AG Weighs in on Opt Out Law

[Guest Ggun]

S T A T E O F T E N N E S S E E

OFFICE OF THE

ATTORNEY GENERAL

PO BOX 20207

NASHVILLE, TENNESSEE 37202

September 8, 2009

Opinion No. 09-152

Authority of Counties and Municipalities to Prohibit Firearms in Parks Which They Own

QUESTION

Is Section 2 of Chapter 428 of the 2009 Public Acts of Tennessee subject to challenge on

the grounds that it is an unconstitutional delegation of legislative authority to counties or

municipalities in violation of Art. II, § 3, of the Tennessee Constitution?

OPINION

Chapter 428, Section 2 of the 2009 Public Acts of Tennessee does not unlawfully

delegate legislative authority to counties or municipalities in violation of Article II, § 3, of the

Tennessee Constitution.

ANALYSIS

Tenn. Code Ann. § 39-17-1311(a) prohibits the carrying of firearms on public parks,

playgrounds and other recreational facilities owned used or operated by municipal, county and

state governments. Tenn. Code Ann. § 39-17-1311( identifies certain classes of persons who

are not subject to the prohibitions set forth in subsection (a).1 Prior to the enactment of Chapter

428, handgun carry permit holders were not among the exempted classes and therefore could not

lawfully carry firearms on parks, playgrounds and other recreational facilities owned or operated

by state, county and municipal governments.

Section 1 of Chapter 428 added holders of handgun carry permit holders to the classes of

persons who are not subject to the prohibitions set forth in subsection (a), “except as otherwise

provided in subsection (d).†Section 2 of Chapter 428 also added a subsection (d) to Tenn. Code

Ann. § 39-17-1311 which authorizes county and municipal governments to elect to prohibit the

carrying of firearms by handgun carry permit holders on parks, playgrounds and other

recreational facilities which they own.2

1

Those classes included law enforcement officers and military personnel in the discharge of their duties. Tenn.

Code Ann. §§ 39-17-1311((1)(A) and ((1)(D).

2

Section 2 of Chapter 428 states that a county or municipality may make such an election by majority vote of its

legislative body.

Page 2

You have asked whether Chapter 428 would be subject to challenge on grounds that it

constitutes an unlawful delegation of state legislative authority in violation of Art. II, § 3, of the

Tennessee Constitution. That section vests the legislative authority of the state in the hands of

the General Assembly.

Under Art. II, § 3, a statute must be complete at the time of its passage. Its efficacy

cannot be dependent upon further action. If the validity of a statute is dependent upon further

action by a county or municipal legislative body or popular vote, it would violate Art. II, § 3 and

would therefore be invalid. Jones v. Haynes, 221 Tenn. 50, 53-54, 424 S.W.2d 197, 198 (1968).3

If, however, a law of general applicability is complete at the time of its enactment, the

legislature may leave questions related to its operation and enforcement in the hands of counties

and municipalities. Clark v. State ex rel. Bobo, 172 Tenn. 429, 113 S.W.2d 374 (1938), provides

an example of the application of this rule. In that case, the plaintiff challenged the

constitutionality of the local option provisions under the liquor laws.4 Under the statutory

structure that was adopted in Tennessee, the manufacture and sale of alcoholic beverages is

prohibited unless the county or municipality votes to authorize such manufacture or sale. The

plaintiffs argued that the local option provisions were an unconstitutional delegation of

legislative authority in violation of art. II, § 3. The Court rejected the argument and held that the

local option provision was a valid exercise of legislative authority. The Court reasoned that

prior to the enactment of the local option provision, the manufacture and sale of alcohol was

prohibited. The local option provisions did not repeal the general prohibition; they amended the

statute to enable counties and municipalities to determine matters related to the operation and

effect of that prohibition within their jurisdictions.

As it applies to parks, playgrounds and other recreational facilities owned by counties

and municipalities, Chapter 428 operates in like manner.5 Tenn. Code Ann. § 39-17-1311(a)

operates as a general prohibition against carrying firearms in parks, playgrounds and recreational

facilities that are owned by county or municipal governments. Chapter 428 does not repeal the

general prohibition, nor does it delegate to counties and municipalities the power to adopt or

reject that prohibition or otherwise condition its validity upon local approval. Instead, with the

enactment of Chapter 428, the General Assembly itself has determined the sphere within which

the prohibition set forth in section 1311(a) shall operate and has left to local governments the

decision whether to bring the parks, playgrounds and other recreational facilities they own

within its terms. Chapter 428 therefore ought to withstand challenge on the theory that it

unconstitutionally delegates legislative power in violation of Art. II, § 3, of the Tennessee

Constitution.

3

See also Halmonthaller v. City of Nashville, 206 Tenn. 64, 332 S.W.2d 163 (1960); Wright v. Cunningham, 115

Tenn. 445, 91 S.W. 293 (1905).

4

Local-option laws are not confined to the manufacture and sale of alcoholic beverages. They are also in effect for

pari-mutuel wagering, Tenn. Code Ann. § 4-36-401; wheel taxes, Tenn. Code Ann. § 5-8-102; metropolitan

governments, Tenn. Code Ann. § 7-2-106; and the local-option sales tax, Tenn. Code Ann. § 67-6-705.

See Profill

Development v. Dills

, 960 S.W.2d 17, 40-41 (Tenn. Ct. App. 1997).

5

Chapter 428 also authorizes handgun carry permit holders to carry firearms on parks that are owned by the state.

Page 3

ROBERT E. COOPER, JR.

Attorney General and Reporter

MICHAEL E. MOORE

Solicitor General

MICHAEL A. MEYER

Deputy Attorney General

Requested by:

Honorable Barbara Cooper

State Representative

36 Legislative Plaza

Nashville, TN 37243

Honorable Ron Lollar

State Representative

214 War Memorial Building

Nashville, TN 37243

[gunsablazin]

I think I got the gist of it, but could one of our lawyer types translate that into "old country boy" language so I can be sure?

[Guest logicprevails]

Doncha just love Philrobert Bredicooper?

...and isn't it ironic that our Solicitor General is 'Michael Moore' and the DAG sounds kinda like the dude from Halloween that just won't die....

[Fallguy]

I think I got the gist of it, but could one of our lawyer types translate that into "old country boy" language so I can be sure?

FWIW

I take it to mean that since there is still a general prohibition against firearms in parks, and having a HCP is just an exemption it does not violate the TN constitution to allow local governments to opt out.

If however 39-17-1311 would have been repealed it may have been unconstitutional to allow local governments to opt out because the final determination would have been incomplete.

To be honest seems like a bit of double talk....but when is legal talk not...lol

Edited September 10, 2009 by Fallguy

[K191145]

I think I got the gist of it, but could one of our lawyer types translate that into "old country boy" language so I can be sure?

It say's,

Εσείς can' το τ φέρνει ένα πυροβόλο όπλο σε ένα ταχυδρομημένο τοπικό πάρκο.

掲示されたローカル公園の銃無し

Отсутствие пушек в вывешенных местных парках

Ningunos armas en parques locales fijados

You can't carry a gun into a posted local park.

Edited September 10, 2009 by K191145

[Guest PapaB]

In my humble non-lawyer way, I think the AG overlooked 2 things.

1. The caselaw he cites, and other laws he mentions (Local-option laws are not confined to the manufacture and sale of alcoholic beverages. They are also in effect for pari-mutuel wagering, Tenn. Code Ann. § 4-36-401; wheel taxes, Tenn. Code Ann. § 5-8-102; metropolitan governments, Tenn. Code Ann. § 7-2-106; and the local-option sales tax, Tenn. Code Ann. § 67-6-705.), do not address constitutionally enumerated rights.

2. If the Tennessee Supreme Court agreed with him on that point, they still can't allow municipalities to make their decisions based solely on their whims. Municipalities should be required to show that it would prevent crime per Article 1. Section 26. "but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime.".

[macville]

2. If the Tennessee Supreme Court agreed with him on that point, they still can't allow municipalities to make their decisions based solely on their whims. Municipalities should be required to show that it would prevent crime per Article 1. Section 26. "but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime.".

Stop bring logic like this into the argument! I showed the Knoxville City Council that there haven't been any illegal shootings by people with HC/CCW permits in the 31 other states which allow local park carry. But still the argument is that "something" might happen. Something might happen when we serve booze, but we still do it by the gallons each night in Knoxville.

Matthew

[Guest PapaB]

Stop bring logic like this into the argument!

Matthew

Sorry, my bad.

I asked my Doctor why I can't seem to think like they do. He thinks it's because I have something he called "brainwave activity".

[Guest marine77]

Stop bring logic like this into the argument! I showed the Knoxville City Council that there haven't been any illegal shootings by people with HC/CCW permits in the 31 other states which allow local park carry. But still the argument is that "something" might happen. Something might happen when we serve booze, but we still do it by the gallons each night in Knoxville.

Matthew

Not only that, but if you step outside your house (or inside for that

matter) something 'might' happen. Guess it just pays to stay in bed some

days.