Tennessee: Memphis Flouts General Assembly and State Firearm Preemption Statute

On July 23, the Memphis, Tenn. City Council approved a series of ballot measures for the November election that purport to enact local gun control measures in the Home of the Blues by amending the city charter. “Purport” is the appropriate term, because the proposed local gun control measures run directly counter to the state’s robust firearm preemption statute.

Ballot measure one attempts to undo the Tennessee General Assembly’s recent work to respect the Right-to-Carry without a permit by requiring a carry permit to exercise the Right-to-Carry within city limits. The dubious restriction even provides that a person may not “carry, store, or travel with a handgun” in their own motor vehicle without a permit.

Ballot measure two provides that it “shall be unlawful and prohibited for a person to possess or carry, openly or concealed, any assault rifles in the City of Memphis.” Further, it states that “the commercial sale of assault rifles within the City of Memphis is unlawful and is hereby prohibited.” Perhaps acknowledging the unserious nature of their local gun control gambit, the city council didn’t bother to define the term “assault rifle.”

Ballot measure three would institute a so-called “red flag” gun confiscation order scheme, including ex parte confiscation orders issued without due process.

The Tennessee General Assembly has made clear that it retains the sole authority to regulate firearms within the state. T. C. A. § 39-17-1314 provides,

the general assembly preempts the whole field of the regulation of firearms, ammunition, or components of firearms or 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 county, city, town, municipality, or metropolitan government law, ordinances, resolutions, enactments or regulation. No county, city, town, municipality, or metropolitan government nor any local agency, department, or official shall occupy any part of the field regulation of firearms, ammunition or components of firearms or ammunition, or combinations thereof.

Further, in the same statute the General Assembly provided a remedy for those impacted by impermissible local gun controls. T. C. A. § 39-17-1314 provides,

(g)(1)(A) Notwithstanding title 29, chapter 20; title 9, chapter 8; and § 20-13-102, a party may file an action in a court of competent jurisdiction against any of the persons or entities listed in subdivisions (g)(1)(A)(i) and (ii), if the party is adversely affected by:

(i) An ordinance, resolution, policy, rule, or other enactment that is adopted or enforced by a county, city, town, municipality, or metropolitan government or any local agency, department, or official that violates this section;

The Tennessee Office of the Attorney General has repeatedly cited the state firearm preemption statue in its official opinions to make clear that local gun control measures are invalid. In the context of local carry restrictions, in 2018, Attorney General Opinion No. 18-04 reiterated, “In enacting Tenn. Code Ann. §§ 39-17-1311 and 1314, the Legislature has preempted the entire field of regulation of the possession and use of firearms.”

In their attempt to enact local gun control by way of amending the city charter, the city council cited Tennessee Constitution Art. 11, § 9, which provides some authority for “home rule.” That section also states,

Any municipality after adopting home rule may continue to operate under its existing charter, or amend the same, or adopt and thereafter amend a new charter to provide for its governmental and proprietary powers, duties and functions, and for the form, structure, personnel and organization of its government, provided that no charter provision except with respect to compensation of municipal personnel shall be effective if inconsistent with any general act of the General Assembly and provided further that the power of taxation of such municipality shall not be enlarged or increased except by general act of the General Assembly. 

In addressing a case involving an issue of state versus local authority, Nichols v. Tullahoma Open Door, Inc. (1982), the Court of Appeals of Tennessee, Middle Section cited two Tennessee Supreme Court decisions, noting,

municipalities in Tennessee have no authority other than that granted by the legislature and the legislature may remove or alter that authority as it chooses. “[I]t is elementary that statutes prescribing how delegated police power may be exercised by municipalities are mandatory and exclusive.” Brooks v. Garner, 566 S.W.2d 531, 532 (Tenn.1978). Municipal authorities cannot adopt ordinances which infringe the spirit of state law or are repugnant to the general policy of the state. Capitol News Co. v. Metropolitan Government of Nashville and Davidson County, 562 S.W.2d 430, 434 (Tenn.1978).

Given current state law, it is likely that Memphis’s proposed gun controls will end up being little more than a messaging effort. More decent politicians would spare taxpayers the cost of indulging their own anti-gun prejudices.