MEMORANDUM
FROM:
Sid Hemsley, Senior Law Consultant
DATE:
April 5, 2010
RE:
Legality of ordinance permitting the carrying of the “army or navy pistol” in the open
hand
You have the following questions:
1. Is the ordinance of the City, which prohibits the carrying of a variety of
weapons “with the intent to go armed,” except the “army and navy pistol in the open
hand,” legal?
2. Can the City repeal the ordinance?
The facts that generated this question have a person carrying a loaded pistol in his open
hand on a busy street in the City. The person in question had a carry permit.
Answers to Questions
The answer to question 1 is not clear. I will discuss the reasons for that conclusion
below. However, it is inevitable a person carrying a pistol in his open hand, carry permit
notwithstanding, is almost inevitably going to be at least detained and his weapon temporarily
seized. His detention and the temporary seizure of his weapon is supported by statute and case
law.
The answer to question 2 is that with respect to the City, the ordinance can be repealed.
With respect to the general problem that other cities in Tennessee might have such ordinances, it
appears to me that legislation invalidating such ordinances might be appropriate. The state law
prohibiting the carrying of certain weapons, “except the army or navy pistol which shall be carried
in the open hand” was amended in the comprehensive revision of the state’s criminal statutes in
1989, to eliminate that exception. But, as will be seen below, a statute preserves municipal gun
control ordinances (and resolutions) enacted before April 6, 1986.
ANALYSIS OF QUESTION 1
General history of the army and navy pistol exception in state law
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The ordinance in question, found in ' 11-602 of the Municipal Code, provides that:
It shall be unlawful for any person to carry in any manner whatever,
with the intent to go armed, any razor, knife, blackjack, brass
knucks, pistol, revolver, or any other dangerous weapon or
instrument except the army or navy pistol which shall be carried
openly in the hand....
That same or similar provision was found in the 1973 MTAS sample code, and possibly
MTAS sample codes before that date. It was removed from MTAS sample codes sometime
subsequent to 1982, probably around 1985 or 1986. However, it is probably contained in some
municipal codes in Tennessee to this date; obviously your City’s being among them. That
ordinance had some basis in an old statute dating back to the 1870s, and is the subject of at least
one Tennessee case in 1928. The basis of the statute was what is now Article I, ' 26 of the
Tennessee Constitution, and cases that have interpreted it, dating back to the 1830 Tennessee
Constitution.
Article 1, Section 26 of the 1870 (the present) Tennessee Constitution provides that:
The citizens of this State have a right to keep and to bear arms for
their common defense; but the Legislature shall have power, by law
to regulate the wearing of arms with a view to prevent crime.
The addition of the provision giving the state legislature the right to control the wearing of
arms was an addition to the right to bear arms provision of the Tennessee Constitution. In its
original 1796 text, the right to bear arms provision read: “That the freemen of this state have a
right to keep and to bear arms for their common defense.” (The 1834 right to bear arms provision
provided: “That the free white men of this State shall have a right to keep and to bear arms for
their common defense.”)
But the right of the state legislature to regulate the “carrying” of arms was established well
before the present 1870 Tennessee Constitution was adopted. In Aymette v. State, 21 Tenn.
141 (1840), a state statute prohibited the open or concealed wearing of a Bowie knife (Arkansas
toothpick). The defendant convicted of violating that statute challenged his conviction, arguing
that the right to bear arms provision of the 1834 Tennessee Constitution gave him the right to
carry the knife any way he chose. But in upholding his conviction, the court declared that:
The legislature, therefore, have a right to prohibit the wearing or
keeping of weapons dangerous to the peace and safety of the
citizens, and which are not usual in civilized warfare, or would not
contribute to the common defense. [At 156-57]
The Bowie knife, said the court, did not meet that standard.
But in Andrews v. State, 50 Tenn. 165 (1871), a case interpreting the right to bear arms
provision of the 1870 Tennessee Constitution, the court gave some clues about what weapons
the legislature could prohibit, and which it could regulate but not prohibit. That case involved the
application of an 1870 state statute under which it was unlawful “for any person to publically or
privately carry a dirk, sword, cane, Spanish stiletto, belt or pocket pistol or revolver.” [My
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emphasis] The defendant was indicted for carrying a pistol, but the indictment did not specify what
kind of pistol. The state attorney general argued that the 1870 amendment to the right to bear
arms provision of the Tennessee Constitution gave the state legislature the “power to prohibit
absolutely the wearing of all and every kind of arms, under all circumstances.” [At 180]
The court held that as far as the statute prohibited citizens from “either publically or
privately to carry a dirk, sword cane, Spanish Stiletto, belt or pocket pistols,” the statute was
constitutional. [At 186] But as to pistols designated revolvers, “We know there is a pistol of that
name which is not adapted to the equipment of the soldier, yet we also know that the pistol known
as the repeater is a soldier’s weaponBskill in the use of which will add to the efficiency of a
soldier.” [At 187]
As to the latter kind of pistol, the statute was unconstitutional. However, the court declared
that the legislature could even regulate the manner of wearing military weapons, as long as the
regulation was related to the prevention of crime. “If the Legislature think proper,” said the Court,
“they may by a proper law regulate the carrying of this weapon publically, or abroad, in such a
manner as may be deemed most conducive to the public peace, and the protection and safety of
the community from lawless violence.” [At 188]
Public Acts 1879, Chapter 186, appears to have statutorily made the military revolver the
“army or navy pistol.” That Act amended the previous act that regulated the carrying of weapons
in Tennessee, and provided that:
[I]t shall not be lawful for any person to carry, publically or privately
any dirk, razor concealed about his person, sword cane, Spanish
stiletto, belt or pocket pistol, revolver, or any kind of
pistol, except the army or navy pistol, usually used in warfare, which
shall be carried openly in the hand, or loaded cane, sling-shot,
brass knucks....
With slight modifications, that statute remained essentially the same until the criminal laws
of the state were extensively amended and reorganized by Public Acts 1989, Chapter 591. With
respect to illegal weapons, that Act contains no reference to the “army or navy pistol.” Presently,
Tennessee Code Annotated, Title 39, Chapter 17, Part 13 reflects the prohibitions on the
possession and carrying of weapons, Tennessee Code Annotated, ' 39-17-1301 defines various
weapons for the purposes of that part, Tennessee Code Annotated, ' 39-17-1302 contains a list
of prohibited weapons, and Tennessee Code Annotated, section 39-17-1307(a)(1) provides that
“A person commits an offense who carries with the intent to go armed a firearm, a knife with a
blade length exceeding four inches (4”), or a club.”
The army and navy pistol exception in municipal ordinances
The right of Tennessee municipalities to regulate weapons is prohibited by Tennessee
Code Annotated, section 39-17-1314, with one major exception:
No city, county, or metropolitan government shall occupy any part
of the field of regulation of the transfer, ownership, possession or
transportation of firearms, ammunition or components of firearms or
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a combination thereof; provided, that the provisions of this section
shall be prospective only and shall not affect the validity of any
ordinance or resolution lawfully enacted before April 8, 1986.
You may recall that Metro Legal Opinion 2009-03 opines that Metro was authorized to
prohibit the carrying of guns in parks by virtue of an ordinance enacted in 1966 that prohibited
carrying guns in such places. Your City’s ordinance appears to be the product of Ordinance
71-6, which presumably indicates the ordinance was adopted in 1971.
As far as I can determine, the question of whether a municipality could, before that date,
enact weapons carrying limitations by ordinance has come up only once, somewhat indirectly. In
Glasscock v. City of Chattanooga, 11 S.W.2d 678 (Tenn. 1928), a Chattanooga city ordinance
made it a misdemeanor “to carry on or about the person any pistol, sword cane, Bowie knife,
Spanish stiletto, dirk or other deadly weapon.” [At 678] Citing Andrews v. State, the court
overturned the convictions on the ground that the state statute governing the carrying of arms
allowed the carrying of the army and navy pistol, usually used in warfare, which shall be carried
openly in the hand.” [At 678] No issue was raised in that case about the legality of the city’s
conversion of the state law on the carrying of weapons to a municipal ordinance. Indeed, the
court itself indicates that if the city ordinance tracked the state law, and had the indictment in the
case indicated that the pistol carried by the defendants was not the army or navy pistol, the
conviction would have stood.
The city had also argued that the inadequacy the court found in the city’s ordinance on the
carrying of pistols in the city was cured by another ordinance which read: “Any person doing or
causing to be done in this City, an act or acts, which by the laws of Tennessee are holden to be a
misdemeanor said person shall be considered a violator [of] this ordinance and on conviction shall
be punished according to this Ordinance....” [At 678]
The court rejected that argument, declaring that “The city warrants under which the
defendants below were prosecuted only charged the commission of the offence of unlawfully
carrying a pistol. This is an inadequate charge under section 6641, Thompson’s-Shannon’s Code,
if said section be a part of the law of Chattanooga.” [At 679] The court then concluded that, “It
follows that none of the defendants below were charged with any offense denounced by a valid
ordinance.....” [At 679] Presumably had the ordinance exempted the army or navy pistol it would
have been a valid ordinance (although the indictment would have still been defective).
Glasscock has not been cited in any reported or unreported cases in Tennessee. In fact,
I can find no other reported or unreported cases involving a municipal ordinance regulating the
possession or carrying of weapons.
I know of no reason that the police officers of the City could not take any charge of carrying
an illegal weapon under Tennessee Code Annotated, ' 39-17-1307 to the state, rather than the
municipal, court, in which case the question of whether the weapon is an army or navy pistol
would not be an issue.
Furthermore, under the Municipal Court Reform Act of 2004 as amended, codified in
Tennessee Code Annotated, ' 16-18-301 et seq., municipalities are entitled to convert to
violations of municipal ordinances those state offenses that are Class C misdemeanors and for
which the municipality prescribes a maximum penalty of $50, but only if the ordinance “mirrors,
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substantially duplicates or incorporates by cross reference the language of a state criminal statute
....” [Tennessee Code Annotated, ' 16-18-302(a)(2).] A strong argument can be made that '
11-602 of the Municipal Code does not mirror or substantially duplicate Tennessee Code
Annotated, ' 39-17-1307, because it contains an exception for the army and navy pistol that was
removed from that state statute in 1989. It is true that Tennessee Code Annotated, ' 39-17-1314
preserves municipal ordinances on gun control in effect on April 8, 1986, but the Municipal Court
Reform Act of 2004 is obviously the latter statute. It appears to me that there is an irreconcilable
conflict between Tennessee Code Annotated, ' 39-17-1307 and Tennessee Code Annotated, '
16-18-302, at least as to city’s preservation of its carry regulations. The irreconcilable conflict
arises from the fact that that ordinances cannot be preserved that cannot be adopted or
maintained past the time that the state criminal law upon which the ordinance is based is changed
to the extent that the ordinance does not mirror or substantially track the state criminal law.
Under the rules of statutory construction, a later statute can by implication repeal an earlier statute
to the extent the two statutes conflict. Repeals of statutes by implication are not favored, but an
irreconcilable conflict between them recognized repeal by implications as a matter of necessity.
[State v. Lewis, 278 S.W.2d 81 (1955); State, Department of Revenue v. Moore, 722 S.W.2d 367
(Tenn. 1986); Brown v. Knox County, 39 S.W.3d 585 (Tenn. Ct. App. 2000). Harman v. Moore’s
Quality Snack Food, Inc., 815 S.W.2d 519 (Tenn. Ct. App. 1991).]
In addition, Tennessee Code Annotated, ' 39-17-1307(a)(1) makes the carrying of the
weapons enumerated therein, “with intent to go armed,” an offense. Subsection (2)(A) of that
statute, makes the first offense a Class C. misdemeanor, for which it prescribes a penalty of, “in
addition to possible imprisonment as provided by law,” a fine not to exceed $500. Subsection
(2)(B) of that statute makes the second offense of that statute a Class A misdemeanor, and
subsection (2)(c) provides that, “except that it is a violation of subdivision (a)(1) is a Class A
misdemeanor if the person’s carrying of a handgun occurred at a place open to the public where
one (1) or more persons were present.” Even if it is assumed that the City could have converted
Tennessee Code Annotated, ' 39-17-1307(a)(2)(A) into a municipal ordinance violation (for
which it could levy a fine of only $50, when the state statute provides for potential imprisonment
and today a fine of up to $500), it could not have converted subsections (a)(2)(B) or (a)(2)(c) into
such violations, they being Class B and Class A misdemeanors, respectively.
It can also be argued that the regulation of the carrying of weapons is strictly
a function of the General Assembly that cannot be delegated to municipalities. Article I, Section
26 of the Tennessee Constitution says as much, speaking of the right of Tennessee citizens to
keep and bear arms for their common defense, “but the Legislature shall have power, by law, to
regulate the bearing of arms with a view to prevent crime.” I am not sure how such an argument
would be resolved by the courts. Tennessee Attorney General’s Opinion 09-158 opines that the
General Assembly has the authority under Article I, Section 26 of the Tennessee Constitution to
allow municipalities to opt in and opt out of the “guns in parks” laws, while the Shelby County
Attorney in a legal opinion to the Shelby County Mayor, dated July 10, 2009, disagrees. It
appears to me that the Shelby County Attorney has the more solid legal argument. The question
of whether the General Assembly has the authority, in the face of Article I, Section 26 of the
Tennessee Constitution, to preserve gun control ordinances enacted before April 6, 1986, raises
questions similar to those contained in those opinions. For that reason, I will attach those opinions
rather than recite their arguments.
A provision in the Tennessee carry permit statute and case law dealing with the right of the
police to temporarily detain armed citizens and to temporarily seize their weapons are pertinent
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here. Tennessee Code Annotated, ' 39-17-1308 contains several defenses to Tennessee Code
Annotated, ' 39-17-1307, including when the carrying is “(2) By a person authorized to possess
or carry a firearm pursuant to ' 39-17-1315 or ' 39-17-1351.” Section 39-17-1315 involves
carrying by police and other officers, but ' 39-17-1351 involves carrying by persons who have a
carry permit.
Under Tennessee Code Annotated, ' 39-17-1351(t), the person who has a carry permit is
subject to being temporarily disarmed by a police officer, whether the gun for which he has a carry
permit is loaded or unloaded:
Any law enforcement officer of this state or of any county or
municipality may, within the realm of the officer’s lawful jurisdiction
and when the officer is acting in the lawful discharge of the officer’s
official duties, disarm a permit holder at any time when the officer
reasonably believes it is necessary for the protection of the permit
holder, officer or other individual or individuals. The officer shall
return the handgun to the permit holder before discharging the
permit holder from the scene when the officer has determined that
the permit holder is not a threat to the officer, to the permit holder, or
other individual, or individuals, provided that the permit holder has
not violated any provision of this section and provided that the
permit holder has not committed any other violation that results in
the arrest of the permit holder.
It seems patently obvious that anybody who is carrying a handgun in his open hand down
the street of a city anywhere in Tennessee is likely going to be stopped by a police officer
concerned about the safety of the city’s residents and his own safety, until he determines that the
person is not a threat to him, or to any other person, as evidenced by a legitimate carry permit.
It is probably a very short distance between the officer’s observation of a person with a pistol in his
open hand, to the officer’s “reasonable belief” that the person should be disarmed for the
protection of the police officer, or other persons.
Where a police officer observes a person either carrying a weapon, or otherwise
possessing a weapon, in plain sight, the police officer’s right to temporarily detain the person and
seize the weapon pending an investigation appears very broad. It is said in the U.S. Sixth Circuit
case of United States v. Bishop, 338 F.3d 623 ( 2003), that
The Fourth Amendment prohibits unreasonable searches and
seizures. [Citation omitted by me.] In delineating the contours of the
Fourth Amendments warrant and probable cause requirements for
searches and seizures, the Supreme Court has recognized several
exceptions that acknowledge the need for police officers to protect
themselves and the public from violence in circumstances where it
would not be practical to require the officer to secure a warrant and
where probable cause may be lacking. [Citations omitted by me.] ....
As this Court has noted: “Obviously, the Constitution does not limit
the government officer’s rights to protect themselves from assault
when their fear is reasonably based on objective facts.” [Citation
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omitted by me.] [At 626]
“The Sixth Circuit,” continued the court:
has twice approved of police seizure of a weapon that was not
obvious contraband based on an officer’s reasonable belief that the
weapon posed a threat to officer safety. United States v.
Chapman interpreted Terry as permitting a police officer executing
a search warrant to temporarily seize a weapon that was in plain
view but was not obvious contraband provided the seizure was
justified by a legitimate concern for police safety. [Citation omitted
by me.] [At 626-27]
Bishop, above, involved a Tennessee deputy sheriff making a seizure of a handgun inside
a car and the arrest of its owner when it was not initially apparent that the handgun was
contraband. The Court declared that:
We find that the gun became contraband and subject to seizure
when Deputy Julian discovered that it was loaded. Tennessee law
permits the transportation of a handgun in a vehicle provided that is
[sic] unloaded and not concealed on or about the person
possessing or carrying it, and the ammunition for the weapon is not
in the immediate vicinity of the person or weapon. Tenn. Code
Ann. ' 39-17-1308(a)(1). The district court held that Deputy Julian
had no reason to assume that the handgun indicated criminal
activity because the handgun could have been lawfully possessed
at the time under Tennessee’s handgun permit law. We disagree.
Tennessee law entitles a handgun carry permit holder to carry a
loaded handgun on his or her person provided that the handgun is
legally owned or possessed by the permit holder and the permit
holder has the permit in the holder’s immediate possession at all
times when carrying the handgun. Id ' 39-17-1351(n). A
reasonable officer could believe that Tennessee law is violated if a
handgun permit holder leaves a loaded handgun unattended in a
vehicle. [At 628]
Even though Bishop involved the seizure by the deputy of a handgun in a car, that case
clearly stands for the proposition that a police officer who sees a person walking down the street
with a handgun carried in his open hand generally has a reasonable fear for his own safety and
the safety of others before he ascertains whether the person has a valid carry permit. For that
reason, the officer generally has a right to temporarily detrain that person and seize his weapon
until he can determine that the carrier has such a permit Bishop says as much, concluding, that:
In sum, we hold that a police officer who discovers a weapon in
plain view may at least temporarily seize that weapon if a
reasonable officer would believe, based on specific and articulable
facts, that the weapon posed an immediate threat to officer or public
safety.... [At 628]
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Also see the unreported case of Cross v. City of Chattanooga, 2005 WL 2456977 (E.D.
Tenn.)
ANALYSIS OF QUESTION 2
I know of no reason that the City could not simply repeal the municipal ordinance in
question. There is nothing in the language of Tennessee Code Annotated, ' 39-17-1314 or any
other state gun regulation that I can find that imposes on any municipality having such ordinances
the obligation to retain them, or that otherwise limits the power of the city to pass, but not repeal,
the ordinance. Generally, the power of a municipality to repeal an ordinance is by necessary
implication as broad as its power to pass it. [Schultenbrand v. City of Knoxville, 788 S.W.2d 812
(Tenn. Ct. App. 1989)] There are some exceptions to that general rule, such as when the
ordinance is contractual in nature, or where the ordinance is passed under a grant of authority to
do one thing. [Patton v. Mayor of Lexington, 626 S.W.2d 5 (Tenn. 1981)] Neither exception
applies to the ordinance at issue under which the City regulated the carrying of firearms.
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