Tennessee Hearing Protection Act: How it Affects the NFA Process
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Tennessee Hearing Protection Act: What’s Changed?
From the desk of eSilencers CEO, John Rich
As a Class 3 dealer in TN, one of the main questions I have gotten the past month or so has been if the requirements for a Silencer to go through the NFA process changed with the Tennessee Hearing Protection Act going into effect July 1st, 2017. There has been a lot of confusion about this bill. However, TBI ended that confusion recently with the below email:
Effective July 1, 2017, the Tennessee Hearing Protection Act became law in Tennessee. Tennessee Code Annotated § 39-17-1316 regulates firearm sales and requires a person to be, “appropriately licensed by the federal government to stock and sell firearms to persons desiring them.” A firearm, for purposes of TCA § 39-17-1316, is “any weapon designed, made or adapted to expel a projectile by the action of an explosive or any device readily convertible to that use.” Although the State of Tennessee does not define a firearm silencer as a firearm under § 39-17-1316, a firearm muffler or firearm silencer is a firearm under the Gun Control Act of 1968, as amended (GCA). It is the GCA, not Tennessee Code Annotated, that requires an FFL for a person to engage in the business of selling a firearm in Tennessee. Additionally, the National Firearms Act (NFA) also governs firearm silencers. Anyone engaging in the business of dealing/manufacturing/importing, making, manufacturing, possessing, receiving, transporting, or delivering a firearm silencer must be in compliance with the NFA, including payment of any special (occupational) tax, payment of any transfer tax, receipt of required approvals, and proper registration of the firearm in the National Firearms Registration and Transfer Record. Any transfer of a silencer must be in compliance with the GCA and the NFA, including a background check, Form 4473 for dealer to non-licensees, Form 4, 5, or 10, etc.
Our Take on the Tennessee Hearing Protection Act
Unfortunately, the Hearing Protection Act in general has caused enough confusion, and with the TN Hearing Protection Act going into effect July 1st, 2017, this has caused even more confusion for TN residents who are anxiously waiting for Suppressors to be taken off the NFA list. So, you might ask why even do this bill if nothing changed? Well, before the TN HPA, the state of TN had Silencers categorized as “illegal items”, but gave an exception that states “unless compliant with the NFA.” In which gave the exception that Silencers were illegal unless you went through the NFA process. With this new bill, it paves the way that if the federal HPA passes, that Silencers in TN will not rely on compliance with the NFA process(since Silencers will not be under NFA laws if the HPA passes). If TN did not pass this bill, Silencers would all of sudden become illegal if the federal HPA passes.
Even though nothing really changed currently, we fill that TN took a necessary step to protect their citizens if the HPA passes. In the meantime, we at esilencers.com and West TN Tactical will continue to make the NFA process as easy as you possibly can, and we want to assure you that we have absolutely the easiest process for purchasing Suppressors in Tennessee!
We recently published a post further describing the Tennessee Hearing Protection Act. Check it out here. In the meantime, we encourage you to continue supporting this industry, and check out our suppressors online at www.esilencers.com.
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I sorta agree, you might want to check me out as I am not an attorney and nothing I comment on should be construed as providing legal advice or the practice of law – but as I read the TN HPA, it simply deleted silencers from the defined list of illegal items. The definitions therein practically mirror the GCA/NFA. titles 18 & 26/7 of the USC. (federal law)
Here is a copy of the chaptered TN HPA/bills http://publications.tnsosfiles.com/acts/110/pub/pc0339.pdf
And here is an (outdated – 2014 version) of the TCA – see section 5 of TCA 39-17-1301 and Section 2 of the chaptered bill. You see, it just deletes silencers as prohibited under the state law – Silencers are still 100% NFA regulated.
I would assume, and we know how dangerous that can be, that the main purpose of the TN statute in question was to provide a path in TN courts (via TCA Title 39 Criminal Offenses) to prosecute weapon violations (otherwise, it would have to be a federal case heard in a federal court via USC Title 18 Crimes and Criminal Procedure). The federal government occupies the field, TN cannot make something legal the federal government made illegal. If the federal law permits, a state can make a law more restrictive. Any conflicts, feds win.
To my non -attorney analysis, the issue was in the construction of the TN statute. Because it was a law made possession of defined items illegal and hinged the only legal possession on the federal law with no other remedy – should the NFA have deregulated any item prohibited by TN law it WOULD NOT have made silencers illegal per se – as to do so would be unconstitutional act rendering the law unenforcable. And if one part of the law is invalid, the entire law would be invalid. It is all about how the TN law was originally constructed.
There is a concept in statutory construction called “severability” often used in very large and complex laws which states; basically if one part of the act is deemed invalid, the remainder is still enforceable.
Generally it sounds/looks something like:
SECTION [no.]. If any provision of this act or application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provision or application, and to the end of the provisions of this act that are declared severable.
Without severability, the entire state law could, in theory and upon challenge, be tossed. (just guessing, not an attorney or anything…)