Can a Tennessee city or county prohibit shooting guns within its borders?

Subject

Opinion No. 13-66, Local Government Prohibition of the Discharge of Firearms, August 23, 2013

Plain-English summary

Sen. Randy McNally asked whether a Tennessee local government could ban the discharge of firearms within its boundaries. The AG concluded yes, with one major qualifier: the local ordinance could not conflict with state statutes or with the Tennessee Wildlife Resources Commission's rules permitting hunting.

The AG's reasoning turned on the firearms preemption statute, Tenn. Code Ann. § 39-17-1314(a). That section barred cities, counties, and metropolitan governments from "occupy[ing] any part of the field of regulation of the transfer, ownership, possession or transportation of firearms." The General Assembly listed those four areas specifically and did not include "discharge." Under the expressio unius canon (mention of one thing implies exclusion of others), the omission meant the legislature did not preempt local discharge ordinances.

The AG compared Tennessee's preemption statute to broader preemption statutes in Arizona, Florida, and Washington, each of which expressly preempted discharge. Tennessee's narrower wording was a deliberate choice. The result was that the general municipal police power, recognized in Porter v. City of Paris (1947), allowed local governments to impose additional safety rules so long as they did not contradict state law.

The one important limit: a discharge ban could not override the Tennessee Wildlife Resources Agency's authority to permit hunting. Prior AG opinions (Op. 98-038, Op. 78-248) held that a city ordinance prohibiting firearms discharges could not be enforced against a hunter lawfully permitted by TWRA to hunt within the city limits. That overlap was governed by state wildlife law, not by city ordinance.

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's firearms preemption framework has been amended multiple times since 2013. Anyone reviewing or drafting a current local discharge ordinance should pull the current preemption statute, check the current TWRA regulations, and review later AG opinions and case law that may have refined the boundaries between local police power and state firearms law.

Background and statutory framework

Municipal police power. Tennessee law recognizes that "[t]he police power of a state, or of a municipality as an arm of the state, extends to the making of such laws and ordinances as are necessary to secure the safety, health, good order, peace, comfort, protection, and convenience of the state or municipality." Porter v. City of Paris, 184 Tenn. 555, 557, 201 S.W.2d 688, 689 (1947). A municipality has wide discretion in exercising police powers but "cannot adopt ordinances which infringe the spirit of a state law or are repugnant to the general policy of the state." Capitol News Co., Inc. v. Metro. Gov't of Nashville and Davidson County, 562 S.W.2d 430, 434 (Tenn. 1978).

The Tennessee firearms preemption statute. Tenn. Code Ann. § 39-17-1314(a) provided:

Except as provided in § 39-17-1311(d), which allows counties and municipalities to prohibit the possession of handguns while within or on a public park, natural area, historic park, nature trail, campground, forest, greenway, waterway or other similar public place that is owned or operated by a county, a municipality or instrumentality thereof, no city, county, or metropolitan government shall occupy any part of the field of regulation of the transfer, ownership, possession or transportation of firearms, ammunition or components of firearms or combinations thereof; provided, that this section shall be prospective only and shall not affect the validity of any ordinance or resolution lawfully enacted before April 8, 1986.

Compare other states. Ariz. Rev. Stat. Ann. § 13-3108 preempted local regulation of "transportation, possession, carrying, sale, transfer, purchase, acquisition, gift, devise, storage, licensing, registration, discharge or use of firearms." Fla. Stat. Ann. § 790.33 preempted "the whole field of regulation of firearms and ammunition," and Wash. Rev. Code Ann. § 9.41.290 preempted "the entire field of firearms regulation," each explicitly mentioning discharge. Tennessee's narrower list was meaningful.

Wildlife law overlap. Tenn. Att'y Gen. Op. 98-038 (Feb. 9, 1998) concluded that a municipal discharge ordinance could not be enforced against a hunter lawfully permitted by TWRA. Tenn. Att'y Gen. Op. 78-248 (June 16, 1978) reached the same result for TWRC proclamations.

Common questions

Did this opinion mean cities could ban shooting ranges?

The opinion did not directly address ranges. It addressed prohibition of the act of "discharge." A range fires legally permitted firearms in a controlled setting, so the typical analysis would consider whether the city's discharge ordinance contained exceptions for licensed ranges, hunting, self-defense, and similar uses. Most well-drafted ordinances did.

Could a city ban discharge on private property the owner uses for target shooting?

Under this opinion, yes, as long as the ordinance applied evenly and didn't conflict with state wildlife or self-defense law. The municipal police power reached private land within the city limits.

What if the city ordinance was written to ban "possession" of firearms outside the home?

That would have been flatly preempted. Tenn. Code Ann. § 39-17-1314(a) explicitly removed local authority over "possession." Only discharge, plus the narrow handguns-in-public-parks exception in § 39-17-1311(d), were left to local rule.

What was the practical effect of the TWRA exception?

A city could prohibit shooting in subdivisions, parks, and similar congested areas. But if TWRA opened a hunting season for, say, deer, in a wildlife management area inside city limits, a hunter with a valid hunting license discharging a firearm in compliance with TWRA rules could not be prosecuted under the city discharge ordinance.

What canon of statutory interpretation drove the result?

Expressio unius est exclusio alterius, codified by the Tennessee Supreme Court in Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73, 84 (Tenn. 2001). When a statute specifies a list, the unstated items are presumed excluded. The General Assembly listed four areas of preemption and omitted discharge, so discharge stayed with local government.

Citations

Tenn. Code Ann. §§ 39-17-1314(a), 39-17-1311(d). Comparator statutes: Ariz. Rev. Stat. Ann. § 13-3108; Fla. Stat. Ann. § 790.33; Wash. Rev. Code Ann. § 9.41.290. Cases: Porter v. City of Paris, 184 Tenn. 555, 201 S.W.2d 688 (1947); Capitol News Co. v. Metro. Gov't of Nashville, 562 S.W.2d 430 (Tenn. 1978); Nichols v. Tullahoma Open Door, Inc., 640 S.W.2d 13 (Tenn. Ct. App. 1982); Owens v. State, 908 S.W.2d 923 (Tenn. 1995); Carson Creek Vacation Resorts v. State, Dept. of Revenue, 865 S.W.2d 1 (Tenn. 1993); Brown v. Erachem Comilog, 231 S.W.3d 918 (Tenn. 2007); Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73 (Tenn. 2001); Southern Ry. Co. v. City of Knoxville, 223 Tenn. 90, 442 S.W.2d 619 (1968). Prior AG opinions: Op. 98-038 (Feb. 9, 1998); Op. 78-248 (June 16, 1978).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-066.pdf

Original opinion text

August 23, 2013

Opinion No. 13-66

Local Government Prohibition of the Discharge of Firearms

QUESTION

May a local government entity prohibit by ordinance the discharge of firearms within its jurisdiction?

OPINION

Yes, so long as the local ordinance does not conflict with Tennessee statutes or regulations that regulate the discharge of firearms, including proclamations, rules, and regulations of the Tennessee Wildlife Resources Commission related to permitted hunting in areas under its jurisdiction.

ANALYSIS

The law of Tennessee recognizes "[t]he police power of a state, or of a municipality as an arm of the state, extends to the making of such laws and ordinances as are necessary to secure the safety, health, good order, peace, comfort, protection, and convenience of the state or municipality." Porter v. City of Paris, 184 Tenn. 555, 557, 201 S.W.2d 688, 689 (1947) (citations omitted). A municipality has wide discretion and broad authority in exercising its police powers. Id. However, a municipality "cannot adopt ordinances which infringe the spirit of a state law or are repugnant to the general policy of the state." Capitol News Co., Inc. v. Metro. Gov't of Nashville and Davidson County, 562 S.W.2d 430, 434 (Tenn. 1978). See also Nichols v. Tullahoma Open Door, Inc., 640 S.W.2d 13, 18 (Tenn. Ct. App. 1982). A state statute preempts a municipal ordinance when either the language in the ordinance contradicts the language in the statute or when the legislature has intended to thoroughly occupy the field. The preemption doctrine flows from the principle that municipal legislation is invalid if it is repugnant to, or inconsistent with, state law. 56 Am. Jur. 2d Municipal Corporations § 316 (May 2013).

The General Assembly has expressly preempted local regulation of the "transfer, ownership, possession or transportation" of firearms and ammunition under Tenn. Code Ann. § 39-17-1314(a), which provides:

Except as provided in § 39-17-1311(d), which allows counties and municipalities to prohibit the possession of handguns while within or on a public park, natural area, historic park, nature trail, campground, forest, greenway, waterway or other similar public place that is owned or operated by a county, a municipality or instrumentality thereof, no city, county, or metropolitan government shall occupy any part of the field of regulation of the transfer, ownership, possession or transportation of firearms, ammunition or components of firearms or combinations thereof; provided, that this section shall be prospective only and shall not affect the validity of any ordinance or resolution lawfully enacted before April 8, 1986.

A basic principle of statutory construction is to ascertain and give effect to legislative intent, 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. Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995); Carson Creek Vacation Resorts, Inc. v. State, Dept. of Revenue, 865 S.W.2d 1, 2 (Tenn. 1993). If a statute is clear and unambiguous, courts will find the intent in the plain and ordinary meaning of its language. Brown v. Erachem Comilog, Inc., 231 S.W.3d 918, 921 (Tenn. 2007). One well-established canon, expressed under the maxim "expressio unius est exclusio alterius," is that the mention of one thing implies the exclusion of all things not expressly mentioned. Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73, 84 (Tenn. 2001).

By the plain language of Tenn. Code Ann. § 39-17-1314(a), the General Assembly removed from local governments the authority to regulate the "transfer, ownership, possession or transportation" of firearms, except as specifically provided therein. The statute's failure to include any reference to the discharge of firearms, or otherwise indicate its intent to occupy the entire field of firearms regulation, supports an inference that the General Assembly intentionally excluded that area from the preemption statute. Compare Tenn. Code Ann. § 39-17-1314(a) with Ariz. Rev. Stat. Ann. § 13-3108 ("Except as provided in subsection F of this section, a political subdivision of this state shall not enact any ordinance, rule or tax relating to the transportation, possession, carrying, sale, transfer, purchase, acquisition, gift, devise, storage, licensing, registration, discharge or use of firearms.") (emphasis added); Fla. Stat. Ann. § 790.33 ("[t]he Legislature hereby declares that it is occupying the whole field of regulation of firearms and ammunition, including the purchase, sale, transfer, taxation, manufacture, ownership, possession, storage, and transportation thereof, to the exclusion of all existing and future county, city, town, or municipal ordinances.") (emphasis added) and Wash. Rev. Code Ann. § 9.41.290 ("The state of Washington hereby fully occupies and preempts the entire field of firearms regulation within the boundaries of the state, including the registration, licensing, possession, purchase, sale, acquisition, transfer, discharge, and transportation of firearms.") (emphasis added).

Accordingly, the exclusion of the discharge of firearms from those areas expressly delineated within the preemption statute indicates the General Assembly's intent that local governments should retain the authority to regulate that matter within their respective jurisdictions. This interpretation is consistent with the general rule that a municipality may exact additional requirements in the exercise of its general police powers beyond those imposed under general law so long as there is no conflict between the two. See, e.g., Southern Ry. Co. v. City of Knoxville, 223 Tenn. 90, 98-99, 442 S.W.2d 619, 622 (1968).

However, the local authority to regulate the discharge of firearms is limited to the extent that such local legislation cannot conflict with any other State statute or regulation. For example, this Office previously opined that a municipal ordinance prohibiting firearms discharges would not be enforceable against an individual who has been lawfully permitted to engage in hunting within the city limits by the Tennessee Wildlife Resources Agency pursuant to its exclusive authority to administer and enforce Tennessee wildlife statutes, regulations, and proclamations. Tenn. Att'y Gen. Op. 98-038 (Feb. 9, 1998). See also Tenn. Att'y Gen. Op. 78-248 (June 16, 1978) (concluding that proclamations of Tennessee Wildlife Resources Commission prevail over city ordinances in determining permitted hunting usage of areas in question).

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

TROY A. McPEAK
Assistant Attorney General

Requested by:

The Honorable Randy McNally
State Senator
301 6th Avenue North
Nashville, Tennessee 37243-6806