USA – -(Ammoland.com)- Welcome back to The Legal Brief, the show where we CRUSH the various legal myths and misinformation surrounding various areas of the gun world. I’m your host Adam Kraut and today we are talking about some big news out of the Volunteer State, the Tennessee Hearing Protection Act.
Before we get started for those of you wondering I did not win the 76th seat at the NRA annual meeting. Despite our best efforts, we fell 60 votes shy, but it sure wasn’t for lack of effort or enthusiasm. In fact, the enthusiasm amongst you was very apparent.
The good news, we were able to get about 800 more people to vote this year than last year, bringing the total number of votes at the annual meeting to over 2,000. And don’t worry, I haven’t given up on my quest to serve you. I’ll be relaunching my website adamkraut.com shortly so stay tuned for that to see how you can help.
As some of you may have heard, Tennessee’s Governor signed a bill into law decriminalizing the manufacture and possession of silencers in the state. And for those of you scratching your head, silencers on a state level were technically illegal in Tennessee. Like a number of states, Tennessee’s law provided that it was an affirmative defense to prosecution if a person had complied with the National Firearms Act. An affirmative defense is when the defendant admits guilt or wrongdoing, but introduces facts or explanations to justify his conduct. In other words, if you were charged with violating the old version of the law and you were able to show that the silencer was registered in accordance with the NFA, you would have a defense against that prosecution. Which begs the question, what is this law going to do and how does federal law effect it?
Senate Bill 921 was a fairly simple bill amending only two sections of Tennessee law. The bill removed the term “firearm silencer” from the definition section of the code and amended the prohibited weapons section to no longer include a silencer in any capacity. As such with the stroke of a pen, Tennessee no longer classified silencers as prohibited weapons nor restricts the possession of them. It is worth noting that the law takes effect on July 1, 2017, so for those of you eager beavers out there, I’d hold off on doing anything post haste.
While at first blush this seems like a big step forward, and in many regards it is, what did the bill actually accomplish? As you may remember, federal law reigns supreme, which means the National Firearm Act still controls. Essentially, we are looking at a situation that we saw play out in California and other states that slowly legalized marijuana. While at the state level certain conduct is no longer prohibited, it is still illegal at the federal level, or in this instance, requires compliance with the National Firearms Act.
In essence, come July 1, 2017, anything that used to be unlawful in Tennessee with regards to the possession, transportation, manufacture, repair or sale of silencers will not longer be a crime at the state level. However, that does not mean you can simply do whatever you want as you would be subjecting yourself to the perils of violating federal law.
While not involving Tennessee, late last year a jury convicted two men from Kansas of violating federal law by manufacturing and selling silencers, even though Kansas had a similar law in place. Kansas’s law protected its citizens’ Second Amendment rights by exempting them from federal gun control. And you can see how well that worked out…spoiler alert…it didn’t.
Which begs the question, why did Tennessee even bother to pass the bill? Well, there are a number of reasons, including those which involve state’s rights and the Tenth Amendment. For those that don’t recall all of the amendments in the Bill of Rights, that’s the one that says “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
As we have seen in the context of marijuana laws, depending on the administration in office, there are time where the federal agencies are more inclined to enforce the prohibition against marijuana and there are times when they are not. It is possible that we will see a similar trend with regard to firearms laws passed by states which “nullify” federal laws. However, I certainly would not want to be the test case for that. In short, it seems that the Tennessee HPA, at the very least, would remove any issues one may encounter within the state as far as legal silencer possession at the state level. However, federal law controls and as such, it better be in compliance with the NFA, assuming you don’t want to be prosecuted.
Hopefully that gives you a better understanding of the Tennessee Hearing Protection Act. If you guys liked this episode, you know what to do, hit that like button and share it around with your friends. Have a question you want answered on this show, head over to The Legal Brief section on theguncollective.com. Don’t forget to like The Gun Collective on Facebook, Instagram, YouTube, Full 30, Snap Chat and wherever else you can catch us on social media.
And as always thanks for watching!
Links for this episode:
- TN Senate Bill 921 : https://www.capitol.tn.gov/Bills/110/Bill/SB0921.pdf
- Tenn. Code Ann. § 39-17-1301 : https://law.justia.com/codes/tennessee/2010/title-39/chapter-17/part-13/39-17-1301
- Tenn. Code Ann. § 39-17-1302 : https://law.justia.com/codes/tennessee/2010/title-39/chapter-17/part-13/39-17-1302
- Kansas’s Second Amendment Protection Act : https://www.kslegislature.org/li_2014/b2013_14/measures/documents/hb2199_00_0000.pdf
- Kansas Men Guilty Despite State Exemptions : https://www.guns.com/2016/11/15/jury-finds-kansas-men-guilty-on-weapons-charges-despite-state-exemptions/
- Tenth Amendment : https://www.law.cornell.edu/constitution/tenth_amendment
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First off, your statement about “Federal law” reigns supreme is BS. Read the 10th amendment. The CONSTITUTION reigns supreme. Who came first the states or the Federal government? The states can ARREST any federal agent that they want. WHO COULD STOP THEM? WHO WOULD STOP THEM?
@mac Are, Read the Supremacy clause of the U.S. Constitution. Who would stop them you ask. Well, that depends upon the circumstances. If your hypothetical federal agent commits an act that is a crime under state law, on his own time, then that federal agent is subject to the state law. I know a federal agent that had to use a week of his annual leave to serve his sentence of a week in county jail for a really bad lapse in driving judgement. The case could have been removed to Federal District Court and taken out of the hands… Read more »
It seems now that Tennessee law enforcement will no longer be obligated to arrest people with suppressors, as they would not be violating Tennessee law. Of course, if apprehended by Federal law enforcement, prosecution and conviction would be the expected result. The big question is – will local LEOs detain people pending the arrival of Federal agents, as a “courtesy” to said Federal agents? In states that legalized pot (e.g., California, Colorado) they generally don’t for marijuana possession & sale – I wonder if they will for state-legalized suppressor possession. (Unless/until Federal laws change, I’d still do the paperwork and… Read more »
Tennessee is run by anti-gun politicians. The Republican leadership in the house refuse to give us meaningful pro-gun legislation like “constitutional carry”, but will give us fluff gun legislation like the Hearing Protection Act to keep their NRA A rating. The governor said he would sign any pro-gun bill that came across his desk, but then worked behind the seems to make sure constitutional carry and other important gun bills were blocked in committee. The NRA gives these anti-gun Republican’s an A rating. Apparently NRA ratings are for sale. The NRA is a bad player in Tennessee.
@PonyPlayer, The NRA consists of people. The NRA is not infallible and gets fooled from time to time. The people of Tennessee need to know about their deceitful governor. Let the cat out of the bag.
The Tennessee Firearms Association has contacted the NRA about reducing these Anti-gun Republicans NRA A rating. The NRA has refused.
So why then is it ok for states like NY, Connecticut, Mass. etc. who have passed so called “assault weapon” bans to do so when these firearms are not banned by Federal Law. Am I mistaken or is there more to it? Just asking and not making a statement.
I can’t figure that one out either. If federal law is the ultimate law, how can a state have a assault weapon ban. It’s almost a double standard.
It’s the same with sanctuary cities. They are illegal federally, yet certain cities/states are implementing them…without consequence. The feds SAY they are going to withhold funding for these states but all I see are gums flapping.
Realistically, if it has nothing to do constitutionally with the law, the states should have the final say in their laws, as the Constitutional laws trump federal laws & state laws…supposedly…although, that part seems to be ignored on a consistent basis.
@LS, So many state legislators, judges, city councils and mayors, county sheriffs are all doing what ever they like. Nor is the federal government doing what they are supposed to be doing. Federal judges ignore the Constitution, and SCOTUS pro-Second Amendment Civil Rights decisions. Nameless bureaucrats exceed their authority. Obama set the standard when he advertised that he was not going to enforce Immigration laws that he did not like and use the agencies to enforce rules that did not exist.
@LS, Your question is ” If federal law is the ultimate law, how can a state have a assault weapon ban.” Your question is about a concept called preemption. First, in a contest between conflicting federal and state laws, the fix is in so that the federal law wins due to removal of the case to federal court and the Supremacy Clause of the US Constitution. The second part of the equation is a concept called preemption. If in passing a federal law, Congress signals its intent that this law should “fill the field” then state regulatory laws are preempted… Read more »
@ras, You are looking for the concept of preemption. It is one of the gaps in the duel sovereignty system.