There’s unconstitutionally vague and then there’s just vague
And this is neither.
An editorial over the recent case that overturned Tennessee’s guns in restaurants laws:
The ruling that the new law allowing people with handgun permits to bring guns into restaurants serving alcohol is “unconstitutionally vague” guarantees further debate on the issue when the Legislature reconvenes in January.
It does. And we will likely get even more pro-gun laws. But this ain’t a post about that, it’s a post about this:
Having done some more reading on the guns in restaurants bill, I’ve concluded that Claudie Bonnyman is almost sorta correct regarding trouble applying the law. The issue is not that the law is unconstitutionally vague or in any other way plain old vague. You see, the line is that Tennessee law doesn’t define bars or restaurants very well and one week a restaurant is a restaurant and then the next week it magically transforms into a bar. As such, this gun law is void. Which is dumb. Sounds to me like the laws defining restaurants and bars are what’s really at issue. And any person of ordinary intelligence can make the distinction on whether they are in a bar or a restaurant.
The other, more important, issue brought up is that a permit holder could inadvertently break the law. And this is the issue that they get right. The example given in the past by WizardPC is thus:
You, your wife, and your 2.4 kids go into your local latino restaurant (this is the example that Will Cheek used when arguing for the restaurant lobby) for dinner on a Saturday. You check for 1359 signage, and there isn’t any. You’re open carrying, because that’s how you roll. The hostess seats you, and the server brings you your chips and salsa. No one mentions your weapon, probably because they don’t notice. At the end of your dinner, you get up to pay at the front counter. Unbeknownst to you, Chief Ronal Serpas is also in that restaurant, and he knows that last week the restaurant was fined because more than 50% or their revenue came from liquor sales–they have a very good happy hour special on Margaritas.
Under the law cited above, it doesn’t matter that you didn’t know that.
And that is true. One could inadvertently violate the law.
Side note: Since it seems restaurant laws are unclear, any bets on whether the state will also use this as an opportunity to regulate the food industry more? I hope these restaurateurs like the increased regulation that will probably come down the pike for them.
December 7th, 2009 at 12:28 pm
Even with mandatory signage laws, it’s easy to violate the law in Texas.
A taqueria chain in Houston Texas in general doesn’t have 51% signs because they don’t generally meet the criteria.
But one in Pasadena DOES, and at the time they didn’t post except inside, not in line of sight or the entry, and only in spanish.
There are some sports bar and grills that don’t meet the 51% criteria, and some that do. They have huge dinning rooms, and mainly serve food, so just because it’s a bar and grill doesn’t mean it’s 51%. One that does make 51% or more posts in the damn bathroom hall way, behind a closed door to the rest of the restaurant.
Fun times.
December 7th, 2009 at 1:27 pm
Wizard’s point is well taken, but there’s a problem with it. This isn’t a case of “ignorance of the law is no excuse”. We are well aware of the law. If an establishment is a “restaurant” one week and a “bar” the next and no one can ever know which, that is a failure in the normal operations of the system (liquor license).
When a business violates it’s terms for it’s liquor license and puts you violation of law that is not the same as say, driving 65mph in a 55mph zone because you didn’t know the speed limit. It’s like having the throttle break and the car accelerates you past the speed limit outside of your control. The first is still a crime, the second isn’t, because in the first you *intended* to drive 65mph, while in the second it was a failure in the normal operations of the system (car).
December 7th, 2009 at 2:12 pm
I know that alcohol is viewed differently down there, but it seems to me that now is the time to simply repeal all laws prohibiting guns in restaurants and bars in Tennessee and do it like we do north of the Ohio.
As a professor of mine said (a, *ahem*, few years ago), “the most bright line rule is no rule.”
December 7th, 2009 at 2:14 pm
There’s a much simpler solution – Make it illegal to carry a weapon when you are above a certain BAC. Period.
Then, it doesn’t matter if you’re in Applebee’s, Tim’s Tequila Joint, or walking the street. Everyone is safe regardless of where they are.
December 7th, 2009 at 2:15 pm
Robb, They have that too. If you’re BAC is greater than zero, you’re breaking the law.
December 7th, 2009 at 2:59 pm
There’s a similar concern here in Virginia. There are no “bars,” there are only restaurants that may or may not have a license to serve alcohol. Concealed carry is illegal in any restaurant with such a license, but open carry is legal. The problem is that there is often no good way to tell if a restaurant has an ABC license or not until you look at the menu. They are required to post the license, but it’s usually somewhere near the cash register, and often hidden among other documents – the business license, chamber of commerce certificate, restaurant license, the first dollar they made, whatever little reminder notes they’ve posted for themselves, etc. Plus, you have to be inside to see it, by which time you’ve already broken the law. There is no requirement to post any notice where it would be visible outside the restaurant.
Our local Chinese buffet even has an ABC license. We had a BBQ place where the dining area was only about 10′ x 15′ and you sat at picnic tables – but they had an ABC license! You’d never suspect it by looking at the restaurant.
December 7th, 2009 at 3:29 pm
Uncle, I seem to remember similar circumstances pertaining to bars in Tennessee back when I still lived there in Hamilton County. They were trying to pass liquor by the drink, as opposed to the brown bagging rules they had at the time and this is probably before your time. They wanted a place to sell a certain amount of food before they could have mixed drinks. Does anyone else remember this?
December 7th, 2009 at 3:43 pm
Well, the most expedient method of resolving this is setting the law to allow carry to all places, except those who post. Simple, methodical, and best of all leaves no doubt where and when you can carry.
December 7th, 2009 at 3:59 pm
How about you can carry wherever you want, and people who post signs forbidding carrying are brought up on charges of treason for trying to violate other citizens’ 2nd amendment rights and deported to France.
December 7th, 2009 at 4:02 pm
Exactly, Jonathan.
States without such regulations do just fine.
I don’t see crowds on drunken shooters in western states that don’t even bother with anything more than “don’t carry while intoxicated”.
December 7th, 2009 at 4:11 pm
Yu-Ain Gonnano:
Go read the linked post and you’ll see that I didn’t make an “ignorance of the law is no excuse” argument. You full well know the law. It’s an “ignorance of the situational legality of your presence is no excuse.”
And yes, the way the law is written, it is EXACTLY like going 65 when you thought you were in a 55.
December 7th, 2009 at 4:43 pm
Disagree about the zero BAC. If you can’t drink and maintain proper decorum, you can’t drink, armed or not, at least you shouldn’t. Anything else is punishment of “potential” behavior. All us penis carriers could conceivably be jailed for rape under such a system. Outlaw bad behaviors, not potential bad behaviors.
Anyone who cannot understand that simple concept, does not understand nor desire liberty.
December 7th, 2009 at 5:29 pm
Wizard, the problem is with “ignorance of the situational legality of your presence is no excuse” is that the “situation legality” is based on a system outside of your control (liquor licensing) *malfunctioning*, not your own intent. It is not speeding if your car breaks.
The solution to an establishment violating it’s liquor license is not to punish it’s patrons for being unaware of that fact, but rather to suspend the business’ liquor license. If they ain’t serving alcohol, there’s no problem. We should not have a system where the business is allowed to violate the law with no punishment, but the citizenry isn’t.
A couple of Nits
1) “situational legality of your presence” v/s “the law”.
Seems like the same thing to me. You could, after all, change the speeding example “ignorance of the law” to “ignorance of the situational legality of your speed” and it wouldn’t change anything. You still aren’t speeding if your car breaks.
2) Either way, both are premised upon the assumption that just because you are ignorant, you *could* know and therefore *should have known*. You would have a hard time, however, convincing a jury that a driver should be fined for speeding after you removed all the speed limit signs. They would rightly conclude that it was not the driver’s fault as it’s no longer an issue of “you should have known” but rather one of “you can not know”.
December 7th, 2009 at 5:32 pm
Here in Minneapolis, we had a fun trip round the vaguely worded laws when a strip club wanted to build within 500 feet of a “church.” Said church being newish non-alcoholic club for youth with a Christian message. The gentleman’s club decided to go down the “define church” route and into this same mire. Much hemming, hawing, and toes in the sand ensued. Eventually the strip club disappeared as the thing drug out past their financing. Nobody but me seemed upset that a “church” can apparently build within 500 feet of already established gentleman’s clubs in the area.
As for BAC as a trigger I think it sucks, but it sucks less than all the other sucky options for legislating carrying under the influence. The limit should be set the same as driving though. Compared to a two ton single projectile, 5-18 much smaller projectiles on my belt shouldn’t be a big deal.
December 7th, 2009 at 7:24 pm
Let’s not forget this whole thing was set in motion by a restaurant owner that wanted to have it both ways; he didn’t want those nassssty old guns in his establishment, but didn’t want to put up the sign that would keep paying CHL’s out.
Shootin’ Buddy, I’m afraid Tennessee is still a long way from treating CHL’s and alcohol-imbibers like adults.
Put up the sign; Me, my handgun and my money will be more than happy to stay out of your store.