Tyler v. Hillsdale County Sheriff’s Department: Amicus Brief Arguing Against the Use of Strict Scrutiny in Second Amendment Cases

Posted on Tuesday, September 1st, 2015

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Case Information: Tyler v. Hillsdale County Sheriff’s Dep’t, No. 13-1876 (6th Cir. Brief Filed Aug. 19, 2015)

At issue: This case presents an as-applied challenge to the federal statute that prohibits firearm possession for individuals who have been involuntary committed to a mental institution. The plaintiff, Clifford Tyler, had been involuntarily committed to a mental institution in the 1980s, but had a clean record and bill of health since that time and argued that the statute, as applied to him, violated the Second Amendment. The Sixth Circuit agreed with this argument and, in doing so, became the first federal court of appeals to generally endorse strict scrutiny as the appropriate level of review for Second Amendment challenges. This case has important implications for how courts around the country analyze laws designed to reduce gun crime and violence.

The Law Center’s Brief: Our brief argues that the Sixth Circuit was wrong in its general conclusion that strict scrutiny should be the default level of review for Second Amendment cases. As the harshest level of review available, strict scrutiny is inappropriate in the context of firearms regulations that have been proven to save lives. If any heightened scrutiny is in fact mandated by the Second Amendment, intermediate scrutiny is the more appropriate level of review. Our brief argues that it is not true that laws that burden fundamental rights automatically trigger strict scrutiny and that several of the factors relied on in applying strict scrutiny in other contexts are not present in the Second Amendment arena. Unlike other constitutional rights, the exercise of Second Amendment rights inherently increase the risk of injury and death to others. Moreover, the Heller court itself implicitly rejected strict scrutiny when it classified several categories of laws, such as felon-in-possession laws, as “presumptively valid.”

Local Authority to Regulate Firearms in Tennessee

Posted on Tuesday, September 1st, 2015

Tennessee Code Annotated § 39-17-1314(a) states that “the general assembly preempts the whole field of the regulation of firearms, ammunition, or components of firearms or ammunition, or combinations thereof including, but not limited to, the use, purchase, transfer, taxation, manufacture, ownership, possession, carrying, sale, acquisition, gift, devise, licensing, registration, storage, and transportation thereof, to the exclusion of all county, city, town, municipality, or metropolitan government law, ordinances, resolutions, enactments or regulation. No county, city, town, municipality, or metropolitan government nor any local agency, department, or official shall occupy any part of the field regulation of firearms, ammunition or components of firearms or ammunition, or combinations thereof.”

Local regulation is permitted where explicitly provided by Tennessee Code Annotated § 39-17-1314(b) or other state laws.1 Subsection (b) generally allows local regulation of:

  • The carrying of firearms by local government employees or independent contractors when acting in the course and scope of their employment or contract;
  • The discharge of firearms within the limits of the city, county, town municipality or metropolitan government;
  • The location of shooting ranges; and
  • The enforcement of state or federal firearm and ammunition laws.

Local governments may prohibit the possession of weapons, including gun possession by any person with a Tennessee handgun carry permit, at meetings conducted by, or on property owned, operated, managed or under the control of the government entity.2

In 1999, the Tennessee General Assembly amended section 39-17-1314 to reserve to the state the exclusive “authority to bring suit and right to recover against any firearms or ammunition manufacturer, trade association or dealer by or on behalf of any” state entity or local government for damages, abatement or injunctive relief resulting from or relating to the lawful design, manufacture, marketing or sale of firearms or ammunition unless based on a breach of contract or warranty in connection with firearms purchased by that entity.3 For more information about this statute, see our page on Immunity Statutes in Tennessee.

While there are no cases construing the provisions of sections 39-17-1314 or 39-17-1359, the Tennessee Attorney General has addressed whether local governments may prohibit the possession of handguns or long guns on publicly-owned property.4 Reviewing the provisions of both Tennessee Code Annotated §§ 39-17-1314(a) and 39-17-1359, the Attorney General opined that although section 39-17-1314(a) precludes local government entities from regulating firearm possession, localities do have the authority to regulate the possession of firearms – both handguns and long guns – on property owned or controlled by a local government.5 The Attorney General has also opined that while municipal regulations are permitted under Tenn. Code Ann. § 57-5-106 to regulate the sale of beer via a permit process, a local jurisdiction cannot use this process to restrict a person from possessing a firearm on the premises of an establishment with a permit to sell beer, as section 39-17-1314(a) prohibits such regulation.6

In 2014, the state enacted a law prohibiting local governments from regulating the possession, transportation or storage of a firearm or firearm ammunition by a handgun carry permit holder in such person’s vehicle while utilizing public or private parking areas.7

 

  1. Tenn. Code Ann. § 39-17-1314(a). []
  2. Tenn. Code Ann. § 39-17-1359(a). []
  3. Tenn. Code Ann. § 39-17-1314(d)(1), (2). []
  4. Op. Att’y Gen. 04-020, 2004 Tenn. AG LEXIS 20 (Feb. 9, 2004). []
  5. Opinion No. 04-020, at *1-*2, *6. []
  6. Op. Att’y Gen. 09-118, 2009 Tenn. AG LEXIS 154 (June 12, 2009). []
  7. Tenn. Code Ann. § 39-17-1313(a). []

Registration of Firearms in Tennesee

Posted on Tuesday, September 1st, 2015

Tennessee does not require the registration of firearms.

See our Registration of Firearms policy summary for a comprehensive discussion of this issue.

Licensing of Gun Owners & Purchasers in Tennessee

Posted on Tuesday, September 1st, 2015

Tennessee has no law requiring gun owners or purchasers to obtain a license.

See our Licensing of Gun Owners or Purchasers policy summary for a comprehensive discussion of this issue.

Immunity Statutes in Tennessee

Posted on Tuesday, September 1st, 2015

The Tennessee General Assembly has declared that the lawful design, marketing, manufacture and sale of firearms and ammunition to the public are not unreasonably dangerous activities and do not constitute a nuisance per se.1

The authority to bring suit and right to recover against any firearms or ammunition manufacturer, trade association or dealer by or on behalf of any state entity, county, municipality or metropolitan government for damages, abatement or injunctive relief resulting from or relating to the lawful design, manufacture, marketing or sale of firearms or ammunition to the public is reserved exclusively to the state.2

Tennessee’s immunity provisions do not prohibit a county, municipality, or metropolitan government, however, from bringing an action against a firearms or ammunition manufacturer or dealer for breach of contract or warranty as to firearms or ammunition purchased by the county, municipality, or metropolitan government.3 Individual persons are are not precluded from bringing a cause of action for breach of a written contract, breach of an express warranty, or for injuries resulting from defects in the materials or workmanship in the manufacture of a firearm.4 These exceptions to immunity do not apply in any other litigation brought by an individual against a firearms or ammunition manufacturer, trade association or dealer.5

For detailed information about government and private party lawsuits against the gun industry, the status of litigation involving gun industry immunity statutes in various states, or pending gun industry immunity legislation, visit the Brady Center’s Legal Action Project and the Coalition to Stop Gun Violence’s Gun Industry Immunity page.

See our Immunity Statutes policy summary for a comprehensive discussion of this issue.

 

  1. Tenn. Code Ann. § 39-17-1314(b). []
  2. Tenn. Code Ann. § 39-17-1314(c)(1). []
  3. Tenn. Code Ann. § 39-17-1314(c)(2). []
  4. Tenn. Code Ann. § 39-17-1314(c)(3). []
  5. Tenn. Code Ann. § 39-17-1314(d). []

Gun Shows in Tennessee

Posted on Tuesday, September 1st, 2015

Tennessee does not regulate gun shows. In fact, an exception to the prohibition on possessing certain proscribed weapons with the intent to go armed (not including most handguns and long guns)1 allows individuals to possess such firearms when conducting or attending “gun and knife shows” where the program has been approved by the administrator of the recreational building or property.2

See the  Tennessee Private Sales section for state laws that apply at gun shows.

See our Gun Shows policy summary for a comprehensive discussion of this issue.

  1. See Tenn. Code Ann. §§ 39-17-1302(a), 39-17-1311(a) (prohibited weapons include machine guns, short-barreled rifles or shotguns, and any other implements “for infliction of serious bodily injury or death” which have no lawful purpose). []
  2. Tenn. Code Ann. § 39-17-1311(b)(1)(J)(iii). []

Concealed Weapons Permitting in Tennessee

Posted on Tuesday, September 1st, 2015

See our  Concealed Weapons Permitting policy summary for a comprehensive discussion of this issue.

Tennessee prohibits the possession of a firearm “with the intent to go armed.”1 Persons with handgun carry permits are exempt.2 It is also a defense if the possession or carrying was at the person’s place of residence, place of business, or premises.3

Tennessee is a “shall issue” state, meaning that the Tennessee Department of Safety (“TDS”) must issue a handgun carry permit if the applicant meets certain qualifications. TDS shall issue a handgun carry permit to any resident or “permanent lawful resident” of Tennessee who is at least 21 years of age and is not prohibited from purchasing or possessing a firearm under federal or state law.4 Handgun carry permits will not be issued to any person who:5

  • Has been convicted of a criminal offense or is currently under indictment or information for any criminal offense that is designated as a felony, or that is a disqualifying misdemeanor for driving under the influence,6 stalking,7 or domestic violence,8 except for any federal or state offenses pertaining to antitrust violations, unfair trade practices, restraints of trade or other similar offenses relating to the regulations of business practices;
  • Is currently subject to any order of protection;
  • Is a fugitive from justice;
  • Is an unlawful user of or addicted to alcohol or any controlled substance and has been a patient in a rehabilitation program or hospitalized for alcohol or controlled substance abuse or addiction pursuant to a court order within ten years from the date of application ; or has been a voluntary patient in a rehabilitation program or hospitalized for alcohol or controlled substance abuse or addiction within three years from the date of application.
  • Has been convicted of driving under the influence of an intoxicant in this or any other state two or more times within ten years from the date of application and the convictions occurred within five years from the date of application or renewal;
  • Has been adjudicated as a mental defective;
  • Has been committed to or hospitalized in a mental institution;
  • Has had a court-appointed conservator by reason of a mental defect;
  • Has been judicially determined to be disabled by reason of mental illness, developmental disability or other mental incapacity;
  • Has, within seven years from the date of application, been found by a court to pose an immediate substantial likelihood of serious harm because of mental illness;
  • Is an alien and is illegally in the United States;
  • Has been discharged from the armed forces under dishonorable conditions;
  • Has renounced his or her United States citizenship;
  • Has been convicted of a misdemeanor crime of domestic violence as defined in federal law;
  • Is receiving social security disability benefits by reason of alcohol dependence, drug dependence or mental disability; or
  • Has been convicted of stalking.9

Firearm Safety Training

TDS requires applicants to submit proof of successful completion of a TDS-approved handgun safety course as a prerequisite to obtaining a handgun carry permit.10 The qualifying course must include both classroom hours and firing range instruction.11 A component of the classroom portion of all department-approved handgun safety courses must be instruction on alcohol and drugs, the effects of those substances on a person’s reflexes, judgment and ability to safely handle a firearm, and the Tennessee prohibition against possession of a handgun while under the influence.12 An applicant is not required to comply with the classroom hours and firing range provisions, however, if he or she submits proof to TDS that within five years from the application filing date, the applicant has:

  • Been certified by the peace officer standards and training commission;
  • Successfully completed training at the law enforcement training academy;
  • Successfully completed the firearm training course required for armed security guards or officer registration; or
  • Successfully completed all handgun training of not less than four hours as required by any branch of the military.13

Permit holders are not required to complete a handgun safety course to maintain or renew a handgun carry permit, or to complete any additional handgun safety course after obtaining a permit.14 In addition, no permit holder is required to complete any additional handgun safety course if he or she applies for a permit renewal within six months from the date of expiration.15

Duration & Renewal

Handgun carry permits are generally valid for five years.16 Permit holders may renew a permit by submitting a renewal application and a fee of $50.17 However, in 2015, Tennessee passed a law authorizing applicants who would otherwise meet the handgun carry permit qualification standards above to receive a lifetime handgun carry permit if they submit a one-time fee of $500.18 Every five years after issuance of the lifetime handgun carry permit, the Department of Public Safety must conduct a criminal history record check in the same manner as required for handgun carry permit renewals.19 A lifetime handgun carry permit will continue to be valid for the life of the permit holder unless the record check determines that the permit holder no longer meets the legal requirements.20 Upon discovery that a lifetime handgun carry permit holder no longer satisfies the requirements, the Department shall suspend or revoke the permit.21

Disclosure or Use of Information

TDS is required to make available to the public a statistical report that includes the number of permits issued, denied, revoked or suspended by TDS during the preceding month, listed by age, gender and zip code of the applicant or permit holder, and the reason for any permit revocation or suspension.22 The report must include the cost of the program, the revenues derived from fees, the number of violations of the provisions of the handgun carry permit law, and the average time for issuance of a handgun carry permit.23 By January 1 of each year, a copy of such statistical reports for the preceding calendar year shall be provided to each member of the Tennessee General Assembly.24

TDS is also required to maintain statistics related to responses by law enforcement agencies to incidents in which a person who has a handgun carry permit is arrested for any offense.25

Reciprocity

Any handgun permit, firearm permit, weapons permit or license issued by another state is valid in Tennessee according to its terms and shall be treated as if it is a handgun permit issued by Tennessee.26 This provision shall not be construed, however, to authorize the holder of any out-of-state permit or license to carry any firearm or weapon other than a handgun.27

The Tennessee Commissioner of Safety shall enter into written reciprocity agreements regarding the carrying of concealed firearms with other states that require the execution of such agreements.28 If another state imposes conditions on Tennessee permit holders in a reciprocity agreement, such conditions shall also become a part of the agreement and apply to the other state’s permit holders when they carry a handgun in Tennessee.29

 

  1. Tenn. Code Ann. § 39-17-1307(a)(1). []
  2. Tenn. Code Ann. § 39-17-1308(a)(2). []
  3. Tenn. Code Ann. § 39-17-1308(a)(3). []
  4. Tenn. Code Ann. § 39-17-1351(b). []
  5. These listed prohibitions can be found under Tenn. Code Ann. § 39-17-1351(c)(6) –(18). []
  6. Tenn. Code Ann. § 39-17-1351(c)(11). []
  7. Tenn. Code Ann. § 39-17-1351(c)(18). []
  8. Tenn. Code Ann. § 39-17-1351(c)(16). []
  9. Tenn. Code Ann. § 39-17-1351(p)(1). Additional application and background check requirements and other permit-related information are detailed throughout Tenn. Code Ann. § 39-17-1351. Permit suspension and revocation provisions are set forth at Tenn. Code Ann. §§ 39-17-1352, 39-17-1353 and 39-17-1354. []
  10. Tenn. Code Ann. § 39-17-1351(e). []
  11. Id. []
  12. Id. []
  13. Id. []
  14. Tenn. Code Ann. § 39-17-1351(m). []
  15. Id. []
  16. Tenn. Code Ann. § 39-17-1351(n). []
  17. Tenn. Code Ann. § 39-17-1351(q)(1). []
  18. 2015 TN H.B. 745, enacting Tenn. Code Ann. § 39-17-1351(x). []
  19. Id. []
  20. Id. []
  21. Id. []
  22. Tenn. Code Ann. § 39-17-1351(s)(1). []
  23. Id. []
  24. Id. []
  25. Tenn. Code Ann. § 39-17-1351(s)(2)(A). []
  26. Tenn. Code Ann. § 39-17-1351(r)(1). []
  27. Id. []
  28. Tenn. Code Ann. § 39-17-1351(r)(3)(A). []
  29. Id. Additional provisions regarding the reciprocity of concealed weapons permit holders are detailed under Tenn. Code Ann. § 39-17-1351(r). []

Reporting Lost or Stolen Firearms in Tennessee

Posted on Tuesday, September 1st, 2015

Tennessee does not require firearms owners to report the loss or theft of a firearm.

See our Reporting Lost or Stolen Firearms policy summary for a comprehensive discussion of this issue.

Tennessee State Law Summary

Posted on Tuesday, September 1st, 2015

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Among other things, Tennessee:

  • Conducts its own background checks on firearm purchasers, in some cases allowing 15 days for complete information to be obtained;
  • Prohibits domestic violence abusers from purchasing or possessing firearms, and requires abusers subject to protection orders to surrender all firearms for the duration of the order; and
  • Mandate that mental health records be reported to the database used for firearm purchaser background checks.

Tennessee does not, however:

In 2013, Tennessee had the 10th highest number of gun deaths per capita among the states.In addition, based on data published by Mayors Against Illegal Guns, in 2009 Tennessee supplied the 22nd highest number of crime guns to other states per capita, and exports more crime guns than it imports.
READ MORE »

Prohibited Purchasers Generally in Tennessee

Posted on Tuesday, September 1st, 2015

See our Prohibited Purchasers policy summary  for a comprehensive discussion of this issue.

Federal law prohibits certain persons from purchasing or possessing firearms, such as felons, certain domestic abusers, and certain people with a history of mental illness.

Tennessee law prohibits the possession of a firearm by any person:

  • Convicted of a felony involving the use or attempted use of force, violence or a deadly weapon;1
  • Convicted of a felony drug offense;2
  • Convicted of a misdemeanor crime of domestic violence while remaining subject to the disabilities of such a conviction;3
  • Possessing a firearm while subject to an order of protection;4
  • Under the influence of alcohol or any controlled substance (handguns only);5 or
  • Prohibited from possessing a firearm under any other provision of federal or state law6

Tennessee prohibits anyone convicted of a felony from possessing a handgun.7

Tennessee prohibits juveniles (persons under age 18) from knowingly possessing a handgun.8

In addition, Tennessee prohibits any person from selling a firearm to any person: 1) convicted of stalking;9 2) addicted to alcohol; 3) ineligible to receive a firearm under federal law; 4) judicially committed to a mental institution; or 5) adjudicated as a mental defective.10

For information on the background check process used to enforce these prohibitions, see the Tennessee Background Checks section.

  1. Tenn. Code Ann. § 39-17-1307(b)(1)(A). []
  2. Tenn. Code Ann. § 39-17-1307(b)(1)(B). []
  3. Tenn. Code Ann. § 39-17-1307(f)(1)(A). The crime of domestic violence, as applies to this section, is defined under federal law, 18 U.S.C. § 921(a)(33). []
  4. Tenn. Code Ann. § 39-17-1307(f)(1)(B). The order of protection must fully comply with federal law, 18 U.S.C. § 922(g)(8). []
  5. Tenn. Code Ann. § 39-17-1321(a). []
  6. Tenn. Code Ann. § 39-17-1307(f)(1)(C). []
  7. Tenn. Code Ann. § 39-17-1307(c). []
  8. Tenn. Code Ann. § 39-17-1319(b), (a)(2). []
  9. See Tenn. Code Ann. § 39-17-315. []
  10. Tenn. Code Ann. § 39-17-1316(a)(1). []