Would Tennessee's proposed 'guns in parking lots' bill (SB142) replace or just add to the existing exceptions for firearms on school property?

Subject

Opinion No. 13-15, Possession of Firearms and Firearm Ammunition on School Property, February 22, 2013

Plain-English summary

The Chancellor of the Tennessee Board of Regents asked the AG to clarify the relationship between two pieces of Tennessee firearms law. Tenn. Code Ann. § 39-17-1309 generally prohibits possession of firearms on public or private school property, with two existing exceptions. Subsection (c)(1) carves out "nonstudent adults" who keep a firearm in their private vehicle. Subsection (e) carves out specific role-based categories: military, law enforcement, ROTC students, campus police, and registered security officers performing their official duties.

A 2013 bill, SB142, would have authorized handgun carry permit holders to transport and store firearms or ammunition in their privately owned vehicle in any "parking area," subject to conditions (vehicle properly parked; firearm out of ordinary observation when permit holder is in the vehicle; firearm locked in trunk or container when permit holder is not in the vehicle). The bill applied "notwithstanding" Tenn. Code Ann. § 39-17-1309. The question was whether that "notwithstanding" language would somehow erase the existing (c)(1) and (e) exceptions.

The AG said no. SB142 made no mention of the existing exceptions and showed no intent, express or implied, to repeal them. Implicit repeals are disfavored under Tennessee law; Hayes v. Gibson County and Cronin v. Howe require an "irreconcilable" conflict before a court will find an implied repeal. There was no such conflict here. SB142's new exception simply added another circumstance in which a person could lawfully have a firearm on school property, sitting alongside the existing (c)(1) and (e) carve-outs.

The AG's bottom line: if SB142 were enacted, the school-property firearms map would look like this. The general prohibition in § 39-17-1309(b)(1) would still apply. The existing (c)(1) exception for nonstudent adults' private vehicles would still apply. The existing (e) carve-outs for military, law enforcement, and similar officials would still apply. And the new SB142 exception for handgun carry permit holders parking on school grounds (subject to its conditions) would be added.

The opinion also flagged that this AG office had previously concluded in Op. 12-40 (March 20, 2012) that a similar bill was constitutionally defensible, separate from the implied-repeal question.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Tennessee has continued to amend its firearms-on-school-property rules in the years since 2013, including the 2014 enactment of a parking-lot bill in some form and later expansions involving K-12 teachers and other staff. The current text of § 39-17-1309 and any related provisions should be checked before applying this opinion's framework to a specific situation.

Background and statutory framework

The starting point is the general prohibition. Tenn. Code Ann. § 39-17-1309(b)(1) and (c)(1) make it a crime to possess or carry a firearm "in any public or private school building or bus, on any public or private school campus, grounds, recreation area, athletic field or any other property" used or operated by a board of education or other educational institution. The grade depends on intent: Class E felony if the person acts with intent to go armed; Class B misdemeanor otherwise.

Existing exceptions in (c)(1) and (e):

• Nonstudent adult in private vehicle. "[I]t is not an offense under this subsection (c) for a nonstudent adult to possess a firearm, if the firearm is contained within a private vehicle operated by the adult and is not handled by the adult, or by any other person acting with the expressed or implied consent of the adult, while the vehicle is on school property." § 39-17-1309(c)(1).
• Role-based carve-outs. Subsection (e) excepts U.S. and Tennessee National Guard military personnel on duty, federal civil officers in the discharge of their duties, militia/national guard in actual service, state and local law enforcement officers in their official duties, ROTC and certain instructional pupils, private police at colleges, and registered security officers under Title 62, Chapter 35.

SB142 would have added a new exception for handgun carry permit holders. The text of SB142 (Section 1) allowed a permit holder to transport and store a firearm or firearm ammunition in the permit holder's privately owned motor vehicle while on any public or private "parking area," provided the vehicle was parked where it could be and the firearm was kept from ordinary observation (and locked when the permit holder was not in the vehicle). "Parking area" was defined broadly but excluded the grounds of an owner-occupied or tenant-occupied single-family detached residence. The bill applied "[n]otwithstanding [§] 39-17-1309," signaling that the new exception would prevail over the general school-property prohibition.

The AG applied standard statutory-construction tools. Hannah and Eastman Chem. call for the plain and ordinary meaning of clear statutory language. Martin explains that a statute can be repealed expressly or by implication. Strode, Hayes v. Gibson County, and Cronin v. Howe establish that implied repeals are disfavored and recognized only when the conflict between two statutes is "irreconcilable." Here the (c)(1) and (e) exceptions weren't in conflict with SB142's new exception; the two coexisted comfortably.

Common questions

If I'm a parent dropping off a child at a Tennessee school and I'm a handgun carry permit holder, can I keep my gun in the car?

Under the AG's reading of SB142 (assuming it was enacted as analyzed, with conditions met), yes. The permit holder could keep a firearm in the parked vehicle so long as it was kept from ordinary observation while in the vehicle and locked in the trunk, glove box, or interior of the vehicle when the permit holder wasn't in it. Note that this opinion analyzes a bill, not the law actually in force today.

What about non-permit holders covered by the existing (c)(1) exception?

The "nonstudent adult" exception in (c)(1) continues to apply even after SB142. So a nonstudent adult could have a firearm in a private vehicle on school property even without a handgun carry permit, subject to the (c)(1) conditions (firearm contained in vehicle and not handled). SB142 didn't change that.

Does this mean an employee at a public university can leave a firearm in their car all day?

Within the SB142 framework, a permit holder employee could leave a firearm in their parked vehicle in the campus parking area subject to the conditions. The exception covers parking, not carrying around campus on foot. The general prohibition in § 39-17-1309(b)(1) still bars carrying firearms in the buildings or across school grounds.

What about ammunition?

SB142 was explicit that the new exception covered "firearm or firearm ammunition." So ammunition stored in the vehicle under the same conditions was covered.

Did the Board of Regents have other options to regulate firearms in campus parking lots?

The AG didn't reach that question. A public university operating under state law has limited authority to override a state-level exception by adopting a more restrictive campus policy, but the specifics depend on the source of the university's regulatory authority. Most state-statute exceptions of this type displace conflicting institutional policies, but the analysis turns on the statute's preemptive language.

What's the practical effect of the "notwithstanding" clause?

"Notwithstanding [§] 39-17-1309" means the new exception applies even if § 39-17-1309 would otherwise prohibit the conduct. It doesn't mean § 39-17-1309 is overridden in any broader sense. The general prohibition still applies in all the situations SB142 doesn't cover. The "notwithstanding" language just makes clear that the new exception isn't blocked by the general rule.

Citations

• Tenn. Code Ann. § 39-17-1309 (firearms on school property: general prohibition and existing exceptions)
• State v. Hannah, 259 S.W.3d 716 (Tenn. 2008) (statutory construction: plain meaning)
• Eastman Chem. Co. v. Johnson, 151 S.W.3d 503 (Tenn. 2004) (same)
• State v. Martin, 146 S.W.3d 64 (Tenn. 2004) (implied vs. express repeal)
• Hayes v. Gibson County, 288 S.W.3d 334 (Tenn. 2009) (implied repeals disfavored, requires irreconcilable conflict)
• Cronin v. Howe, 906 S.W.2d 910 (Tenn. 1995) (no implied repeal where statutes can stand together)
• Tenn. Att'y Gen. Op. 12-40 (March 20, 2012) (constitutional defensibility of similar bill)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-015.pdf

Original opinion text

S T A T E O F T E N N E S S E E
OFFICE OF THE
ATTORNEY GENERAL
PO BOX 20207
NASHVILLE, TENNESSEE 37202

February 22, 2013

Opinion No. 13-15

Possession of Firearms and Firearm Ammunition on School Property

QUESTION

Senate Bill 142/House Bill 118 of the 108th Tennessee General Assembly (hereinafter "SB142") would allow a handgun carry permit holder to transport and store firearms and ammunition in the holder's privately owned vehicle in any public or private parking lot under specified conditions. If enacted, would the language of SB142, which applies "notwithstanding" the provisions of Tenn. Code Ann. § 39-17-1309 governing carrying weapons on school property, supplant, repeal or otherwise render ineffective the language in Tenn. Code Ann § 39-17-1309(c)(1) that allows nonstudent adults to possess a firearm on campus in a private vehicle under specified conditions?

OPINION

No. SB142 does not explicitly or implicitly repeal or impact the current exceptions to the provisions of Tenn. Code Ann. § 39-17-1309 generally prohibiting the possession of firearms on school property. These exceptions are codified at Tenn. Code Ann. § 39-17-1309(c)(1) and Tenn. Code Ann. § 39-17-1309(e). Thus, if enacted, SB142 would authorize a handgun carry permit holder to transport and store a firearm or firearm ammunition in the permit holder's vehicle while in a parking area on school property, thereby adding another exception to the current exceptions listed in Tenn. Code Ann. § 39-17-1309.

ANALYSIS

Under present Tennessee law, with certain exceptions, it is a criminal offense to possess or carry a firearm, whether openly or concealed, "in any public or private school building or bus, on any public or private school campus, grounds, recreation area, athletic field or any other property owned, used or operated by any board of education, school, college or university board of trustees, regents or directors for the administration of any public or private educational institution." Tenn. Code Ann. §§ 39-17-1309(b)(1) & (c)(1). If the person acts with an intent to go armed, the conduct is a Class E felony; otherwise, it is a Class B misdemeanor. Tenn. Code Ann. §§ 39-17-1309(b)(2) & (c)(2).

The exceptions to this criminal offense are set forth at Tenn. Code Ann. § 39-17-1309(c)(1) and Tenn. Code Ann. § 39-17-1309(e), which specifically state as follows:

(c)(1) It is an offense for any person to possess or carry, whether openly or concealed, any firearm, not used solely for instructional or school-sanctioned ceremonial purposes, in any public or private school building or bus, on any public or private school campus, grounds, recreation area, athletic field or any other property owned, used or operated by any board of education, school, college or university board of trustees, regents or directors for the administration of any public or private educational institution. It is not an offense under this subsection (c) for a nonstudent adult to possess a firearm, if the firearm is contained within a private vehicle operated by the adult and is not handled by the adult, or by any other person acting with the expressed or implied consent of the adult, while the vehicle is on school property.

. . . .

(e) The provisions of subsections (b) and (c) do not apply to the following persons:

(1) Persons employed in the army, air force, navy, coast guard or marine service of the United States or any member of the Tennessee national guard when in discharge of their official duties and acting under orders requiring them to carry arms or weapons;

(2) Civil officers of the United States in the discharge of their official duties;

(3) Officers and soldiers of the militia and the national guard when called into actual service;

(4) Officers of the state, or of any county, city or town, charged with the enforcement of the laws of the state, when in the discharge of their official duties;

(5) Any pupils who are members of the reserve officers training corps or pupils enrolled in a course of instruction or members of a club or team, and who are required to carry arms or weapons in the discharge of their official class or team duties;

(6) Any private police employed by the administration or board of trustees of any public or private institution of higher education in the discharge of their duties; and

(7) Any registered security guard/officer who meets the requirements of title 62, chapter 35, and who is discharging the officer's official duties.

(Emphasis added).

If enacted, SB142 as currently proposed would allow "the holder of a valid handgun carry permit recognized in Tennessee" to transport and store a firearm or firearm ammunition in the permit holder's privately-owned motor vehicle while the permit holder is on or utilizing any public or private parking area if:

(1) The permit holder's vehicle is parked in a location where it is permitted to be; and

(2) The firearm or ammunition being transported or stored in the vehicle:

(A) Is kept from ordinary observation if the permit holder is in the motor vehicle; or

(B) Is kept from ordinary observation and locked within the trunk, glove box, or interior of the person's privately owned motor vehicle or a container securely affixed to such vehicle if the permit holder is not in the vehicle.

SB142, § 1. A "parking area" is defined as "any property provided by a business entity, public or private employer, or the owner, manager, or legal possessor of the property for the purpose of permitting its invitees, customers, clients or employees to park privately-owned motor vehicles." Id. A "parking area" does not include "the grounds or property of a owner-occupied, single-family detached residence, or a tenant-occupied single-family detached residence." Id. SB142 does not modify or amend Tenn. Code Ann. § 39-17-1309 but would apply "[n]otwithstanding [§] 39-17-1309." Id.

[Footnotes: This Opinion is based on SB142, as amended, which passed the Senate on Feb. 11, 2013. This Office has previously opined that a bill similar to SB142 is constitutionally defensible. Tenn. Att'y Gen. Op. 12-40 (March 20, 2012).]

When construing a statute, such as SB142 if enacted, a reviewing court must "ascertain and give effect to the intention and purpose of the legislature," which is derived "'whenever possible from the natural and ordinary meaning of the language used, without forced or subtle construction that would limit or extend the meaning of the language.'" State v. Hannah, 259 S.W.3d 716, 721 (Tenn. 2008) (quoting Lipscomb v. Doe, 32 S.W.3d 840, 844 (Tenn. 2000)). "When the statutory language is clear and unambiguous, [the court] must apply its plain meaning in its normal and accepted use, without a forced interpretation that would limit or expand the statute's application." Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004).

Construing the plain and ordinary meaning of the clear and unambiguous language utilized in SB142 and applying such language to school property, SB142 carves out an additional exception to the present prohibition of firearms and firearm ammunition on school property set forth in Tenn. Code Ann. § 39-17-1309. If all the requirements of SB142 are satisfied, then the holder of a valid handgun carry permit recognized in Tennessee could transport and store a firearm or firearm ammunition in the permit holder's vehicle on school property.

This new exception to the criminal offense outlined in Tenn. Code Ann. § 39-17-1309 does not explicitly or implicitly repeal the current exceptions existing at Tenn. Code Ann. §§ 39-17-1309(c)(1) & (e). See State v. Martin, 146 S.W.3d 64, 73 (recognizing that a "statute may be repealed by a subsequent statute either expressly or by implication"). SB142 makes no mention of these current exceptions and evidences no explicit legislative intent to repeal these exceptions. See State v. Strode, 232 S.W.3d 1, 9 (Tenn. 2007) (stating the general rule that a statute should be construed to "ascertain and give effect to the legislative intent without unduly restricting or expanding a statute's coverage beyond its intended scope"). Nor is there any irreconcilable conflict between SB142 and the current exceptions to the criminal offense set forth by Tenn. Code Ann. § 39-17-1309 that would create an implicit repeal of any of these exceptions by the passage of SB142. Implicit repeals are disfavored, and "will be recognized only when no fair and reasonable construction will permit the statutes to stand together." Hayes v. Gibson County, 288 S.W.3d 334, 337-38 (Tenn. 2009) (quoting Cronin v. Howe, 906 S.W.2d 910, 912 (Tenn. 1995)). Repeals by implication will only be found "when the conflict between the statutes is irreconcilable." Id. at 338.

Here, while the various exceptions listed in current law and created by SB142 may overlap with each other, they are not inconsistent or in conflict with each other, and the fact that a person may come within more than one exception poses no disruption in the harmonious operation of the provisions of this statute.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

JOHN H. BLEDSOE
Senior Counsel

Requested by:

The Honorable John G. Morgan
Chancellor, Tennessee Board of Regents
1415 Murfreesboro Road, Suite 340
Nashville, Tennessee 37217