Can someone with a felony or domestic violence conviction in Tennessee get a hunting license, and can they hunt with a firearm?

Subject

Opinion No. 15-33, License to Hunt and Possession of Firearms, April 10, 2015

Plain-English summary

A state senator asked the AG a battery of questions about whether people with criminal histories can hunt in Tennessee, and what weapons they can use. The opinion answered six questions in detail.

A hunting license itself is open to anyone who meets the basic age, fee, and (for those born after January 1, 1969) hunter-education requirements. Neither the wildlife statutes nor the Tennessee Fish and Wildlife Commission's rules disqualify a person based on a felony or domestic-violence conviction.

But hunting with a firearm is a different question, and the answer depends on the type of conviction. Tenn. Code Ann. § 39-17-1307 imposes firearms disabilities. Anyone convicted of a felony involving force or violence, or a drug felony, cannot possess a firearm at all. Tenn. Code Ann. § 39-17-1308(a)(4) creates a hunting defense, but that defense is not available to those violent/drug felons (§ 39-17-1308(b)). Anyone with a non-violent, non-drug felony or a misdemeanor domestic-violence conviction has the hunting defense available, but federal law (18 U.S.C. § 922(g)) may still bar firearm possession. Archery equipment is never a "firearm," so it is unaffected by these prohibitions. A non-felon supervising adult is required to be present if a juvenile is hunting under an apprentice license, and that adult's ability to lawfully possess a firearm tracks their own criminal history.

Currency note

This opinion was issued in 2015. 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.

Background and statutory framework

Hunting licenses are governed by Tenn. Code Ann. §§ 70-2-101 to -226, with age and fee schedules in § 70-2-201 (residents) and § 70-2-202 (nonresidents). Hunter education is in § 70-2-108. The TFWC sets specific weapon and ammunition types by proclamation under § 70-4-107.

Tenn. Const. art. XI, § 13, as amended in 2010, provides "[t]he citizens of this state shall have the personal right to hunt and fish, subject to reasonable regulations and restrictions prescribed by law." Tenn. Const. art. I, § 26, lets the legislature "regulate the wearing of arms with a view to prevent crime." A hunting license is not a license to carry firearms; firearms disabilities are separate.

Tenn. Code Ann. § 39-17-1307 imposes layered disabilities:

• Subsection (b)(1): violent/drug felons cannot possess a firearm at all.
• Subsection (c)(1): any felon cannot possess a handgun.
• Subsection (f)(1)(A): persons subject to a misdemeanor domestic-violence disability under 18 U.S.C. § 921 cannot possess a firearm.

Tenn. Code Ann. § 39-17-1308(a)(4) creates a defense for possession or carrying "incident to lawful hunting." But § 39-17-1308(b) cuts that defense off for violent/drug felons.

The Tennessee Supreme Court has held that restoration of civil rights does not lift the firearms disability for someone convicted of a violent felony. State v. Johnson, 79 S.W.3d 522, 528 (Tenn. 2002). The same applies to drug felons (State v. Ferguson, 106 S.W.3d 665 (Tenn. Ct. App. 2003)), with a narrow exception for Schedule VI drug felonies more than ten years old, where the carry-permit statute § 39-17-1351(j)(3) permits restoration. Smith v. State, 2012 WL 2914178 (Tenn. Ct. App. 2012).

Expungement under Tenn. Code Ann. § 40-32-101(g) for certain low-grade (Class E) felonies removes the firearms disability. A pardon for a nonviolent felony under § 40-32-101(h) can also restore firearm rights (Blackwell v. Haslam, 2013 WL 3379364 (Tenn. Ct. App. 2013)).

Black-powder firearms are treated as firearms under Tennessee law (§ 39-17-1307 references § 39-11-106's firearm definition), unlike federal law, which exempts antique muzzleloaders. So a violent/drug felon cannot hunt with black-powder arms in Tennessee even though federal law might not bar it.

Federal firearm-disability triggers (18 U.S.C. § 922(g)(1)) apply to convictions punishable by more than one year, with carve-outs for certain misdemeanors and business-regulation offenses. Tennessee's felony definition (Tenn. Code Ann. § 39-11-110) is broader, so a Tennessee firearms disability can attach in some cases where federal law would not.

People under 18 cannot knowingly possess a handgun (§ 39-17-1319(b)), with defenses in subsection (d). People under 21 cannot get a handgun carry permit (§ 39-17-1351(b)). Federally licensed dealers cannot sell handguns to anyone under 21 (18 U.S.C. § 922(b)(1)). Tennessee law (§ 39-17-1316(q)(1)) prohibits a person from purchasing a firearm knowing they are barred by state or federal law.

Common questions

Can a felon get a Tennessee hunting license?
Yes. Hunting-license eligibility has no felony or domestic-violence bar.

Can a felon hunt with a firearm?
It depends on the type of felony. Violent felons and drug felons cannot possess firearms even while hunting; the statutory hunting defense is unavailable to them. Other felons may have the hunting defense available under § 39-17-1308(a)(4), but federal law may still prohibit firearm possession.

What about black-powder weapons or muzzleloaders?
Tennessee treats them as firearms for the § 39-17-1307 disability. Federal law sometimes treats antique muzzleloaders differently. The state-law disability still applies in Tennessee.

What about archery?
A bow does not meet Tennessee's "firearm" definition (§ 39-11-106). So a felony or DV conviction does not block archery hunting. (Crossbows, longbows, recurves, and compounds are all legal archery hunting devices under TFWC Proclamation No. 13-08.)

Can a felon supervise a juvenile hunter?
Only if the juvenile is hunting with archery or another non-firearm device. Apprentice hunting licenses for juveniles require adult supervision, and supervising an armed juvenile means the adult must be able to lawfully possess the firearm. For violent/drug felons, that means no firearm supervision is lawful, but archery supervision is fine.

Does restoration of rights or expungement remove the firearm disability?
Sometimes. Restoration alone does not remove the disability for violent felons (Johnson) or drug felons (Ferguson), except in the narrow Schedule VI 10-year-old window. Expungement under § 40-32-101(g) of an eligible Class E felony removes the disability. A pardon for a nonviolent felony under § 40-32-101(h) plus expungement also can restore rights.

Citations

Tenn. Code Ann. §§ 70-2-101, -201, -202; § 39-17-1307, -1308, -1351; § 40-32-101; § 39-11-106, -110; 18 U.S.C. §§ 921, 922; State v. Johnson, 79 S.W.3d 522 (Tenn. 2002); State v. Ferguson, 106 S.W.3d 665 (Tenn. Ct. App. 2003); Smith v. State, 2012 WL 2914178 (Tenn. Ct. App. 2012); Blackwell v. Haslam, 2013 WL 3379364 (Tenn. Ct. App. 2013); Keough v. State, 356 S.W.3d 366 (Tenn. 2011).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2015/op15-33.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
April 10, 2015
Opinion No. 15-33

License to Hunt and Possession of Firearms

Question 1

May a person who has been convicted of a felony or an offense involving domestic violence, with or without a subsequent restoration of rights, expungement or pardon, obtain a hunting license in Tennessee?

Opinion 1

Yes. Neither the wildlife statutes nor the rules promulgated thereunder disqualify a person convicted of a felony or an offense involving domestic violence from obtaining a hunting license.

Question 2

If a person who has been convicted of a felony or an offense involving domestic violence, with or without a subsequent restoration of rights, expungement or pardon, obtains a hunting license, are there any restrictions upon the type of weapon (e.g., modern firearm, archery equipment, black-powder arms) such person may use for hunting?

Opinion 2

As a general matter, a person convicted of a felony or a misdemeanor crime of domestic violence is subject to the prohibitions against the possession of firearms or handguns in Tenn. Code Ann. § 39-17-1307. While it is a defense to the application of § 39-17-1307 if the possession or carrying was incident to lawful hunting, this defense is not available to persons convicted of a violent felony or a drug felony. The restoration of citizenship rights or the expunction of such convictions might remove the firearms disability under limited circumstances. Such persons would not be restricted from hunting with lawful archery equipment.

Question 3

May an adult who has been convicted of a felony or an offense involving domestic violence, with or without a subsequent restoration of rights, expungement or pardon, lawfully supervise a juvenile who is hunting under a license that permits adult supervision?

Opinion 3

When a juvenile is authorized to hunt under a license requiring adult supervision and the juvenile wishes to hunt with a firearm, an adult's ability to lawfully supervise the juvenile will depend upon the adult's ability to lawfully possess a firearm while hunting.

Question 4

May a person who has been convicted of a felony or an offense involving domestic violence lawfully, with or without a subsequent restoration of rights, expungement or pardon, possess any type of archery equipment, black-powder firearm, or other firearm?

Opinion 4

This question is answered in Opinion 2 above.

Question 5

If a person has been convicted of a crime that does not impose a disability against owning firearms under 18 U.S.C. § 922(g) because the crime was not an offense that is punishable by imprisonment by a term exceeding one year, as that term is defined in 18 U.S.C. § 921(a)(20), is that person prohibited from possessing a firearm under Tenn. Code Ann. § 39-17-1307 or some other provision of state law, with or without a subsequent restoration of rights, expungement or pardon?

Opinion 5

Because Tennessee's definition of a felony varies from the federal definition, it is possible for a person with a particular conviction to be prohibited from possessing a firearm or a handgun under Tenn. Code Ann. § 39-13-1307 even though the possession would not be prohibited under 18 U.S.C. § 922(g)(1).

Question 6

Under what circumstances may an individual under the age of twenty-one legally possess or own a firearm in Tennessee?

Opinion 6

Tennessee law expressly prohibits a person under 18 from knowingly possessing a handgun, though there are several defenses to prosecution for this offense. Tennessee law does not expressly prohibit a person under 21 from owning or possessing a firearm, but it does prohibit a person from purchasing a firearm knowing that he or she is prohibited from doing so under federal law, and federal law prohibits the sale of a firearm (other than a shotgun or rifle) to a person under 21.

ANALYSIS

1. The licensure provisions for hunting wildlife in Tennessee are codified at Tenn. Code Ann. §§ 70-2-101 to -226. It is unlawful to hunt in Tennessee without the requisite license. Tenn. Code Ann. §§ 70-2-101(a), -102(a). While the General Assembly has established certain exemptions to this general hunting-license requirement (e.g., certain state residents born before March 1, 1926, and landowners and tenants hunting on their own farmlands), it has enacted only minimal qualifications for obtaining a hunting license. Neither the wildlife statutes nor the regulations promulgated thereunder by the Tennessee Fish and Wildlife Commission (TFWC) contain any provisions disqualifying persons convicted of a felony or an offense involving domestic violence from obtaining a hunting license or using a lawful hunting weapon.

2 and 4. Article XI, § 13, of the Tennessee Constitution, which governs the protection and preservation of game and fish, was amended in 2010 to include the following pertinent language: "The citizens of this state shall have the personal right to hunt and fish, subject to reasonable regulations and restrictions prescribed by law. The recognition of this right does not abrogate any private or public property rights, nor does it limit the state's power to regulate commercial activity. Traditional manners and means may be used to take non-threatened species."

At the same time, Article I, § 26, of the Tennessee Constitution authorizes the legislature "to regulate the wearing of arms with a view to prevent crime." A hunting license is not a license to carry or possess firearms, and Tennessee statutes impose specific disabilities regarding the possession and carrying of firearms on persons convicted of certain crimes.

It is unlawful for anyone convicted of a felony drug offense or a felony "involving the use or attempted use of force, violence, or a deadly weapon" to possess a firearm. Tenn. Code Ann. § 39-17-1307(b)(1). It is also unlawful for anyone convicted of any felony to possess a handgun. Id. § 39-17-1307(c)(1). And it is unlawful for anyone convicted of a misdemeanor crime of domestic violence to possess a firearm. Id. § 39-17-1307(f)(1)(A). It is a defense to the application of § 39-17-1307 if the possession or carrying was "[i]ncident to lawful hunting." Id. § 39-17-1308(a)(4). But this defense is not available to persons described in § 39-17-1307(b)(1), i.e., those convicted of a drug felony or a felony involving the use of force or violence. Id. § 39-17-1308(b). These persons would therefore be prohibited from using any firearm, including any black-powder arms, while hunting. Such persons would not, however, be restricted from hunting through the use of lawful archery equipment, which would not meet the definition of a "firearm."

The Tennessee Supreme Court has held that the legislature intended that a person who has been convicted of a felony involving the use of force or violence "cannot possess a handgun, even where his or her citizenship rights have been restored pursuant to Tenn. Code Ann. § 40-29-101, et seq." State v. Johnson, 79 S.W.3d 522, 528 (Tenn. 2002). The holding in Johnson applies as well to one convicted of a felony drug offense, State v. Ferguson, 106 S.W.3d 665, 667 (Tenn. Ct. App. 2003), but the law appears to recognize an exception for a felony drug offense that is more than 10 years old and involved a Schedule VI drug.

Tennessee Code Annotated § 39-17-1351 is the handgun-carry-permit statute, and under subdivision (j)(3) of that statute, no permit application shall be denied if the applicant's full rights of citizenship have been restored, except for certain listed offenses. The excepted offenses include felony drug offenses involving Schedule VI drugs but only where "the offense occurred within ten (10) years of the date of application or renewal." See Smith v. State, 2012 WL 2914178 (Tenn. Ct. App. July 17, 2012). Under the rules of statutory construction, a specific provision of a statute prevails over a conflicting general provision, even if the conflict were to arise within the same statute. Keough v. State, 356 S.W.3d 366, 371 (Tenn. 2011); Woodroof v. City of Nashville, 183 Tenn. 483, 488, 192 S.W.2d 1013, 1015 (1946). Therefore, the specific provision in § 39-17-1351(j)(3) prevails over the general provisions of §§ 39-17-1307(b)(1)(B) and 39-17-1308(b).

Under Tenn. Code Ann. § 40-32-101(g), persons who have been convicted of some low-grade (i.e., Class E) felonies, including certain drug felonies, may be eligible to seek expunction of their offense. If the offender is able to obtain an expunction under this subsection, the firearms disability will be removed. A pardon would enable a person with a nonviolent felony drug offense to obtain an expunction and the restoration of his or her right to possess a firearm. Tennessee Code Annotated § 40-32-101(h) permits "a person who was convicted of a nonviolent crime after January 1, 1980" to petition to have his record expunged and his firearm rights restored if he receives an executive pardon for his crime. See Blackwell v. Haslam, 2013 WL 3379364, at 11, 15 (Tenn. Ct. App. June 28, 2013).

3. A number of Tennessee regulations apply to hunters under the age of 17, some of whom must be accompanied by a qualified adult 21 years of age or older in order to hunt. For example, juveniles who are 10 years of age or older are eligible for an "apprentice hunting license" requiring adult supervision if they have not completed the mandatory hunter-education course as required in Tenn. Code Ann. § 70-2-108. The requirement of adult accompaniment or supervision contemplates that the adult must have access to the hunting weapon to be used by the juvenile. Indeed, current wildlife proclamations concerning youth hunts specify that the accompanying adult "must remain in a position to take immediate control of the hunting device."

When a juvenile is authorized to hunt under a license requiring adult supervision and the juvenile wishes to hunt with a firearm, an adult's ability to lawfully supervise that juvenile will therefore depend upon the adult's ability to lawfully possess a firearm while hunting. The ability of a person who has been convicted of a felony or a domestic-violence offense to lawfully possess a firearm while hunting is discussed above. If the juvenile wishes to hunt with lawful archery equipment, however, the same adult may lawfully provide supervision.

5. Federal law prohibits a person from possessing a firearm if he or she has been convicted of a crime punishable by imprisonment for a term exceeding one year. 18 U.S.C. § 922(g)(1). A "crime punishable by imprisonment for a term exceeding one year" does not include offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or any state offense classified as a misdemeanor and punishable by a term of imprisonment of two years or less. 18 U.S.C. § 921(a)(20).

As discussed above, Tenn. Code Ann. § 39-13-1307(b) and (c) prohibit a person who has been convicted of certain felonies from possessing a firearm or a handgun. Felonies are "[a]ll violations of law that may be punished by one (1) year or more of confinement or by the infliction of the death penalty." Tenn. Code Ann. § 39-11-110. Because Tennessee's definition of a felony varies from the federal definition, it is possible for a person with a particular conviction to be prohibited from possessing a firearm or a handgun under § 39-13-1307 even though the possession would not be prohibited under federal law. Also, because § 39-13-1307(f)(1) further prohibits the possession of a firearm by a person who has been convicted of a misdemeanor crime of domestic violence (as does federal law), the fact that a particular conviction does not satisfy the federal definition of a felony under 18 U.S.C. § 921 would not remove the firearms disability imposed by subdivision (f)(1) of the Tennessee statute.

6. Tennessee law does not expressly prohibit a person under 21 years of age from owning or possessing a firearm. Federal law, however, prohibits a federally licensed firearm dealer from selling a handgun to a person under 21. See 18 U.S.C. § 922(b)(1). And Tenn. Code Ann. § 39-17-1316(q)(1) prohibits a person from purchasing a firearm "knowing that the person is prohibited by state or federal law from owning, possessing or purchasing a firearm." Tennessee law also prohibits a person under 21 from obtaining a handgun carry permit. See id. § 39-17-1351(b).

Tennessee law does expressly prohibit a person under 18 years of age (i.e., a juvenile) from knowingly possessing a handgun, Tenn. Code Ann. § 39-17-1319(b), though there are several defenses to prosecution for this offense, see id. § 39-17-1319(d).

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

MICHAEL A. MEYER
Deputy Attorney General

ELIZABETH P. McCARTER
Senior Counsel

Requested by:
The Honorable Mae Beavers
State Senator
6 Legislative Plaza
Nashville, Tennessee 37243-0223