Do private Tennessee gun sales between two individuals require a background check?

Plain-English summary

A state representative asked whether Tennessee's gun laws diverge from federal law on private gun sales, particularly the so-called "occasional sale" exemption that lets people sell or trade guns from their personal collections without a federal firearms license. The AG said no, Tennessee tracks federal law.

Federal law (18 U.S.C. § 923(a)) makes it illegal to be in the business of dealing firearms without a federal license. But the definition of "engaged in the business" (§ 921(a)(21)(C)) excludes occasional sales, exchanges, or purchases by individuals enhancing a personal collection or pursuing a hobby. Tennessee has no separate state licensing scheme; § 39-17-1316(a)(1) simply says any person "appropriately licensed by the federal government may stock and sell firearms." Because Tennessee defers to federal licensing, it inherits the federal occasional-sale exemption.

The same answer carries to background checks. The Brady Act (18 U.S.C. § 922(t)) imposes background-check duties on licensed dealers, not on private parties making occasional sales. Tennessee's parallel statute, § 39-17-1316(c)(2), also applies only to firearms dealers. No Tennessee statute requires a private seller making an occasional sale to run a background check on the buyer.

Currency note

This opinion was issued in 2016. 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.

Common questions

Q: What is an "occasional sale" under federal law?
A: A sale, exchange, or purchase of a firearm by someone who is not "engaged in the business" of dealing firearms. The federal definition excludes from "engaged in the business" anyone "who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms." 18 U.S.C. § 921(a)(21)(C).

Q: Where is the line between "occasional" and "in the business"?
A: Federal courts decide case-by-case. Examples of "in the business" cited by the AG include United States v. Gray (defendant ran a storefront, advertised, sold to undercover agents, resold guns quickly) and United States v. Kish (500 firearms seized from defendant's gun store after license revocation, indicating repetitive purchase and resale for livelihood and profit). The hallmarks are repetition, livelihood, profit motive, and the trappings of a business (signage, pricing, regular sales).

Q: Do private sellers in Tennessee have to run a background check on a buyer?
A: No. The federal Brady Act background-check obligation (18 U.S.C. § 922(t)) applies only to licensed dealers. Tennessee's parallel obligation (§ 39-17-1316(c)(2)) also applies only to dealers. Private occasional sellers are not required to obtain a check.

Q: Is the sale still subject to underlying federal prohibitions on who can possess a firearm?
A: Yes. Federal law (18 U.S.C. § 922(g) and (d)) makes it illegal to sell or give a firearm to a person in a prohibited category (felon, certain domestic-violence convictions, fugitives, controlled-substance users, etc.), and makes it illegal for prohibited persons to possess firearms. Those substantive bans apply even without a background-check requirement. A private seller who knows or has reason to know the buyer is prohibited can still be charged.

Q: Does Tennessee require a Federal Firearms License (FFL) for any state-level gun sales?
A: No separate state license. Tennessee simply says federal-licensed dealers may stock and sell firearms. If federal law requires an FFL (because the seller is "engaged in the business"), the seller must have one. If federal law does not (because the sale is occasional), no state license is required either.

Q: What about a gun-show sale between two individuals?
A: If both are private individuals (not "engaged in the business"), it falls within the federal occasional-sale exemption and Tennessee law does not add anything. Dealers at gun shows, by contrast, are licensed dealers and must follow the Brady Act check process for every sale.

Background and statutory framework

Federal firearms regulation sits primarily in 18 U.S.C. Chapter 44. Section 923 imposes licensing on those "in the business" of dealing firearms; § 921(a)(11)-(a)(21)(C) defines those terms and carves out occasional, personal-collection sales. Section 922 includes the prohibitions on possession by certain categories (g), sale to prohibited persons (d), and the Brady Act background-check requirement for licensed dealers (t).

Tennessee defers to federal licensing. Section 39-17-1316(a)(1) provides that any person "appropriately licensed by the federal government" may stock and sell firearms to persons desiring firearms. The state imposes its own dealer background-check duty in § 39-17-1316(c)(2), mirroring the federal Brady Act in coverage (dealers only).

The AG's opinion reads these statutes as effectively coextensive: Tennessee does not add new state-level licensing or background-check requirements on private occasional sales.

Citations

• 18 U.S.C. § 921(a)(11) (definition of "dealer")
• 18 U.S.C. § 921(a)(21)(C) (definition of "engaged in the business"; occasional-sale carve-out)
• 18 U.S.C. § 922(d), (g), (t) (Brady Act background-check requirement; possession bars)
• 18 U.S.C. § 923(a) (dealer licensing requirement)
• Tenn. Code Ann. § 39-17-1316(a)(1) (deference to federal firearms licensing)
• Tenn. Code Ann. § 39-17-1316(c)(2) (dealer background-check duty)
• United States v. Gray, 470 Fed.Appx. 468 (6th Cir. 2012)
• United States v. Kish, 424 Fed.Appx. 398 (6th Cir. 2011)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2016/op16-044.pdf

Original opinion text

Private, Occasional Sales of Firearms in Tennessee

Question 1
Does Tennessee law differ from the federal law's occasional-sale exemption to firearms licensing requirements?

Opinion 1
No. Tennessee has no specific provision of law governing the occasional sale of firearms, and since Tennessee law provides that federal licensing requirements apply to persons in this state, the federal law provision exempting occasional sales of firearms from licensing requirements applies.

Question 2
Are persons who are not engaged in the business of dealing in firearms required to obtain a criminal background check in connection with the occasional sale or transfer of a firearm?

Opinion 2
No. In Tennessee, persons who are not engaged in the business of dealing in firearms under federal law are not required to obtain a background check before making an occasional sale or transfer of a firearm pursuant to Tenn. Code Ann. § 39-17-1316(c)(2).

ANALYSIS

1. Tennessee has no specific provision of law governing the occasional sale of firearms, and since Tennessee law provides that federal licensing requirements apply to persons in this state, the federal law provision exempting occasional sales of firearms from federal licensing requirement applies.

In Tennessee, occasional sales of firearms are governed by federal law. Federal law prohibits persons from engaging in the business of dealing in firearms without a license. 18 U.S.C. § 923(a). It is unlawful for "any person except a licensed importer, licensed manufacturer, or licensed dealer" to "engage in the business of importing, manufacturing, or dealing in firearms."

Federal law defines a "dealer" as:

(A) any person engaged in the business of selling firearms at wholesale or retail,
(B) any person engaged in the business of repairing firearms or of making or fitting special barrels, stocks, or trigger mechanisms to firearms, or
(C) any person who is a pawnbroker. The term "licensed dealer" means any dealer who is licensed under the provisions of this chapter.

18 U.S.C. § 921(a)(11). The term "engaged in the business"

as applied to a dealer in firearms, as defined in section 921(a)(11)(A), [means] a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through repetitive purchase and resale of firearms, but the term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms.

18 U.S.C. § 921(a)(21)(C) (emphasis added). See also United States v. Gray, 470 Fed.Appx. 468, 472 (6th Cir. 2012) (finding evidence was sufficient to support conviction for unlicensed firearms dealing when defendant displayed signs and flyers advertising that his store dealt in firearms and ammunition, displayed guns and price tags, sold firearms to undercover agents and others, offered to obtain a handgun for an agent, and resold or traded guns shortly after acquiring them); United States v. Kish, 424 Fed.Appx. 398, 405 (6th Cir. 2011) (finding evidence of 500 firearms seized from defendant's gun store after firearms license revoked was sufficient to establish that defendant engaged in repetitive purchase and resale of firearms for livelihood and profit, supporting conviction for dealing in firearms without a license).

Thus, under the plain language of 18 U.S.C. § 921(a)(21)(C), federal law does not reach occasional, private sales between individuals who are not engaged in the business of dealing in firearms, and such individuals are thus exempted from federal licensing requirements.

The Tennessee Legislature has deferred to federal law provisions governing the licensing of firearms dealers. In Tennessee, there is no state crime committed by a person who deals in firearms without a license, nor are there any other statutory or regulatory provisions to prohibit anyone from engaging in such activity. Rather, Tenn. Code Ann. § 39-17-1316(a)(1) provides: "[a]ny person appropriately licensed by the federal government may stock and sell firearms to persons desiring firearms." By its plain terms, Tenn. Code Ann. § 39-17-1316(a) indicates that the legislature intended to permit persons to engage in the business of dealing in firearms who possess a valid federal firearms license and operate under federal licensing provisions. The absence of any specific state licensing requirement and the legislature's deference to federal licensing provisions means that Tennessee law is effectively coextensive with federal law with respect to the occasional sales exemption contained in 18 U.S.C. § 921(a)(21)(C).

Since federal law imposes the only licensing requirements applicable to firearms transactions in Tennessee, it is the sole source of any exemption from those licensing requirements to persons within the State of Tennessee. Accordingly, a person who engages in an occasional sale as defined in 18 U.S.C. § 921(a)(21)(C) is exempt from the federal licensing requirement and may also sell in Tennessee as long as the specific transaction is not otherwise prohibited under state law.

2. In Tennessee, persons who are not engaged in the business of dealing in firearms under federal law are not required to obtain a background check before making an occasional sale or transfer of a firearm pursuant to Tenn. Code Ann. § 39-17-1316(c)(2).

The 1993 Brady Handgun Violence Prevention Act ("Act"), codified at 18 U.S.C. § 922, included a requirement that prospective purchasers/transferees undergo a criminal history records check to determine whether they may lawfully take possession of a firearm from a licensed dealer through the implementation of a nationwide instant check system. See 18 U.S.C. § 922(t). Under the Act, firearms dealers are required to conduct a criminal background check before completion of a sale or transfer of a firearm. Id. By its terms, section 922(t) is directed toward persons who are engaged in the business of selling firearms. Federal law imposes no such requirements on private parties who make occasional sales or transfers of firearms.

A similar requirement exists under state law. Tennessee Code Ann. § 39-17-1316(c)(2) requires firearms dealers, that is, persons who are engaged in the business of dealing in firearms as a regular course of business, to obtain a criminal background check before completing the sale or transfer of a firearm. The obligation to conduct a background check in subdivision (c)(2) applies only to firearms sales or transfers conducted by dealers. No such requirement is imposed on persons who are not in the business of dealing in firearms who make occasional sales or transfers of firearms; there are no other Tennessee statutes that impose a similar obligation on occasional sales or transfers by persons who are not firearms dealers.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

MICHAEL A. MEYER
Special Counsel

Requested by:
Honorable Courtney Rogers
State Representative
110A War Memorial Bldg.
Nashville, Tennessee 37243