The Tennessee legislature is wrestling with when a citizen may use deadly force to protect property, and the debate exposes something the Second Amendment community has neglected for too long: a right to keep and bear arms that excludes the right to use them is a glorified hammer. The fight is not really about one bill. It is about whether the law of self-defense will keep pace with the constitutional right that stands behind it.
The Missing Right: Why “Keep and Bear” Is Hollow Without a Right to Use
The text of the Second Amendment guarantees the right of the people to keep and bear arms. To “keep” means to possess. To “bear” means to carry. The Supreme Court has held that the right extends into public for self-defense in case of confrontation. But notice what neither the text nor leading case law directly resolves: when, exactly, may the citizen pull the trigger, brandish, or meet violence with violence?
That gap is not academic. Look at the 1999 Tony Martin case in the United Kingdom. Britons may own certain firearms, but Martin’s prosecution after he shot intruders inside his English farmhouse made clear that the U.K. does not recognize a meaningful right to use those firearms in self-defense. Possession without use is theater. Plenty of countries permit guns for hunting and target shooting; that is not a gun culture in the constitutional sense. The moment the right to use is stripped out, the rest collapses.
Worse, the question of when deadly force is justified is almost never answered by Second Amendment jurisprudence. It is answered by state criminal codes — penal-code definitions of self-defense, defense of others, and defense of property. The constitutional right and the criminal-code right have drifted apart, and Tennessee is what that drift looks like.
Locke, Labor, and the Property/Life Line
The standard objection runs: you may use deadly force to defend your life, but property is just property. A candy bar is not a person. As a rule of thumb, fine. As philosophy, it is kindergarten thinking.
Go back to the foundational philosopher of the American project. John Locke, in the Second Treatise of Government (1689), Chapter V, “Of Property,” argues that every person has a property in his own body, and that by mixing the labor of that body with the world he creates property in the things he acquires. The TV, the car, the house — none of it came to you by magic. Your body put in the hours that turned into wages, that turned into the things you own.
Follow the chain. Your body is yours. The labor of your body is yours. The fruits of that labor are yours. The property bought with those fruits is a stored portion of your physical life. When a thug destroys it, he consumes part of the life you spent earning it. The line between “life” and “mere property” is not as clean as the bumper sticker pretends.
Defending Civilization: The Walmart Hypothetical and the Tennessee Debate
Now the load-bearing hypothetical. Imagine a small town in Kansas — pick any state — where one Walmart Supercenter is the pharmacy, grocery, gas station, and optometrist for the region. A hundred protesters descend on it, not to make a point but to destroy it. The corporation is insured and disinclined to fight. The local police, wary of becoming the next Chauvin headline, hesitate. The only supply line for the surrounding community is about to be rubble.
Are we really prepared to say that the lawful citizens of that town cannot gather their friends, their lawful firearms, and stand between the mob and the pharmacy? That is property in the technical sense. It is also civilization in every sense that matters. Take out the only pharmacy and people stop getting their medications; take out the gas station and the ambulances stop running; take out the grocery and the children stop eating. A right to deadly force that vanishes the moment a mob crosses from “threatening a person” to “destroying the means by which a town lives” is barbarians at the gate with a permission slip.
This is the frame for Tennessee. A House bill and a Senate bill have been marketed as “defense of property” reform. The Tennessee Firearms Association, in reporting by Cam Edwards at Bearing Arms, has thrown cold water on the marketing. TFA notes that “despite being framed as a protection of property measure, the statute as amended in 2026 expressly prohibits the use of deadly force unless there is an imminent threat of death, serious bodily injury or grave sexual abuse to a human being.” The amendment, TFA concludes, “contains essentially the same person-centered threshold of imminent threat to a human that already governs Tennessee self-defense law.” Stripped of the rhetoric, it “appears to have changed nothing” — except to mislead citizens into criminal exposure.
The takeaway is for Second Amendment litigators. The interplay between the Second Amendment and state criminal self-defense codes has never been seriously litigated. It needs to be. The right to keep and the right to bear cannot mean what the Supreme Court says if the right to use is left to penal codes drafted by jurisdictions that, in my view, are too often more solicitous of the criminal than of the homeowner. Tennessee is where the conversation has surfaced. It should not be the last.
Mark W. Smith is a constitutional attorney, member of the Bar of the Supreme Court of the United States, and host of The Four Boxes Diner. He is the author of First They Came for the Gun Owners and Disarmed.