The Tennessee Attorney General released an opinion (
AG 15-75)
on November 9, 2015, which addresses the massive confusion under
Tennessee law of whether and to what extent a convicted felon can own,
possess and use black powder weapons. This opinion is in addition to at
least 3 other opinions previously issued by the Tennessee Attorney
General on this topic which have created inconsistent opinions and
unnecessary confusion about state and federal law on this topic.
Highlights of the opinion include the following statements:
- Question l(a) If a person who has been convicted of a felony or
misdemeanor involving domestic violence obtains a complete restoration
of the right to own and possess firearms by expungement under Tenn. Code
Ann.§§ 40-32-101(g) or (h) or by successfully obtaining a handgun carry
permit under Tenn. Code Ann.§ 39-17-1351(j), are there any restrictions
under federal or state law on the types of firearms that such a person
may possess?
Opinion l(a)
No.
- Question l(b)
If a person who has been convicted of a felony or misdemeanor involving
domestic violence obtains a complete restoration of the right to own and
possess firearms by expungement under Tenn. Code Ann. §§ 40-32-101(g)
or (h), is that person also required to obtain a valid handgun carry
permit to lawfully possess a firearm?
Opinion l(b)
No.
- Question 2(a)
Does Tennessee law prohibit a person who has been convicted of a felony
and who has not obtained a full restoration of his firearms rights from
possessing black powder firearms?
Opinion 2{a)
Yes. As a general rule, a person who has been convicted of a felony may
not possess any antique, black powder or any other type of firearm
unless his firearms rights have been completely restored. But there are certain exceptions that permit a nonviolent
felony offender to possess black powder and antique long guns and that
permit convicted felons to possess black powder long guns and handguns
only at their places of residence.
- Question 2(b)
Do the prohibitions against possession of antique and black powder
firearms apply only to offenders who have been convicted of violent
felonies and felony drug offenses?
Opinion 2(b)
Subject to limited exceptions for possession of black powder and antique
long guns by nonviolent felons and for any felony offender’s possession
of black powder firearms at that offender’s place of residence,
convicted felons of any class are prohibited from possessing antique or
black powder firearms.
- Question 2(c)
Does Tenn. Code Ann. § 39-17-1307(e) permit a person who has been
convicted of a violent felony or felony drug offense to possess a black
powder firearm in a motor vehicle if the offender is in lawful
possession of the motor vehicle?
Opinion 2(c)
Tennessee Code Annotated§ 39-17-1307(e), by its plain terms, provides an
exception to Tenn. Code Ann.§ 39-17-1307(a), which prohibits the
carrying of weapons for purposes of going armed. It does not permit possession of any firearm, including a black
powder firearm, by a person who has been convicted of a violent felony
or felony drug offense.
- Question 2(d)
Does Tenn. Code Ann. § 39-17-1364 operate as a limited exception to the
prohibitions against the possession and sale of black powder firearms in
Tenn. Code Ann. §§ 39-17-1307 and 39-17-1364?
Opinion 2(d)
Yes.
- Question 3
Is Tennessee law sufficiently clear to provide convicted felons with
fair warning about prohibitions on the possession of various types of
firearms?
Opinion 3
Yes.
- Question 4
Is Tennessee law sufficiently clear to provide convicted felons with
fair warning regarding applicable prohibitions on the possession Of
antique or black powder firearms?
Opinion 4
Yes.
The opinion is a morass of reasoning that yields one of two (or
possibly more) conclusions. First, the AG does not have the slightest
clue about this topic but has chosen to author an opinion with
conclusions that are the most restrictive possible to maximize the
infringements of 2nd Amendment rights of individuals who have had their
rights restored and/or who are non-violent felons who have served their
sentences in full.
Shouldn't it be the duty of the State Attorney General to zealously defend the constitutional rights of the citizens rather than to maximize the degree of the infringement? Perhaps what Tennessee needs therefore is a popularly elected attorney general rather than one appointed solely in the discretion of the five Tennessee Supreme Court justices who now, as a result of "Haslam's law" are appointed by him rather than elected by the citizens!!
A second possible conclusion is that state law is a mess in this area. If this conclusion is
accurate, it is particularly frustrating because Republicans have fully
controlled state government for the last 5 years but have allowed this
confusing and inconsistent statutory scheme to continue to exist despite
their claims to be constitutionialists that favor smaller, cleaner,
fairer government and minimal infringement of fundamental human and constitutional rights.
Whatever the conclusion, the question is will the Republican
controlled and dominated state government lift a finger to address the
problem in the 2016 legislative session? The answer is likely –
probably not.
