A Facebook post from Shelby County Mayor Lee Harris claims Tennessee Gov. Bill Lee does not have the constitutional right to send National Guard troops into Tennessee communities.
The post went up Monday morning and gained traction throughout the day. By early afternoon it had already been shared more than 100 times by General Sessions Court Clerk Tami Sawyer, Indivisible Memphis, Friendship Baptist Church – Klondike, state Rep. John Ray Clemmons (D-Nashville), and many more.
“Here’s what the Tennessee Constitution says about a Tennessee Governor sending National Guard troops into Tennessee communities this week,” Harris’s original post reads. “Let me summarize: He can’t do it. #FreeTennessee.”
It carries a section from the Tennessee Constitution that reads: “The militia shall not be called into service except in cases of rebellion or invasion, and then only when the General Assembly shall declare, by law, that the public safety requires it.”
Clemmons agreed with Harris in his own post about the law.
“Though he swore an oath to uphold it, I’m willing to bet Gov. Bill Lee has never read the Tennessee Constitution, and we all know Trump hasn’t,” Clemmons wrote on Facebook Monday. “Lee is allowing troops to march in the streets of Memphis and trample all over the law of this state. This isn’t normal or just. Don’t accept it as such.”
That full section of the state Constitution adds a layer of complexity to the issue, however. The sentence before what Lee shared reads the governor, “shall be commander-in-chief of the Army and Navy of this state, and of the militia, except when they shall be called into the service of the United States …”
Also, a 2024 law passed by the Tennessee General Assembly further muddies the issue. It reads that, “The governor, with the advice and consent of the general assembly, and pursuant to the laws of the United States, shall call the militia, or any portion thereof, into active service at any time that public safety requires it …” That law goes on to require a draft for the militia and county assessors are responsible for collecting information on all of those who qualify.
More broadly, though, the 2024 law does not seem in harmony with the state Constitution that restricts the governor’s powers to call the Guard only in special situations and then only with the permission of the Tennessee General Assembly.
State lawmakers considered changing the Constitution’s rules on the state militia here during the 112th General Assembly back in 2021-2022. A resolution from then-state-Sen. Frank Niceley (R-Strawberry Plains) would have stripped out the language about calling up the militia. It would have replaced it with this:
“But the militia shall not be called into service except when public safety requires it, including in case of invasion, disaster, insurrection, riot, attack, or combination to oppose the enforcement of the law by force and violence, or imminent danger thereof, or other grave emergency, and then only when the General Assembly declares, by law, that the public safety requires it,” reads the resolution.
So, what is the state militia? Is it the National Guard?
The Tennessee Firearms Association (TFA) said Tennessee Attorney General Herbert Slatery issued what it called a “rare” opinion on the matter back in 2021.
However, that opinion — or at least some opinion about militias — was withdrawn. The link to a document called Opinion No. 21-05 is empty, saying, “No opinion posted; this opinion has been withdrawn.”
Here is the opinion as TFA reported it back in 2021:
QUESTION 1: Is the Tennessee State Guard a militia, as contemplated by the Constitution of Tennessee, or is it part of the Army of this State, similar to the National Guard?
OPINION 1: The Tennessee State Guard, like the Tennessee National Guard, is a militia under the Constitution of Tennessee.
QUESTION 2: Is a militia currently authorized under the laws of this state to deploy and defend persons or property during a civil disorder or riot, a declared civil emergency, or a curfew?
OPINION 2: While Tennessee Code Ann. § 58-1-301 provides that the governor may call the militia into service at any time that “public safety” requires it, that law does not appear to comport with article III, section 5 of the Tennessee Constitution.
QUESTION 3: Using the definition of ’militia’ as a group of private citizens who are armed and trained for military service apart from the regular armed forces, does the Constitution of Tennessee prohibit Tennessee residents from organizing into local or regional militias?
OPINION 3: Yes. The Constitution of Tennessee prohibits a group of private citizens who are armed and trained for military service apart from the regular armed forces from organizing into local or regional militias.”