Does Tennessee's firearms-preemption statute let someone manufacture guns in an area zoned residential?

Plain-English summary

Senator Mark Norris asked a sharp question. Tennessee's firearms preemption statute, Tenn. Code Ann. § 39-17-1314, is broad. It tells cities, towns, municipalities, metropolitan governments, and local agencies that the state "preempts the whole field of the regulation of firearms, ammunition, or combinations thereof," including manufacture, ownership, sale, storage, transportation, and more. So can a local zoning ordinance prohibit firearms manufacturing in a residentially-zoned area, or is the zoning ordinance preempted as applied to gun manufacturing?

The AG said the zoning ordinance is generally enforceable. The two laws regulate different subjects. The firearms statute regulates firearms. A zoning ordinance prohibiting all manufacturing in a residential area regulates land use. They operate in different fields and do not conflict.

That said, the AG drew a clean line at indirect regulation. If a local government uses a facially-neutral zoning ordinance as a vehicle for singling out firearm manufacturers or sellers (administering or enforcing the rule discriminatorily, or "spot zoning" against a specific gun business), the preemption statute can defeat that enforcement. "It is a well settled principle of law that one cannot do indirectly what cannot be done directly." Haynes v. City of Pigeon Forge, 883 S.W.2d 619, 622 (Tenn. Ct. App. 1994).

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. § 39-17-1314 has been amended multiple times and its preemption scope has expanded. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule mentioned here.

Background and statutory framework

Tennessee adopted firearms field preemption in the 1980s and has tightened it since. The 2017 version of § 39-17-1314(a) read in part: "[T]he general assembly preempts the whole field of the regulation of firearms, ammunition, or combinations thereof including but not limited to, the use, purchase, transfer, taxation, manufacture, ownership, possession, carrying, sale, acquisition, gift, devise, licensing, registration, storage and transportation thereof, to the exclusion of all city, town, municipality, or metropolitan government law, ordinances, resolutions, enactment or regulation."

The legislative goal was to eliminate the patchwork of local gun regulations that had grown up in various Tennessee cities and to make the regulatory regime statewide.

The preemption framework. Even when the legislature expressly preempts a field, Capitol News Co. v. Metropolitan Government and Southern Ry. v. City of Knoxville hold that local regulations can survive if (a) they do not conflict with the statute, (b) they are not unreasonable, and (c) they are not discriminatory. The local rule cannot "infringe the spirit of a state law or [be] repugnant to the general policy of the state." Capitol News, 562 S.W.2d at 434.

Why zoning and firearms regulation are different fields. Zoning targets land use. Lafferty v. City of Winchester, 46 S.W.3d 752 (Tenn. Ct. App. 2000), defines zoning as "the territorial division of land into districts according to the character of land and buildings, their suitability for particular purposes." Zoning regulations focus on the use of property and the architectural and structural designs of buildings, not on firearms.

Local governments have well-established power to restrict the use of property through zoning. Spencer-Sturla Co. v. City of Memphis, 290 S.W. 608 (1927), upheld an ordinance excluding commercial enterprise from a residential district. A zoning classification is valid "if any possible reason can be conceived to justify it." State ex rel. SCA Chemical Waste Services v. Konigsberg, 636 S.W.2d 430, 437 (Tenn. 1982).

The harmonization. A zoning ordinance that prohibits all manufacturing in a residential area does not target firearms. It targets the manufacturing land use. Preserving residential character of an area is a rational justification. The ordinance does not ban firearms manufacturing per se; it requires it to be done in compliance with the local land-use scheme. Lamar Tenn., LLC v. City of Knoxville, 2016 Tenn. App. LEXIS 142 (Tenn. Ct. App. Feb. 25, 2016), supports the same general idea about neutral generally-applicable ordinances.

The indirect-regulation guardrail. The AG drew the limit clearly. If a local government administers the zoning ordinance in a way that singles out firearms manufacturers or sellers (refusing variances they routinely grant to others, enforcing the rule against gun-related uses but not similar non-gun uses, or "spot zoning" a particular gun shop's parcel), the firearms preemption can defeat enforcement. Cases like Fallin v. Knox County Bd. of Com'rs, 656 S.W.2d 338 (Tenn. 1983) (invalidating spot zoning), and City of Murfreesboro v. Pilkington, 569 S.W.2d 805 (Tenn. 1978) (discriminatory enforcement of beer permit distance ordinance), illustrate the line.

The deeper principle: Haynes v. City of Pigeon Forge, 883 S.W.2d 619 (Tenn. Ct. App. 1994), captures it succinctly: "[O]ne cannot do indirectly what cannot be done directly." Local governments cannot launder a firearms regulation through a zoning ordinance.

Common questions

Q: Can a Tennessee city ban gun manufacturing in residential zones?
A: According to this opinion, yes, as long as the ban applies to all manufacturing and is not used to single out firearms uses. The zoning regulates land use, not firearms, so it operates in a field separate from § 39-17-1314's preemption.

Q: Can a city use zoning to target a specific gun shop?
A: No. The AG was direct: an ordinance administered to single out manufacturers or sellers of firearms or ammunition runs into the preemption statute even if facially neutral.

Q: What about a zoning ordinance specifically banning firearms manufacturing but allowing other manufacturing?
A: That would directly target firearms and would almost certainly be preempted by § 39-17-1314. The whole point of the opinion is that the saving feature of the residential-zoning hypothetical was its general application to all manufacturing.

Q: What's "spot zoning"?
A: Spot zoning is singling out a small parcel for a use classification different from the surrounding area for the benefit (or detriment) of a particular owner. Fallin v. Knox County Bd. of Com'rs held that this is invalid unless the spot zoning sufficiently relates to public health, safety, and welfare. Spot zoning to disadvantage a specific gun business would run into the preemption statute and the spot-zoning doctrine simultaneously.

Q: Does this apply to firearm sales as well as manufacturing?
A: The opinion centered on manufacturing because that was the question, but the reasoning applies the same way. A generally-applicable zoning rule that prohibits all retail in a residential area would not be preempted as applied to gun sales, because it regulates land use, not firearms. A rule selectively banning only gun sales would be preempted.

Citations and references

Statutes:
- Tenn. Code Ann. § 39-17-1314(a) (firearms preemption)

Cases:
- Capitol News Co., Inc. v. Metropolitan Gov't. of Nashville and Davidson County, 562 S.W.2d 430 (Tenn. 1978)
- Southern Ry. Co. v. City of Knoxville, 442 S.W.2d 619 (Tenn. 1968)
- Lafferty v. City of Winchester, 46 S.W.3d 752 (Tenn. Ct. App. 2000)
- Spencer-Sturla Co. v. City of Memphis, 290 S.W. 608 (1927)
- State ex rel. SCA Chemical Waste Services, Inc. v. Konigsberg, 636 S.W.2d 430 (Tenn. 1982)
- Lamar Tenn., LLC v. City of Knoxville, 2016 Tenn. App. LEXIS 142, 2016 WL 746503 (Tenn. Ct. App. Feb. 25, 2016)
- Fallin v. Knox County Bd. of Com'rs, 656 S.W.2d 338 (Tenn. 1983)
- City of Murfreesboro v. Pilkington, 569 S.W.2d 805 (Tenn. 1978)
- Haynes v. City of Pigeon Forge, 883 S.W.2d 619 (Tenn. Ct. App. 1994)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2017/op17-026.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
April 11, 2017
Opinion No. 17-26
Effect of Tenn. Code Ann. § 39-17-1314 on Enforceability of Local Zoning Laws

Question
Where Tenn. Code Ann. § 39-17-1314 preempts counties and municipalities from adopting any ordinances to regulate the use, purchase, transfer, taxation, manufacture, ownership, possession, carrying, sale, acquisition, gift, devise, licensing, registration, storage, and transportation of firearms, would a local zoning ordinance prohibiting manufacturing of any kind in an area zoned residential be enforceable as to the manufacture of guns and ammunition?

Opinion
Tennessee Code Annotated § 39-17-1314 regulates firearms and ammunition. A local zoning ordinance prohibiting all manufacturing in a residential area regulates land use. The state law and the local ordinance regulate different subjects and therefore operate independently of one another. As long as the zoning ordinance is not otherwise discriminatory in its application and enforcement and does not indirectly engage in regulation that is forbidden under Tenn. Code Ann. § 39-17-1314, the ordinance will be enforceable.

ANALYSIS

By its plain language, Tenn. Code Ann. § 39-17-1314(a) (the "firearms statute") gives the State exclusive authority to regulate firearms and ammunition. With some specific exemptions,

the general assembly preempts the whole field of the regulation of firearms, ammunition, or combinations thereof including but not limited to, the use, purchase, transfer, taxation, manufacture, ownership, possession, carrying, sale, acquisition, gift, devise, licensing, registration, storage and transportation thereof, to the exclusion of all city, town, municipality, or metropolitan government law, ordinances, resolutions, enactment or regulation. No city, town, municipality or metropolitan government nor any local agency, department or official shall occupy any part of the of the field regulation of firearms, ammunition or components of firearms or ammunition or combinations thereof.

Tenn. Code Ann. § 39-17-1314(a). In short, the Legislature has expressly preempted and assumed full regulatory responsibility for the whole field of firearms regulation and has expressly prohibited local government entities from regulating firearms and ammunition — subject only to specific exceptions.

When the Legislature expressly preempts a particular field of regulation, a local regulation may nevertheless be valid as long as there is no conflict between the statute and a local regulation and the requirements of the local regulation are not unreasonable or discriminatory. See, e.g., Capitol News Co., Inc. v. Metropolitan Gov't. of Nashville and Davidson County, 562 S.W.2d 430, 434-35 (Tenn. 1978); Southern Ry. Co. v. City of Knoxville, 442 S.W.2d 619, 622 (Tenn. 1968). But a local government may not adopt by-laws that "infringe the spirit of a state law or are repugnant to the general policy of the state." Capitol News Co., Inc., 562 S.W.2d at 434.

Here, there would be no conflict between the firearms statute and a local zoning ordinance that prohibits all manufacturing, including firearms manufacturing, in an area zoned for residential use. The state law and the local ordinance regulate different fields. While the purpose of the firearms statute is to regulate all things related to firearms and ammunition, the purpose of local zoning ordinances is to regulate the use of land.

In the most general terms, zoning involves the territorial division of land into districts according to the character of land and buildings, their suitability for particular purposes, and the uniformity of these uses. Zoning regulations focus primarily on the use of property and the architectural and structural designs of buildings.

Lafferty v. City of Winchester, 46 S.W.3d 752, 758 (Tenn. Ct. App. 2000) (internal citations omitted).

It is well established that local governments have the power to restrict the use of property by means of zoning regulations. Spencer-Sturla Co. v. City of Memphis, 290 S.W. 608, 612 (1927) (ordinance excluding commercial enterprise from residential district held to be a valid exercise of local government police power). A local government's legislative classification in a zoning law is valid "if any possible reason can be conceived to justify it." State ex rel. SCA Chemical Waste Services, Inc. v. Konigsberg, 636 S.W.2d 430, 437 (Tenn. 1982). At the same time, while local governments have broad discretion acting within the scope of this power, they may not effectively nullify state law by the enactment of ordinances that "ignore applicable state laws, grant rights the state law denies, or that deny rights the state law grants." Id.

The firearms statute and a zoning ordinance that limits land use to residential purposes regulate two separate fields. Preserving the residential character of a particular area is a rational justification for a zoning ordinance that prohibits manufacturing of any kind, including firearms and ammunition manufacturing in that area. Moreover, the ordinance would not ban firearms and ammunition manufacturing; it simply requires that such manufacturing be done in compliance with the local zoning regulations. See Lamar Tenn., LLC v. City of Knoxville, 2016 Tenn. App. LEXIS 142 at *21-24, 2016 WL 746503 (Tenn. Ct. App. Feb. 25, 2016), perm. app. denied 2016 Tenn. LEXIS 465 (Tenn. June 23, 2016). There is nothing in the statute to suggest the Legislature intended to divest a local government of its authority to regulate land use. Accordingly, it is reasonable to construe the statute to require firearms manufacturers and sellers to conform to the same general restrictions as those imposed on other businesses within the same zoning classifications.

The result could be different if, on the other hand, a local government attempted to administer or enforce zoning ordinances as a way of engaging indirectly in the regulation of firearms and ammunition by discriminating against those in the business of manufacturing or selling firearms or ammunition. For example, if an ordinance were administered in a way that regulated land use by excluding only manufacturers or sellers of firearms, Tenn. Code Ann. § 39-17-1314 could preempt the enforcement of that zoning ordinance. Fallin v. Knox County Bd. of Com'rs, 656 S.W.2d 338, 342-43 (Tenn. 1983) (spot zoning by singling out a small parcel of land for use classification which is different from surrounding area for the benefit of a property owner is invalid as not sufficiently bearing on the relationship to the public health, safety, and welfare of the general public); City of Murfreesboro et al. v. Eddie Pilkington, d/b/a Tom Thumm Market, 569 S.W.2d 805, 808 (Tenn. 1978) (city's discriminatory enforcement of beer permit distance ordinance held improper); see also, Rutherford County Beer Board v. Adams, 571 S.W.2d 830; Seay v. Knox County Quarterly Court, 541 S.W.2d 946 (Tenn.1976); Serv. U. Mart, Inc. v. Sullivan County, Tenn., 527 S.W.2d 805 (Tenn.1975).

In sum, Tenn. Code Ann. § 39-17-1314 does not invalidate or prevent the enactment of a local zoning ordinance that limits land use to residential purposes. But, since "[i]t is a well settled principle of law that one cannot do indirectly what cannot be done directly," Haynes v. City of Pigeon Forge, 883 S.W.2d 619, 622 (Tenn. Ct. App. 1994), the firearms statute could prohibit enforcement of a local ordinance that is merely an indirect way of regulating firearms or ammunition sellers and manufacturers.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

MICHAEL A. MEYER
Special Counsel

Requested by:
The Honorable Mark Norris
State Senator
9A Legislative Plaza
Nashville, Tennessee 37243