We often have clients and callers ask us about their ability to buy, possess, and carry a gun in Tennessee while they’re facing criminal charges, and after being sentenced by the court. The Tennessee laws on carrying a gun, both concealed and unconcealed, and with or without a permit, are highly specific. To complicate matters further, this is a topic of law which has seen much recent change due to heated political conversations taking place in the state. So, can you carry a gun in Tennessee after catching criminal charges?
Before we get into the state laws on carrying a gun in Tennessee, let’s take a quick look at federal regulation of firearm possession. Under 18 U.S.C. § 922(g), certain persons are prohibited from possessing a firearm, let alone carrying a handgun on their person. The group of people most frequently charged with violations of 18 U.S.C. § 922(g) are individuals convicted in a state or federal court of a crime that is punishable by more than one year, or in other words, people convicted of felonies. Once an individual is convicted of a felony, they lose certain rights, including the right to possess a firearm. This not only means they cannot personally own a firearm, but also that they must not possess another person’s firearm, such as by having it on their person or in their car. Some other individuals prohibited from possessing a firearm by federal law are those dishonorably discharged from the military, fugitives from justice fleeing prosecution, and individuals addicted to scheduled drugs. A conviction for violating 18 U.S.C. § 922(g) typically carries a sentence of up to 10 years in prison, a fine of up to $250,000, and up to 3 years of supervised release.
Even if you are allowed to possess a firearm under the federal law, there are still grounds upon which the state you live in may deny you a permit to carry a handgun.
Handgun carry permits have been issued by the Tennessee Highway Patrol since 1996, when the responsibility was transferred to the Highway Patrol from local sheriff’s offices. THP is under Tennessee’s Department of Safety and Homeland Security. State law empowers the Tennessean government to regulate the right to conceal and carry firearms, with T.C.A. §39-17-1351 stating “The citizens of this state have a right to keep and bear arms for their common defense; but the general assembly has the power, by law, to regulate the wearing of arms with a view to prevent crime.” Any U.S. citizen or lawful permanent resident of Tennessee who is at least 21 years of age (or is 18 years of age and a veteran or actively serving in the military) may apply to the Department of Safety and Homeland Security for an enhanced handgun permit.
However, THP will inevitably deny certain applicants a handgun carry permit. The primary applicants denied a permit are individuals who were convicted of a felony, but persons convicted of certain misdemeanors may also be denied a handgun carry permit. For example, applicants will be denied if they have ever been convicted of domestic violence or if they have been charged with domestic violence and are awaiting sentencing in court. The same applies for charges of stalking. Similarly, the applicant must not have an Order of Protection or a restraining order filed against them. These restrictions were passed in the interest of protecting victims of domestic violence and stalking from the threat of armed violence. Interestingly, though, the law also restricts certain individuals convicted of driving under the influence from obtaining a handgun carry permit. If an applicant is currently under the jurisdiction of the court for a DUI, or any other Class A misdemeanor conviction for that matter, their application will be denied until their sentence has been completed. If that person completes their sentence for their first DUI, but is convicted of a second DUI within ten years of the first one, they will not be eligible for a handgun carry permit until five years after the conviction date.
Please note that if your charges were dismissed and expunged, THP will not deny your handgun carry permit application. Furthermore, certain persons who were convicted and whose charges are not eligible for expungement may still be able to obtain a handgun carry permit. If an individual convicted of a crime which stripped them of the rights of citizenship has their rights restored by a state or federal court, THP may still approve their application. However, if that person was convicted of a felony crime of violence, a felony drug offense, or a felony offense involving use of a deadly weapon, rights restoration will notbe applied to their gun rights. For example, manufacturing, distributing, selling, or possessing with the intent to manufacture, distribute, or sell a Schedule I (i.e., marijuana) drug is a Class B felony in Tennessee. Therefore, an individual convicted of possessing marijuana with intent to distribute loses their right to a handgun carry permit and may never regain that right.
If THP denies an individual’s application, they will issue a written notice to the applicant within ten days which provides specific grounds for the denial. If the application is approved, however, the applicant should receive their permit within ninety days of THP receiving their application. The permit is good for eight years and can be renewed for a reasonable renewal fee. A Tennessee handgun carry permit also allows permit-holders to carry their weapon in states which have entered a reciprocity agreement with the state of Tennessee. Likewise, the state of Tennessee allows non-residents to carry a handgun if they carry a permit from another state.
THP conducts a name-based criminal history check on handgun carry permit holders every four years after the permit is applied for, so if you catch disqualifying charges, your handgun carry permit may be revoked by the state. Under TCA §39-17-1352, the permit holder must surrender their permit if they are convicted of a Class A misdemeanor or a felony. Furthermore, the State reserves the right to suspend a handgun carry permit pending adjudication on the holder’s criminal charges. If your handgun carry permit is denied, revoked, or suspended in Tennessee, you may petition the general sessions court of your county for judicial review of THP’s decision.
But don’t jump to any conclusions about your ability to buy, possess, or carry a handgun in Tennessee once criminal charges once the state brings criminal charges against you. Unless you’re federally disqualified from possessing a gun by a felony conviction, as discussed above, you can still own a weapon even if you cannot obtain a permit to carry it on your person. Take a DUI case wherein the permit-holder was convicted of driving under the influence, TCA §55-10-401, a Class A misdemeanor. THP will most likely revoke that person’s permit. However, because that person was not convicted of a felony, they retain their right to buy and possess a firearm.
As of July 2021, the State of Tennessee also recognizes permitless carry, sometimes referred to as “Constitutional Carry,” which removes the permit requirement for carrying a handgun. Check out our blog post from 2021 on the new permitless carry law.
The Foundation of Federal Sentencing Guidelines
The Federal Sentencing Guidelines were established by the Sentencing Reform Act of 1984, which created the United States Sentencing Commission. This independent agency within the judicial branch was tasked with developing guidelines that would promote transparency and consistency in federal sentencing. Before these guidelines were introduced, sentencing disparities were common, as judges had considerable discretion in determining sentences. The guidelines provide a structured framework that limits this discretion, thereby reducing the potential for disparate sentencing outcomes. These guidelines are periodically reviewed and revised to reflect changes in law and societal values, ensuring they remain relevant and effective in promoting justice.
How Gun Charges Are Classified Under Federal Guidelines
Under federal law, gun charges are classified into various categories, each with its own set of considerations and potential penalties. Common federal gun charges include illegal possession of a firearm, using or carrying a firearm during a crime of violence or drug trafficking, and possession of a firearm by a prohibited person. Each of these charges carries different potential sentences, which are influenced by the specific circumstances of the offense. For example, possessing a firearm as a convicted felon is treated more severely than mere possession by someone without a criminal record. Additionally, using a firearm in furtherance of a drug trafficking crime or violent crime can lead to mandatory minimum sentences, significantly increasing the potential punishment.
Determining the Base Offense Level
The Federal Sentencing Guidelines use a point system to determine the base offense level for gun charges. The base offense level is the starting point for calculating the potential sentence. Various factors can adjust this level, either increasing or decreasing the points assigned to the offense.
For instance, if a firearm was used in the commission of another crime, this could result in a higher base offense level. Conversely, if the defendant has accepted responsibility for their actions and cooperated with authorities, this could lead to a reduction in points.
The base offense level serves as a foundation for the final sentencing range, which is influenced by other factors such as the defendant’s criminal history and the presence of any aggravating or mitigating circumstances.
The Role of Criminal History in Sentencing
A defendant’s criminal history plays a significant role in determining the final sentence under the federal guidelines. The guidelines categorize defendants into different criminal history categories based on their prior convictions. Each category corresponds to a specific range of points, which are added to the base offense level to calculate the total offense level. Defendants with a more extensive criminal history will fall into higher categories, resulting in longer sentences.
This system ensures that repeat offenders receive harsher penalties compared to first-time offenders, reflecting the increased danger they pose to society. The criminal history category is a critical component in the sentencing process, as it directly impacts the length of the sentence imposed.
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Aggravating and Mitigating Factors
In addition to the base offense level and criminal history, the presence of aggravating or mitigating factors can influence the final sentence for gun charges. Aggravating factors, such as using a firearm in a violent crime or possessing a firearm with a high-capacity magazine, can increase the total offense level, leading to a longer sentence. On the other hand, mitigating factors, such as the defendant’s lack of prior criminal history or cooperation with law enforcement, can reduce the total offense level. These factors are considered by the judge when determining the final sentence, allowing for a degree of flexibility in the application of the guidelines. This approach ensures that each case is assessed on its individual merits, promoting fairness and justice in sentencing.
Mandatory Minimum Sentences
Certain federal gun charges carry mandatory minimum sentences, which are fixed terms of imprisonment that must be imposed by the judge. These mandatory minimums are often applied to serious offenses, such as using a firearm in furtherance of a violent crime or drug trafficking. For example, a conviction for using a firearm during a drug trafficking crime typically results in a mandatory minimum sentence of five years, which must be served consecutively to any other sentence imposed. Mandatory minimums limit the judge’s discretion in sentencing, ensuring that individuals convicted of these serious offenses receive a significant punishment. While mandatory minimums aim to deter serious crimes, they have also been criticized for contributing to over-incarceration and limiting the ability of judges to consider the unique circumstances of each case.
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The Impact of Plea Bargains on Sentencing
Plea bargains are a common aspect of the federal criminal justice system and can significantly impact the sentencing outcome for gun charges. In a plea bargain, the defendant agrees to plead guilty to a lesser charge or to one of several charges in exchange for a reduced sentence. This process allows both the prosecution and the defense to avoid the uncertainties and expenses of a trial. Plea bargains often result in a lower base offense level, as the charges are typically less severe than those originally brought by the prosecution. Additionally, defendants who accept plea bargains and demonstrate cooperation with authorities may receive further reductions in their total offense level, leading to a more favorable sentencing outcome.
Sentencing Hearings and Judicial Discretion
While the Federal Sentencing Guidelines provide a structured framework for sentencing, judges still retain a degree of discretion in the final decision. During sentencing hearings, both the prosecution and defense present arguments and evidence related to the appropriate sentence. The judge considers the guidelines, the defendant’s criminal history, and any aggravating or mitigating factors before determining the final sentence.
Although the guidelines are advisory, judges are required to explain any deviations from the recommended sentencing range. This process ensures that sentences are tailored to the specific circumstances of each case while maintaining consistency with the overall principles of the guidelines.
Appeals and Post-Conviction Relief
Defendants who believe that their sentence was improperly calculated or unjustly imposed have the right to appeal the decision. The appellate court reviews the case to determine whether any legal errors occurred during the sentencing process. If the appellate court finds that an error affected the outcome, it may vacate the sentence and remand the case for resentencing. Additionally, defendants may seek post-conviction relief through various legal avenues, such as filing a motion to vacate, set aside, or correct the sentence. These options provide defendants with the opportunity to challenge their sentences and seek justice if they believe they have been wrongfully or excessively punished.
The Role of a Defense Attorney in Navigating Federal Sentencing
Given the complexity of the Federal Sentencing Guidelines and the serious consequences of gun charges, having a knowledgeable defense attorney is essential. An attorney can provide invaluable guidance and representation throughout the criminal justice process, from negotiating plea bargains to presenting mitigating evidence at sentencing hearings. An attorney can also advocate for the defendant’s rights and ensure that all legal procedures are followed correctly. In cases involving mandatory minimum sentences or other severe penalties, an experienced defense attorney can work to achieve the best possible outcome, whether through negotiation, litigation, or appeals. Their experience and advocacy are crucial in navigating the intricacies of federal sentencing and protecting the defendant’s interests.
Just because you’re allowed to possess and carry a handgun doesn’t mean you can bring it everywhere, though. Bringing a handgun into a school is still a criminal offense, and most government property has strict prohibitions against firearms. Furthermore, private entities such as individuals and companies are permitted by Tennessee law to prohibit the possession of weapons on their property.
The law concerning who is allowed to carry a gun, when, and where, is intricate, and varies greatly from state to state. If you or a loved one have been charged with unlawfully carrying a weapon, your handgun carry permit has been suspended or revoked, or you’re facing charges which may result in your gun rights being revoked, reach out to Best & Brock to get in touch with our skilled criminal defense attorneys. Contact us here or by calling 423-829-1043 to share your story and begin building a legal defense to protect both your rights and your future.