TENNESSEE LAWS ON THE
PURCHASE AND SALE OF FIREARMS

Tennessee Statutes and Regulations

Machine Guns and Class III Weapons

You too can purchase a machine gun or other National Firearms Act weapon because ownership is not restricted under Tennessee law.

There are two kinds of firearms under federal law, title 1 firearms and title 2. Title 1 firearms are long guns (rifles and shotguns), handguns, silencers, and firearm frames or receivers. Most NFA weapons are also title 1 firearms. Title 2 weapons are NFA weapons. Title 2 of the 1968 Gun Control Act is the National Firearms Act (codified at 26 U.S.C. sec. 5801 et seq.), hence NFA. Title 1 is generally referred to as the Gun Control Act of 1968, (18 U.S.C. sec. 921 et seq.). NFA weapons are also sometimes called class 3 weapons, because a class 3 SOT (special occupational taxpayer) is needed to deal in NFA weapons.

NFA weapons include categories such as machine guns, sound suppressors, short barreled shotguns, short barreled rifles, destructive devices and items classified as "any other weapons". NFA weapons do not include the semi-automatic rifles and shotguns which have been since at least 1994 misclassified by many in Congress, government agencies, and the media as “assault weapons.”

Under the provisions of Federal law, anyone over the age of 21 who is not otherwise prohibited from owning a firearm may purchase and own National Firearms Act weapons which include machine guns, sound suppressors (i.e., silencers), short barreled rifles, short barreled shotguns, an other unusual types of weapons commonly classified as an "Any Other Weapon", and destructive devices. Tennessee law does not regulate, prohibit possession of or prohibit the purchase of NFA weapons. The applicable code section is Tennessee Code Annotated § 39-17-1302(b)(7) which provides in relevant part:

(a) A person commits an offense who intentionally or knowingly possesses, manufactures, transports, repairs or sells:

. . . ;

(3) A machine gun;

(4) A short-barrel rifle or shotgun;

(5) A firearm silencer;

. . .
 

(b) It is a defense to prosecution under this section that the person's conduct:

(1) Was incident to the performance of official duty and pursuant to military regulations in the army, navy, air force, coast guard or marine service of the United States or the Tennessee national guard, or was incident to the performance of official duty in a governmental law enforcement agency or a penal institution;

(2) Was incident to engaging in a lawful commercial or business transaction with an organization identified in subdivision (b)(1);

(3) Was incident to using an explosive or an explosive weapon in a manner reasonably related to a lawful industrial or commercial enterprise;

(4) Was incident to using the weapon in a manner reasonably related to a lawful dramatic performance or scientific research;

(5) Was incident to displaying the weapon in a public museum or exhibition;

(6) Was licensed by the state of Tennessee as a manufacturer, importer or dealer in weapons; provided, that the manufacture, import, purchase, possession, sale or disposition of weapons is authorized and incident to carrying on the business for which licensed and is for scientific or research purposes or sale or disposition to the organization designated in subdivision (b)(1); or

(7) Involved acquisition or possession of a sawed-off shotgun, sawed-off rifle, machine gun or firearm silencer which is validly registered to the person under federal law in the National Firearms Registration and Transfer Records. A person who acquires or possesses a firearm registered as required by this subdivision shall retain proof of registration.

(c) It is an affirmative defense to prosecution under this section which the person must prove by a preponderance of the evidence that:

(1) The person's conduct was relative to dealing with the weapon solely as a curio, ornament or keepsake, and if the weapon is a type described in subdivisions (a)(1)-(5), that it was in a nonfunctioning condition and could not readily be made operable; or

(2) The possession was brief and occurred as a consequence of having found the weapon or taken it from an aggressor.

(d)(1) An offense under subdivisions (a)(1)-(5) is a Class E felony.


(2) An offense under subdivisions (a)(6)-(8) is a Class A misdemeanor.
 

Thus, so long as the machine gun, short barreled rifle or short barreled shotgun are either “non-functioning” or, if functioning, acquired in compliance the National Firearms Act, the weapons may be legally owned by a civilian in Tennessee.

In order to purchase a National Firearms Act weapon, a proposed purchaser must complete an ATF Form 4 - "Application for Tax Paid Transfer and Registration of Firearm." Note that the National Firearms Act was passed in 1934 as part of the Internal Revenue Code at a time when the federal government admitted that it could not ban firearms but asserted that it could tax them in order to regulate their ownership and transfer (as if the criminals who they were concerned about really cared about paying taxes). Therefore, the National Firearms Act is a part of the Internal Revenue Code and imposes transfer taxes on these regulated firearms.

The ATF Form 4 identifies the individual who wants to purchase or acquire the weapon, who it is being transferring the weapon, a description of the firearm with serial number, and a section for the Chief Law Enforcement Officer (CLEO) certification. It is submitted to the ATF in duplicate with fingerprints, a photograph, and the appropriate transfer tax ($200 for most weapons, $5 for "Any Other Weapons"

In Tennessee, as in other states, it has traditionally been the CLEO certification that has caused problems for individuals who wanted to make purchases of NFA weapons. The CLEO certification section reads:

"I certify that I am the chief law enforcement officer of the organization named below having jurisdiction in the area of residence of (your name here). I have no information indicating that the transferee will use the firearm or device described on this application for other than lawful purposes. I have no information that the receipt and/or possession of the firearm described in item 4 of this form would place the transferee in violation of State or local law."

Many local law enforcement officers, particular since the early 1980's, have simply refused to sign these forms often because they did not believe that individuals had a right or a need to own these types of weapons. Federal law did not require the CLEO’s to sign the forms but the ATF took the position that it would not process the transfer requests without the CLEO certification.

Thus, another relatively recent change in state law was brought about because of repeated instances throughout Tennessee where the chief law enforcement officers (the sheriff in most counties) would simply refuse to sign off on Federal NFA applications by individuals for the transfer of registered firearms. As a consequence, the Tennessee Legislature, with practically no debate, enacted a law which now requires the “chief law enforcement officers” - generally the sheriffs but in Davidson County the chief of police - to sign these forms within 15 days of a request.

§ 39-17-1361. Purchase of firearms; requests for documentation from law enforcement officials (2004)

The sheriff or chief of police of the city of residence of a person purchasing any firearm, defined by the National Firearms Act, 26 U.S.C. § 5845 et seq., shall execute within fifteen (15) business days of any request all documents required to be submitted by the purchaser if the purchaser is not prohibited from possessing firearms pursuant to § 39-17-1316.
 

Added by 2003 Pub. Acts, c. 275, § 1, eff. July 1, 2003.

What should have been done by an elected official by their oath to follow the law required the passage of a specific law in Tennessee to force these public officials to do that which was always within their power and duty to do.