Are rifles, shotguns, muzzleloaders, and other long guns protected under the Second Amendment and the Tennessee Constitution regardless of whether they are single-shot, pump, lever, bolt, or semi-automatic?

Subject

Whether the Second Amendment to the U.S. Constitution and Article I, § 26 of the Tennessee Constitution protect rifles, shotguns, muzzleloaders, and other long guns regardless of action type (single shot, pump, lever, bolt, semi-automatic).

Plain-English summary

Representative Monty Fritts asked the AG a categorical question. Are all rifles and other long guns of every action type protected under the Second Amendment and the Tennessee Constitution? The AG answered that the question cannot be reduced to a yes or no. Some long guns are protected. Some are not. And even arms that are protected can be regulated.

The starting point is the Supreme Court's modern Second Amendment trilogy: Heller (2008), McDonald (2010), and Bruen (2022). Heller said the Second Amendment protects an individual right to keep and bear arms "in common use" for lawful purposes, like self-defense. It does not protect "dangerous and unusual" weapons. Heller explicitly said machine guns and short-barreled shotguns fall outside that protection. Bruen reinforced the common-use test and rejected lower-court interest-balancing approaches. Rahimi, decided in 2024, reaffirmed that Bruen does not "sweep indiscriminately" and that an individual found by a court to pose a credible threat to others can be temporarily disarmed.

Applying the common-use test, many long guns are clearly protected. Federal cases have found that semi-automatic rifles and magazines holding more than ten rounds are in common use; one federal district court found "ample support" that "assault long guns" are too. Bruen itself referenced colonial-era regulations that did not prohibit individuals from carrying long guns for self-defense. So a typical hunting rifle, a typical shotgun, and at least many semi-automatic rifles are within the Second Amendment's scope.

But some long guns probably are not. Heller flagged machine guns and short-barreled shotguns as examples of arms outside the protection. The line between "in common use" and "dangerous and unusual" is fact-bound and the Supreme Court has not provided a comprehensive list.

The Tennessee Constitution's right-to-bear-arms provision (Article I, § 26) has been described by the Tennessee Supreme Court as protecting "the same rights" as the Second Amendment, citing Andrews v. State (1871). So the federal-law analysis largely controls Tennessee state-law questions about long guns.

Even when an arm is protected, regulations can still apply. Heller said firearms can be barred from "sensitive places" like schools and government buildings. Bruen said states retain broad authority to regulate. McDonald confirmed that "longstanding regulatory measures" against possession by felons and the mentally ill remain valid. Rahimi added that domestic-violence-restraining-order subjects can be temporarily disarmed. The Bruen two-step framework asks whether the conduct is covered by the Second Amendment's plain text and, if so, whether the regulation is consistent with America's historical tradition of firearm regulation.

What this means for you

Tennessee gun owners (rifles, shotguns, hunting guns)

The opinion holds that a typical rifle or shotgun in common use for lawful purposes is within the scope of the Second Amendment and Tennessee's Article I, § 26, but that protection does not make every regulation unconstitutional. It states that sensitive-place restrictions (schools, government buildings) and conduct-based prohibitions (felons-in-possession, domestic-violence restraining order subjects) remain valid.

Semi-automatic rifles

The opinion cites federal cases (Heller v. District of Columbia, D.C. Cir. 2011; Del. State Sportsmen's Ass'n, D. Del. 2023) finding that semi-automatic rifles, magazines holding more than ten rounds, and "assault long guns" are in common use. It does not resolve the constitutionality of any particular ban.

Owners of "dangerous and unusual" long guns

The opinion notes that Heller flagged machine guns and short-barreled shotguns as examples of arms that likely fall outside the Second Amendment's protection. It does not draw a comprehensive line between "in common use" and "dangerous and unusual."

Schools, government buildings, and other "sensitive places"

The opinion holds that the sensitive-places doctrine survives Bruen and Rahimi: states may prohibit firearms from schools and government buildings. Under the Bruen framework, a regulation survives only if the government shows it is consistent with the nation's historical tradition of firearm regulation.

State legislators

The opinion holds that the Bruen two-step framework controls firearms legislation: step one asks whether the Second Amendment's plain text covers the conduct, and step two asks whether the regulation is consistent with the historical tradition of firearm regulation, where "why and how the regulation burdens the right are central" (Rahimi).

Law enforcement and prosecutors

The opinion states that the Second Amendment does not bar enforcement of firearms statutes against felons, the mentally ill, or persons subject to domestic-violence orders, and that Rahimi held a person found by a court to pose a credible threat may be temporarily disarmed.

Common questions

Are AR-15s and similar semi-automatic rifles legal in Tennessee?

The AG opinion does not directly say yes, but it cites federal cases (including Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011)) finding that semi-automatic rifles and magazines holding more than ten rounds are in common use, and a federal district court finding that "assault long guns" are too. Federal law permits civilian ownership of semi-automatic rifles, and Tennessee law does not currently ban them. So as a current matter, yes; the opinion's contribution is the constitutional analysis, not a statutory answer.

Can my city or county ban guns in city hall or the courthouse?

Yes, sensitive-places restrictions remain valid under Bruen. The Court explicitly preserved the doctrine and used schools and government buildings as examples.

Does the Second Amendment protect machine guns?

Likely no. Heller said machine guns and short-barreled shotguns fall outside the scope of the Second Amendment. The National Firearms Act's restrictions on civilian machine gun ownership remain in force.

Is there a Tennessee right to bear arms separate from the federal right?

Yes, but it has been held to protect "the same rights" as the federal right. So practically, the federal Second Amendment analysis controls most Tennessee state-law gun questions, and Andrews v. State (1871) is the long-standing Tennessee Supreme Court authority for that proposition.

Can the state disarm me if I am subject to a restraining order?

Likely yes, at least temporarily, if a court has found you pose a credible threat. Rahimi (2024) directly addressed that question. The Court upheld a federal statute disarming domestic-violence restraining order subjects.

What is the Bruen two-step test exactly?

Step one: does the Second Amendment's plain text cover the individual's conduct? If yes, the conduct is presumptively protected. Step two: can the government show the regulation is consistent with this nation's historical tradition of firearm regulation? If yes, the regulation can survive. The historical analysis looks to "why and how" founding-era and Reconstruction-era regulations burdened the right and asks whether the modern regulation fits the same pattern.

Are 18-to-20-year-olds protected by the Second Amendment?

The opinion acknowledges that courts have consistently recognized 18-to-20-year-olds as part of "the people" protected by the Second Amendment, citing Worth v. Jacobson (8th Cir. 2024) and Firearms Pol'y Coal., Inc. v. McCraw (N.D. Tex. 2022).

Background and statutory framework

Both the federal and Tennessee constitutions protect the right to keep and bear arms. The Second Amendment says: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Article I, Section 26 of the Tennessee Constitution says citizens "have a right to keep and to bear arms for their common defense" and gives the legislature power to "regulate the wearing of arms with a view to prevent crime." The Tennessee Supreme Court held in Andrews v. State, 50 Tenn. 165, 177 (1871) that the two provisions protect "the same rights."

Modern Second Amendment doctrine begins with District of Columbia v. Heller, 554 U.S. 570 (2008), which recognized an individual right to keep and bear arms for lawful purposes including self-defense. Heller said the right protects arms "in common use" and not those "dangerous and unusual." Heller flagged machine guns and short-barreled shotguns as examples of unprotected weapons.

McDonald v. City of Chicago, 561 U.S. 742 (2010), incorporated the right against the states. McDonald reaffirmed that "longstanding regulatory measures" prohibiting possession by felons and the mentally ill, banning possession in sensitive places, and imposing conditions on commercial sale "should not be taken to cast doubt" on those regulations.

New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1 (2022), set the modern test. The court rejected the lower-court two-step interest-balancing framework. Bruen's test is text first, then historical tradition: the conduct is protected if the plain text covers it, and the regulation survives only if it is consistent with America's historical tradition of firearm regulation.

United States v. Rahimi, 144 S. Ct. 1889 (2024), refined the historical analysis. Rahimi said the Second Amendment does not "sweep indiscriminately" and that "why and how the regulation burdens the right are central" to the inquiry. Rahimi also said founding-era laws regulating firearm use to address particular problems are "a strong indicator" that contemporary laws imposing similar restrictions for similar reasons are permissible. Rahimi upheld a federal statute disarming domestic-violence restraining order subjects.

Lower-court applications of the common-use test have generally protected semi-automatic rifles and standard-capacity magazines. The opinion cites Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) (semi-automatic rifles and ten-plus-round magazines in common use) and Del. State Sportsmen's Ass'n (D. Del. 2023) (assault long guns in common use). The Sixth Circuit in United States v. Williams (2024) addressed felons-in-possession in the post-Bruen environment.

Citations

• U.S. Const. amend. II
• Tenn. Const. art. I, § 26
• District of Columbia v. Heller, 554 U.S. 570 (2008) (individual right; common-use test; dangerous-and-unusual exception)
• McDonald v. City of Chicago, 561 U.S. 742 (2010) (incorporation against states; preserves longstanding regulatory measures)
• New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1 (2022) (text-and-history framework)
• United States v. Rahimi, 144 S. Ct. 1889 (2024) (refining the historical analysis; upholding domestic-violence disarmament)
• Konigsberg v. State Bar of Cal., 366 U.S. 36 (1961) ("unqualified command" language quoted in Bruen)
• Andrews v. State, 50 Tenn. 165 (1871) (Tennessee right protects "the same rights" as federal)
• Del. State Sportsmen's Ass'n v. Del. Dep't of Safety & Homeland Sec., 664 F. Supp. 3d 584 (D. Del. 2023) ("assault long guns" in common use)
• Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) (semi-automatic rifles and ten-plus-round magazines in common use)
• Worth v. Jacobson, 108 F.4th 677 (8th Cir. 2024) (18-to-20-year-olds within "the people")
• Firearms Pol'y Coal., Inc. v. McCraw, 623 F. Supp. 3d 740 (N.D. Tex. 2022) (same)
• United States v. Williams, 2024 WL 3912894 (6th Cir. Aug. 23, 2024) (post-Bruen analysis)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2024/op24-014.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
August 29, 2024
Opinion No. 24-014
Self-Defense and Long Guns

Question

In light of the U.S. Supreme Court's decisions in District of Columbia v. Heller, 554 U.S. 570 (2008), McDonald v. City of Chicago, 561 U.S. 742 (2010), and New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1 (2022), are rifles and other long guns, such as shot guns, muzzleloaders, carbines, etc., regardless of their type of actions (single shot, pump, lever, bolt, or semi-automatic) covered under the Second Amendment to the United States Constitution and Article I, § 26 of the Tennessee Constitution?

Opinion

The Second Amendment to the U.S. Constitution and Article I, § 26 of the Tennessee Constitution protects some (but not all) rifles and long guns in some (but not all) circumstances.

ANALYSIS

Both the U.S. and Tennessee Constitutions protect the right to keep and bear arms. The Second Amendment to the U.S. Constitution declares: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." And Article I, Section 26 of the Tennessee Constitution similarly states "[t]hat the citizens of this State have a right to keep and to bear arms for their common defense; but the Legislature shall have the power, by law, to regulate the wearing of arms with a view to prevent crime." The Tennessee Supreme Court has stated that these constitutional provisions protect "the same rights." Andrews v. State, 50 Tenn. 165, 177 (1871).

The question presented to the Office asks whether "rifles and other long guns" are "covered" under the Second Amendment and the Tennessee Constitution "regardless of their type of actions (single shot, pump, lever, bolt, or semi-automatic)." That question cannot be answered with a simple "yes" or "no."

The Second Amendment's text "extends, prima facie, to all instruments that constitute bearable arms, even those that were not [yet] in existence." United States v. Rahimi, 144 S. Ct. 1889, 1897 (2024) (quoting Heller, 554 U.S. at 582). That said, the Court has stated that the Second Amendment protects an individual's right to bear arms that are "in common use," as opposed to those that "are dangerous and unusual." Bruen, 597 U.S. at 47 (quoting Heller, 554 U.S. at 627). Some "rifles and other long guns" qualify for protection under that standard. See Bruen, 597 U.S. at 49 (discussing a colonial-era firearms regulation that did not prohibit individuals "from carrying long guns for self-defense"); Del. State Sportsmen's Ass'n v. Del. Dep't of Safety & Homeland Sec., 664 F. Supp. 3d 584, 594 & n.11 (D. Del. 2023) (finding "ample support" for the argument that "assault long guns are indeed 'in common use' for lawful purposes, including self-defense"); Heller v. District of Columbia, 670 F.3d 1244, 1261 (D.C. Cir. 2011) ("We think it clear enough in the record that semi-automatic rifles and magazines holding more than ten rounds are indeed in 'common use.'"). Others likely do not. See Heller, 554 U.S. at 624-625 (suggesting that machineguns and short-barreled shotguns do not fall within the scope of the Second Amendment's protection).

That some rifles and long arms fall within the scope of the Second Amendment does not mean that States cannot restrict their use in certain scenarios. The Second Amendment does not "sweep indiscriminately," Rahimi, 144 S. Ct. at 1897, or impose "a regulatory straightjacket" on the ability of States to regulate firearms, Bruen, 597 U.S. at 30. States may prohibit firearms from "sensitive places" like schools and government buildings (among other places). See Heller, 554 U.S. at 626. States may also regulate "dangerous and unusual weapons," Bruen, 597 U.S. at 47; Heller, 554 U.S. at 627, and restrict the types of persons that may possess and carry firearms, see McDonald, 561 U.S. at 786 (casting no doubt on "longstanding regulatory measures" that prohibit dangerous "felons and the mentally ill" from possessing firearms); Heller, 554 U.S. at 626-27; United States v. Williams, 2024 WL 3912894, at *1 (6th Cir. Aug. 23, 2024). Most recently, the Supreme Court, in a case addressing a federal law that prohibits the subject of a domestic violence restraining order from possessing a firearm, reaffirmed that "[a]n individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment." Rahimi, 144 S. Ct. at 1903. The Second Amendment thus does not provide an unqualified "right to . . . carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Heller, 554 U.S. at 626.

Any analysis of "modern firearms regulations" must follow Bruen's two-step framework. 597 U.S. at 26. At step one, courts consider whether "the Second Amendment's plain text covers an individual's conduct"—and if so, "the Constitution presumptively protects that conduct." Id. at 17. When that presumption applies, the government at step two must "demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation." Id. And "[o]nly if a firearm regulation is consistent with [that] historical tradition may a court conclude that the individual's conduct falls outside the Second Amendment's 'unqualified command.'" Id. (quoting Konigsberg v. State Bar of Cal., 366 U.S. 36, 50 n.10 (1961)).

In analyzing historical tradition, "[w]hy and how the regulation burdens the right are central to th[e] inquiry." Rahimi, 144 S. Ct. at 1898. When "laws at the founding regulated firearm use to address particular problems, that will be a strong indicator that contemporary laws imposing similar restrictions for similar reasons fall within a permissible category of regulations." Id. That said, "[e]ven when a law regulates arms-bearing for a permissible reason, . . . it may not be compatible with the right if it does so to an extent beyond what was done at the founding." Id.

Bruen's two-part framework ensures that the extent of a State's lawful authority to regulate firearms is "consistent with the Second Amendment's text and historical understanding." Bruen, 597 U.S. at 26.

JONATHAN SKRMETTI
Attorney General and Reporter

J. MATTHEW RICE
Solicitor General

LAURA T. KIDWELL
Assistant Solicitor General

PHILIP HAMMERSLEY
Assistant Solicitor General

BRIAN DANIEL MOUNCE
Strategic Litigation Counsel & Assistant Solicitor General

Requested by:
The Honorable Monty Fritts
State Representative
425 Rep. John Lewis Way N.
Suite 430 Cordell Hull Building
Nashville, Tennessee 37243