacked as overbroad.”);Grendell v. Ohio Supreme Court, 252 F.3d 828,834 (6th Cir.2001) (“It is well-settled that facialconstitutional challenges relying on theoverbreadth doctrine, and the resultant chillingeffect such overbreadth has on speech, arelimited to the First Amendment sphere .”).

U.S. v. Whisnant, No. 3:07-CR-32, 2008 WL 4500118,at *4 (E.D. Tenn. September 30, 2008) (quotingColeman v. DeWitt, 282 F.3d 908, 914 (6th Cir. 2002));accord United States v. Barton, 633 F.3d 168, 172 n.3(3rd Cir. 2011). Thus, relevant authority limits the

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application of the overbreadth doctrine to the FirstAmendment.12

Even were the Court to apply the overbreadthdoctrine in the context of a Second Amendmentchallenge, it would not advance Mr. Embody’s cause.The Tennessee Supreme Court has held that

[u]nder our principles of due process, anoverbroad or vague statute is vulnerable to aconstitutional challenge because it (1) fails toprovide fair notice that certain activities areunlawful; and (2) fails to establish reasonablyclear guidelines for law enforcement officialsand courts, which, in turn, invites arbitrary anddiscriminatory enforcement. Forbes, 918 S.W.2dat 448 (citing Rose v. Locke, 423 U.S. 48, 49-50,96 S.Ct. 243, 46 L.Ed.2d 185 (1975); Smith v.Goguen, 415 U.S. 566, 572-73, 94 S.Ct. 1242, 39L.Ed.2d 605 (1974)).

State v. Pickett, 211 S.W.3d 696, 702 (Tenn. 2007). InTenn. Code Ann. § 39-17-1307(a)(1) and its companionstatutes, the Tennessee legislature clearly sets out theweapons-related activities designated as unlawful andthe applicable defenses. The guidelines for enforcementare reasonably clear. Under the statutory scheme, the

12 In addition, to the extent that Mr. Embody attempts to claimthat Tenn. Code Ann. § 39-17-1307(a)(1) acts as a “prior restraint”on his right to bear arms, the Court similarly finds that this FirstAmendment argument is not applicable in the present case. SeePiszczatoski v. Filko, 840 F.Supp. 2d 813 , 832 (D.N.J. 2012) (“theprior restraint doctrine should not be transplanted from the FirstAmendment free expression context to a facial challenge analysisunder the Second Amendment.”).

App. 43

Tennessee Department of Safety “shall suspend orrevoke a handgun permit upon a showing by its recordsor other sufficient evidence that the permit holder . . .poses a material likelihood of risk of harm to thepublic.” Tenn. Code Ann. § 39-17-1352 (a)(3). Torequire a statutory recitation of every fact pattern thatcould conceivably raise public safety concerns wouldnot be feasible, hence the legislature required that“sufficient evidence” be presented to justify a permitsuspension or revocation. In addition, a permit holderis entitled to notice and a hearing upon the suspensionof his handgun carry permit, to prevent an erroneousdeprivation of rights. Tenn. Code Ann. § 39-17-1353.Mr. Embody declined to pursue his administrativeremedy in this matter, as was his right. However, hefailed to demonstrate that Tenn. Code Ann. § 39-17-1307(a)(1) is vulnerable to constitutional challenge asbeing overly broad.

G. Due Process

Finally, Mr. Embody looks to Tenn. Const. art. I,§ 8, which provides “that no man shall be taken orimprisoned, or disseized of his freehold, liberties orprivileges, or outlawed, or exiled, or in any mannerdestroyed or deprived of his life, liberty or property, butby the judgment of his peers or the law of the land.” Hecontends that he been disseized of his liberties andprivileges without judgment, due to the application ofTenn. Code Ann. § 39-17-1307(a)(1). As already stated,the statutory scheme regulating handgun carrypermits entitled Mr. Embody to notice, a hearing andthe opportunity for judicial review in the event hispermit was suspended or revoked. Tenn. Code Ann.§§ 39-17-1353 and 1354. This statutory protection is in

App. 44

accordance with both Tenn. Const. art. I, § 8 and the14th Amendment13 of the U.S. Constitution. Martin v.Sizemore, 78 S.W.3d 249, 267 (Tenn. Ct. App. 2001);Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 471L.Ed.2d 18 (1976). Mr. Embody voluntarily curtailedhis pursuit of an administrative hearing. Accordingly,his due process argument is without merit.

CONCLUSION

In Heller, the U.S. Supreme Court specificallyaffirmed the government’s power to regulate the use offirearms outside the home. 554 U.S. at 626-27, 128S.Ct 2816-17. In the present case, there is a“reasonable fit” between the challenged regulation,Tenn. Code Ann. § 39-17-107(a)(1), and the“substantial government objectives” of public safetyand crime prevention. Mr. Embody’s argument that thestatute is overbroad is without merit and he has failedto show that his right to due process has beeninfringed. Accordingly, Tenn. Code Ann. § 39-17-1307(a)(1) survives Mr. Embody’s challenges under theU.S. and Tennessee Constitutions. Mr. Embody’sMotion for Summary Judgment is denied. TheRespondent’s Motion for Summary Judgment is herebygranted and this case is dismissed. Costs are taxed toMr. Embody.

13 In his Prayer for Relief, Mr. Embody seeks an order declaringTenn. Cod Ann. § 39-17-107(a)(1) unconstitutional in violation ofthe Fourteenth Amendment “equal rights and due protectionclause.” To the extent that Mr. Embody may have intended to raisean Equal Protection claim, he has failed to argue the issue orattempted to overcome the presumption of constitutionality thatwould apply. Thus, the Court deems any such argument waived.

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It is so ORDERED.

/s/ Russell T. Perkins RUSSELL T. PERKINSCHANCELLOR

Cc. Leonard Embody6620 Valley DriveBrentwood, TN 37027

Benjamin A. WhitehouseAssistant Attorney general Tennessee Attorney General P.O. Box 20207 Nashville, TN 37202-0207

RULE 58 CERTIFICATION

A copy of this order has been served by U.S. Mailupon all parties or their counsel named above.

/s/ 7/23/12 Deputy Clerk and Master DateChancery Court

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APPENDIX C

IN THE SUPREME COURT OF TENNESSEEAT NASHVILLE

Chancery Court for Davidson County

No. 101227-IV No. M2012-01830-SC-R11-CV

[Filed October 31, 2013]__________________________LEONARD EMBODY )

)v. )

)ROBERT E. COOPER JR. )__________________________ )

ORDER

Upon consideration of Leonard Embody’sapplication for permission to appeal and the recordbefore us, the application is denied.

PER CURIAM

App. 47

APPENDIX D

BEFORE THE COMMISSIONER OF THETENNESSEE DEPARTMENT OF SAFETY

Case No. G 4505N

[Filed September 16, 2010] ______________________________________In the Matter of: )

)State of Tennessee Department of Safety )

)vs. )

)Leonard Embody )Handgun Carry Permit# : 083431342 )______________________________________ )

FINAL ORDER

This matter is before Deborah M. Martin,Commissioner’s Designee, sitting for the Commissionerof the Tennessee Department of Safety, as HearingOfficer, on a Motion to Dismiss by Leonard Embody.The Motion to Dismiss was heard by telephoneconference call on September 14, 2010. Ms. LizabethHale, Staff Attorney, represented the Department ofSafety. Mr. Embody represented himself.

There was no objection to the motion to dismiss bythe Department. Ms. Hale informed Mr. Embody thatthere was no provision in the relevant statute thatwould permit him to re-file this matter at a later date.

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Therefore, Mr. Embody’s motion to dismiss hisappeal of the Department’s decision to suspend hishandgun carry permit is hereby GRANTED. Thehearing set for December 3, 2010 is hereby canceled.

THIS ORDER is entered pursuant to the authoritycontained in Rule 1340-2-2-.21, Rules of Procedure forAsset Forfeiture Proceedings of the Department ofSafety and the Commissioner’s Order of Delegationdated January 22, 2007.

THIS ORDER entered and effective this the 16th

day of September, 2010.

/s/ Deborah M. Martin Deborah M. MartinCommissioner’s Designee Tennessee Department of Safety 1150 Foster Avenue Nashville, Tennessee 37249 (615) 251-5114