Tennessee Governor lacks authority to regulate firearms during an emergency

With the continued perception of a national crisis over a virus from China, the question is being asked on social media and elsewhere as to whether the Tennessee governor (or any local government) has the authority to regulate firearms or ban their possession.

Many would immediately respond with references to the 2nd Amendment as frequently happens. Yet, there is no clear judicial application of the 2nd Amendment to an emergency ban by a local or state government official. Perhaps a court should one day address that issue and the application of the phrase “shall not be infringed” but that is a distant point in the future.

This issue was a topic of discussion years ago in Tennessee after such events occurred in another state following a hurricane. As a result of that real life example, legislation made its way quietly through the Tennessee legislature and became law which addresses this issue.

Under Tennessee law the governor can declare a state of emergency and essentially completely take over the state as if he were a monarch. The governor’s orders and proclamations at such time have the force of law. See, TCA § 58-2-107

But, there are some things the governor is prohibited from doing (although he might try).

The governor can under TCA § 58-2-107(e)(8) “Suspend or limit the sale, dispensing, or transportation of alcoholic beverages, explosives, or combustibles, which terms shall not be construed to include firearms, ammunition, or firearm or ammunition components;”

On this issue of firearms, the statute actually denies the power to limit or restrict access in 2 areas. It is addressed a second time in somewhat more direct language in TCA § 58-2-107(m) which provides that “During any state of emergency, major disaster or natural disaster, the state, a political subdivision or a public official shall not prohibit nor impose additional restrictions on the lawful possession, transfer, sale, transport, carrying, storage, display or use of firearms and ammunition or firearm and ammunition components.”

So far, we are unaware of any orders or proclamations that would violate these statutory restrictions.

However, the absence of overt orders does not mean that problems are not surfacing – problems which do impair a citizen’s right to purchase and own firearms. There are reports surfacing already in Tennessee that attempts to purchase firearms are being denied or, perhaps more accurately, that the state is responding that it cannot process an attempted instant check request at all. Is that an intentional denial? Is it the result of a system failure caused by a tornado or other emergency? It does not appear to be a functional prohibition. It is not clear why these background checks are being turned away. What this example does offer is perhaps a reason why the Tennessee legislature should do something it has been asked to do for the last 20+ years – get rid of the Tennessee Instant Check System and put Tennessee back under the Federal Instant Check System.

John Harris
Executive Director
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