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 with broader statutes in Arizona, Florida, and Washington. Arizona and Washington expressly mentioned discharge, while Florida preempted the whole field of firearms regulation. The AG inferred from Tennessee's narrower wording that local governments retained authority to regulate discharge, subject to other 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.

Anyone reviewing a current discharge ordinance should check the present preemption statute, other state discharge rules, and the Tennessee Wildlife Resources Commission's current hunting rules. This opinion addresses the statutory wording in effect in 2013.

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 included "discharge" in its list of preempted subjects. Fla. Stat. Ann. § 790.33 preempted "the whole field of regulation of firearms and ammunition," while Wash. Rev. Code Ann. § 9.41.290 preempted "the entire field of firearms regulation" and included discharge in its list. The AG contrasted these broader provisions with Tennessee's list.

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 address shooting ranges or exceptions for them. It answered whether local governments may prohibit firearm discharge generally, subject to state statutes and regulations that regulate discharge.

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

The opinion does not discuss private property or target shooting specifically. It says a local government may prohibit discharge within its jurisdiction if the ordinance does not conflict with state statutes or regulations governing discharge, including the Wildlife Resources Commission's hunting rules.

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

The 2013 version of Tenn. Code Ann. § 39-17-1314(a) expressly preempted local regulation of firearm "possession," subject to the exception it identified in § 39-17-1311(d) for handguns in specified public places. This opinion does not analyze a particular possession ordinance.

What was the practical effect of the TWRA exception?

The AG cited an earlier opinion concluding that a municipal discharge ban could not be enforced against a person lawfully permitted by the Tennessee Wildlife Resources Agency to hunt within city limits. It did not analyze a particular hunting location, season, or prosecution.

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., Inc. v. Metro. Gov't of Nashville and Davidson County, 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, Inc. 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