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TENNESSEE LAWS ON THE
PURCHASE AND SALE OF FIREARMS

Tennessee Statutes and Regulations.

While most of the legal framework concerning the purchase and sale of firearms is established by the federal standards and threshold, there are still a number of Tennessee statutes which supplement the federal scheme concerning the purchase and sale of firearms. The bulk of these state statutes address the fact that Tennessee’s Legislature decided in early 1998 to opt out of the National Instant Check System (“NICS”), which is a portion of the Brady law that went into effect in November 1998.

Rather than participate in the NICS system under which the Federal Bureau of Investigation would perform background checks on retail firearms purchases in Tennessee, Tennessee opted out of the Federal system and established the Tennessee Instant Check System (“TICS”) under which the Tennessee Bureau of Investigation is designated as the “point of contact.”

Much of the decision by the Tennessee Legislature to opt out of the Federal NICS system took place very early in 1998 during informal meetings with the House Judiciary Committee. At that time, the Federal government was still conducting hearings on the implementation of the NICS program. In those hearing it was anticipated that the FBI would be charging approximately $27 for each NICS check. Rather than allow Tennessee to be included in the NICS system, the Tennessee Legislature opted out of the Federal program. It set the TICS fee at $10 per transaction which was the amount charged by Davidson County Police Department for firearms purchase background checks at the time. Ultimately, the Federal government decided that the NICS checks would be done at no charge to the firearms purchasers and, since that time, efforts have been made in the Tennessee Legislature to either remove the $10 fee in Tennessee or to opt into the federal program (however, a fiscal impact of approximately $2,000,000 to $4,000,000 per year in potentially lost revenue is very hard for a money hungry government to forego).

During the first reporting year (November 1998 to December 1999), the Tennessee Bureau of Investigation reported that it processed 303,509 TICS requests covering 330,188 firearms. As of February 2005, the total TICS checks processed since November 1998 is 1,382,285 covering 1,507,812 firearms. These background checks cover just the retail purchases of firearms from licensed dealers. “Casual” sales, i.e., sales between individuals, and sales to law enforcement and government agencies are not included in the TICS statistics.

So, what are the statutes under Tennessee law which address the transfer of ownership of firearms? Tennessee Code Annotated § 39-17-1316 has been on the books since the overhaul of Tennessee’s criminal code in 1989. It is now the primary statute under state law concerning the sale of firearms in Tennessee. In many respects, it mirrors the federal statutes. It has undergone several amendments since 1989 with the most notable being in 1998 and again 2001. In 1998, this code section was amended to implement the TICS program.

One problem that quickly surfaced under the TICS program was the position taken by the Tennessee Bureau of Investigation that a proposed purchase would be automatically denied if a computerized criminal history background check revealed that the individual had been arrested on any charge which might have been a felony and for which the computerized records did not contain sufficient information concerning the final disposition of the criminal charge (a situation that is also referred to as a “open disposition”). See, Rules of the TBI, 1395-1-3-.05.(8-10). The circumstance of an open disposition was a common problem since the arresting agencies tended to be better at reporting arrests than the courts were at reporting final dispositions so that the FBI databases could be kept current.

When the TBI denied a proposed purchase under the TICS program because of an open disposition or any other questionable criminal history check, the TBI notified the proposed purchaser that they had the ability to appeal that determination. The TBI then required the individual to obtain certified copies of records from the arresting agency and/or the court which established the final disposition of the charges so that a determination could be made concerning whether it was a disqualifying felony conviction. This appeals process often required the assistance of an attorney and was often costly or even cost-prohibitive for individuals. Furthermore, nothing in the law required local agencies to cooperate in clearing criminal records of incomplete information and in many instances relevant records no longer existed.

Significantly, nothing in either state or federal law required the TBI to issue denials on open dispositions, it simply decided to do so under those circumstances because an individual “might” have a felony conviction. Because of the numerous problems with incomplete criminal records and the manner in which TBI had elected to handle the background checks, the Tennessee Legislature amended this statute in 2001 to put the burden on the TBI to establish that the individual is a prohibited person within 15 days. Under the 2001 amendment, if the TBI could not establish that the individual was prohibited, it had to allow the transfer to go forward.