L E G A L U P DAT E By: David A. Codevilla
Office of the General Counsel, Tennessee Valley Authority
TENNESSEE’S FIREARM CARRY PERMIT LAWS: NEITHER UNUSUAL NOR COMMON As I’ve learned after almost ten years of living in Knoxville, Tennessee is an unusual state. It has three very distinct regions, each of which might be happier as an independent state. Topography ranges from sub-alpine to sub-tropical. Political and social diversity ranges from big-city Memphis to the fiercely libertarian foothills of the Great Smoky Mountains. However, with one major exception, Tennessee’s firearm laws – and specifically the laws governing who can carry what kind of firearm, concealed or not – are not unusual. Although unique, they are different in degree more than in kind from analogous laws in neighboring states. Common Ground The firearms laws of four nearby states (Alabama, Arkansas, Georgia, and Virginia1), and Ohio, are broadly consistent with Tennessee’s firearms laws.2 All have constitutional provisions affirmatively stating citizens’ right to keep and bear arms.3 None require permits to purchase or possess rifles, shotguns, or handguns (consistent exceptions exist for felons, mentally ill, and minors). These states also specifically preempt local jurisdictions’ regulation of firearms or ammunition.4 All have a “shall issue” statutory regime for handgun or concealed weapons carry permits, meaning that, generally, state statutes limit or remove discretion from state officials to deny a permit if the applicant satisfies certain statutory criteria.5 Despite the general consistency of these statutory regimes, no two states’ laws are exactly alike.6 For example, Kentucky, Mississippi, and Missouri have even less restrictive firearms and handgun carry permit laws than Tennessee. Like twelve other states, none of these states require a permit to carry a handgun (concealed or otherwise); Kentucky’s most recent law (effective June 2019) eliminated the permit requirement for concealed carry, safety training requirements, and certain fees.7 Though handgun concealed carry permits remain available on a “shall issue” basis in all three states, presumably, such permits are useful for their holders only when traveling to states with reciprocity. By contrast, North Carolina and Michigan establish higher thresholds for handgun or concealed carry permit applicants. In North Carolina, no state permit is required to purchase a rifle or shotgun, but state law requires a “Pistol Purchase Permit” or a concealed handgun permit in connection with any purchase, sale, transfer, or gift of a handgun.8 Further, though North Carolina is a “shall issue” state with respect to such permits, a Pistol Purchase Permit is valid for only one handgun purchase. In addition to establishing a licensing requirement for purchases, sales, or transfers, Michigan requires registration of handguns, which local authorities must keep for six years. A concealed carry permit holder in Michigan (also a “shall issue” state, but with extensive statutory prerequisites) is exempted from the handgun licensing requirements.9 Among the states of the federal Sixth Circuit (Tennessee, Kentucky, Ohio, and Michigan), Michigan’s more restrictive firearms laws are more anomalous than Tennessee’s.10 Trend Setting? If in fact “[c]oncealed weapons permit laws across America are experiencing a trend toward less restriction,”11 recent Tennessee legislation suggests that state legislators are firmly in the middle of that trend. In 2019, the Tennessee legislature passed HB 1264, which Governor Bill Lee signed into law on May 24, 2019, and will take effect on January 1, 2020.12 The statute creates a two-tier handgun carry permit system: the previously available (and renamed) “enhanced handgun carry permit” and a new “concealed handgun carry permit.” Interestingly, the latter has no application fee, authorizes only concealed carry (after an applicant completes one of several training courses, including an as yet nonexistent online course, or a hunter’s safety course), and restricts the places in which the new permittee could carry a concealed handgun.13 The “what’s old
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is now enhanced” permit retains prerequisites, such as fingerprinting, background checks, a $100 application fee, and completion of an approved, live-fire handgun safety course. Once issued, the “enhanced” permit would be valid for eight years (versus five years for the lower-tier permit), and its privileges include exemptions from restrictions on carrying a handgun in parks, forests, waterways, and properties owned by educational institutions. Putting these changes in context, Tennessee legislators were willing to take small steps towards what often is deemed “Constitutional Carry” (see, e.g., Kentucky’s 2019 legislation) by loosening the restrictions for “lower-tier” permits, increasing the privileges for “enhanced” permits, but declining to move to a (largely) permit-less concealed carry statutory scheme.14 As a result, Tennessee’s handgun carry laws in 2020 look more like unique hybrids of various (albeit more permissive than restrictive) approaches, rather than trend-setting or trend-following. The Permit of a Lifetime The Tennessee Department of Safety and Homeland Security (DSHS) “shall issue” a lifetime handgun carry permit to “[a]ny resident of Tennessee who is a United States citizen or lawful permanent resident, [and] who has reached twenty-one (21) years of age, [i]f the applicant is not prohibited from purchasing or possessing a firearm in this state [or under] any other state or federal law, and the applicant otherwise meets all of the requirements of [Tenn. Code Ann. § 39-17-1351].” These statutory requirements apply to both handgun carry permit holders and lifetime handgun carry permit holders; however, a lifetime handgun carry permit remains valid for the life of the permit holder, unless the permit holder no longer meets the basic statutory requirements for a handgun carry permit. DSHS must conduct a criminal history record check in the same manner as required for handgun carry permit renewals, which is every five years after issuance. This application process is essentially the same as the process for a (soon to be “enhanced”) handgun carry permit, and the permit fee for a lifetime handgun carry permit is $200.00.15 Indiana is the only other state that provides a “lifetime” option. In Indiana, another “shall issue” state, but one that prohibits open carry without a permit, an applicant can obtain either a “qualified” (for “hunting and target practice”) or “unlimited” (“for the purposes of the protection of life and property”) handgun carry license, either of which the applicant can convert, upon payment of an additional fee, into a “lifetime” license.16 Indiana requires a permit for any handgun carry, open or concealed, in contrast to Tennessee’s unique but more permissive handgun laws. Conclusion Tennessee’s existing and forthcoming handgun carry permit schemes remain broadly similar to those of its neighboring states, even with a new “two-tier” permit system and the continued availability of lifetime permits. In the upcoming national election year, though advocates on both sides of firearms freedom issues will skirmish in the Tennessee legislature, Tennessee’s firearms laws likely will remain unique but not unusual.
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Given the results of Virginia’s state legislative elections on November 5, 2019 (Democrat party control of both the House and Senate, with a Democrat governor), it is likely that Virginia’s firearms and handgun carry laws will become more restrictive (more consistent with North Carolina’s, and perhaps even Michigan’s, statutory regimes). Tennessee’s firearms laws are codified at Tenn. Code Ann. §§ 39-11-106, 39-17- 1301-39-17-1323, 39-17-1351, 39-17-1357, 39-17-1359, 62-35-118, 70-4-123. See Tenn. Const. art. I, § 26 (“That the citizens of this State have a right to keep and to bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime.”). (Continued on page 15)
December 2019