SC Legislature Report on Your Gun Rights

SC Legislature Report on Your Gun Rights

S. 308 – The restaurant carry bill – finally passed the Senate and is waiting for action in the House.  Unfortunately, the bill was amended by the Senate in ways that make the bill worse than originally introduced, but still better than existing law.  The biggest change in the bill was to change the possible jail time from two years back to the three years as exists in the existing law.  This is important because a three year misdemeanor conviction brings on a federal lifetime firearms disability – which is a polite legal way of saying you can never possess any firearm or ammunition for the rest of your life.  This punishment is too extreme for a simple nonviolent regulatory misdemeanor violation.  This bill will treat a CWP holder who fails to see a sign just as severely as the gang banger robbing the business.  That is wrong.  The bill also imposes a 5 year revocation of one’s CWP upon conviction, which would be worthless anyway since a conviction would impose a lifetime federal firearms disability.  SLED does not issue or renew a CWP for a person that has a lifetime firearms disability.  In fact, SLED would have already revoked the CWP of a person convicted of this crime since SLED checks the CWP list daily for these things.

Another change made by the Senate was to set a time limit – 0500 to midnight – for carrying a firearm in a restaurant that serves alcoholic beverages.  So, you will need to be sure that you keep a close watch on the time and not let a meeting run over, or get carried away in good conversation, or have that football game on TV run into overtime.  Remember, if you are carrying in a restaurant at midnight you are legal.  But, at one minute past midnight – just like Cinderella, you become a criminal and will have your gun confiscated, get up to a $3,000 fine, get up to 3 years in jail, and have a lifetime federal firearms disability even if the judge sets you free with no fine and no jail time.

Criminals love to find defenseless victims with money under the cover of darkness.  So, if the intent of the law is to protect innocent victims from the bad guys, why would the law intentionally disarm innocent people (remember, CWP holders are the certified good guys) who have money (you need money to buy dinner) and are out to eat dinner at night after dark?

The bill also makes it illegal to “enter and remain on any portion of the business’ premises primarily devoted to the service and consumption of alcoholic liquor, beer, or wine.”  If you do, you will suffer all of the consequences for violating the law.  So, you walk into a restaurant to eat lunch.  You sit down at the table and a waitress takes your order and brings you your food.  When you are done eating, she tells you to take the bill to the cash register.  But, the cash register is at the bar.  Now what do you do?  Or, even more threatening to innocent CWP holders, what happens if the place you enter to eat makes most of its money from the sale of alcoholic beverages?  Would that mean that no matter where you sat in the restaurant, you would be in violation of the law?  How could you possibly know what percentage of the business comes from alcoholic beverages?  This language is too vague and ambiguous, and it could be used to have your gun confiscated, get up to a $3,000 fine, get up to 3 years in jail, and have a lifetime federal firearms disability even if the judge sets you free with no fine and no jail time.

The bill also allows a restaurant to post a “No Concealable Weapons Allowed” sign as provided in the CWP law.  But, if you miss the sign, instead of the usual punishment for missing the sign – which is up to a $200 fine or up to 30 days in jail and a 1 year CWP revocation for a second and subsequent offense, you will be charged and convicted of a more serious crime with penalties of having your gun confiscated, up to a $3,000 fine, up to 3 years in jail, and a lifetime federal firearms disability even if the judge sets you free with no fine and no jail time.  There is no requirement that you first be asked to leave.

S. 308 needs to be amended to:

1.  Make the maximum jail time two years as was found in the original version of the bill,

2.  Delete the midnight Cinderella time limit,

3.  Delete the vague and ambiguous prohibition on being in the area primarily where alcoholic beverages are served and consumed, and

4.  require either that a CWP holder first be asked to leave – and given reasonable time to do so – the premises before being charged for failing to abide by the posted sign, or that the punishment for failing to abide by the posted sign is the same as found in Section 23-31-220 in the CWP law.

S. 650 is another stupid anti-gun bill introduced this time by Sen. Pinckney.  It defines an “assault rifle” as “a selective fire rifle chambered for a cartridge of intermediate power.”  Well, at least it requires that the weapon be selective fire and not semiautomatic.  But, “intermediate power” is not defined.  So, where are the lines drawn to determine which cartridges are low power, intermediate power, and high power?  NRA High Power Rifle competition includes almost all rifle calibers greater than 22 LR.  So, would this law only cover 22 LR caliber rifles?  We should never enact laws that are vague and ambiguous.  But, the real danger is what this bill will require a firearms dealer to do:

“A firearms dealer shall conduct:

(1)        A criminal background check;

(2)        A family background check;

(3)        A medical and psychological evaluation; and

(4)        A personal interview to determine if a person is mentally fit prior to selling or otherwise transferring an assault rifle to the person.

A firearms dealer can have a NICS check done to satisfy the criminal background check and the dealer may be able to conduct a proper personal interview prior to transferring a weapon.  But, how is a dealer supposed to properly conduct and accurately evaluate a family background check or a medical and psychological evaluation prior to transferring a weapon?  This is just plain stupid.  But, if gun owners allow this law to get enacted because it only applies to selective fire rifle, it will not be long before the anti-gun forces use this as the precedent to use to force these same ridiculous requirements on all firearms transfers.  This bill will most likely never even get a subcommittee hearing, but if it does we need to nip it in the bud.

H. 3822 is back in the news.  I reported on the bill for the first time last month.  Since then, it has been amended twice and unanimously passed by the House.  It is now in the Senate Judiciary Committee.  So, we should have an opportunity to try to fix or kill this bill before it gets enacted into law – unless the Senate fails to allow a subcommittee hearing to give time for a deliberative consideration of the bill.  There have been so many changes made to H. 3822 that a new analysis is warranted and follows.

Here are the changes that H. 3822 would make to existing SC law (the order of this list is made in the order of the subjects in the bill, NOT the importance of the proposed charges):

1.  Proof of training would no longer require an 8 hour minimum class time, but the same subjects must be addressed.  If a person has completed military basic training, is a retired LEO that graduated from the Criminal Justice Academy, or is a retired LEO that graduated from a state or federal academy that requires firearms training as a graduation requirement, then that person need only complete a course “on the statutory and case law of this State relating to handguns and to the use of deadly force.”  Increased mandatory hours of CWP training have not proven to improve the quality or safety of a CWP holder.  In fact, increased hours of mandatory CWP training have been shown to negatively impact overall public safety by reducing the number of CWP holders.  Therefore, this is a good change in the law.

2.  This bill would require that a person have a driver’s license in order to apply for a CWP.  A driver’s license is not a requirement now.  While this change will most likely impact very few people, it is still an unnecessary requirement totally unrelated to the issue of whether a person should be allowed to use a firearm for defense of self and others.  This is a change for the worse and should be opposed.

3.  This bill will increase the cost of a CWP from the current $50 to a proposed $75.  Because the bill is poorly drafted, it is not possible to say with certainty what the percentage increase in cost is.  This will be discussed below.  Regardless of the percent increase in cost, any increase in cost is bad public policy and an increased tax on the right to keep and bear arms.  If you believe that you should not need a permit to exercise a right, then any fee at all is wrong.  And any increase is especially wrong.  There should be no tax on our right to keep and bear arms.  This needs to be opposed.

4.  The latest amended version of this bill will not allow for a non-resident CWP as the originally introduced version would have done.  But, it will still allow for a “qualified nonresident” CWP, which allows a person who owns land in SC to get a SC CWP.

5.  This bill will delete the law that states that if a sheriff fails to submit a recommendation on a CWP applicant, then such failure constitutes a favorable recommendation.  Instead, this bill changes the law to state that a sheriff MAY submit a recommendation on the CWP applicant.  The problem is that the law still requires SLED to consider the sheriff’s recommendation.  So, what happens when the sheriff fails to submit a recommendation and SLED is required by law to consider that recommendation?  No good can come from deleting the language that requires that a sheriff’s failure to submit a recommendation constitutes a favorable recommendation.  Therefore, the language should not be deleted.

6.  This bill still lets SLED have too much discretion with regards to who can get a CWP.  Current law requires a CWP applicant to have a “favorable” background check before a CWP is issued.  In the past, SLED has interpreted that to mean that multiple traffic violations disqualified a person from getting a CWP.  If you were a professional driver or on the road salesperson, the chances of your being denied a CWP due to traffic violations were significant.  The right to keep and bear arms should not be allowed to be infringed over such interpretations.  The CWP law should be changed to require issuance of a CWP unless there is legally sufficient cause to deny a person the right to possess a firearm.  If you can legally possess the firearm, then you should be allowed to legally bear the firearm.  Since this section of the law is being amended anyway, they should fix this problem now.

7.  This bill continues with the unconstitutional age discrimination against young adults.  The SC Constitution forbids age discrimination among adults except for the sale of alcoholic beverages.  The SC Supreme Court ruled in 2008 in State v. Bolin that it was unconstitutional under the SC Constitution to discriminate against 18 to 20 year old adults with regards to possession of handguns.  To require a person to be 21 years old to qualify for a CWP is therefore unconstitutional.  We should either change the CWP law or change the constitution, but we should never allow politicians to ignore our constitutional rights.  Since this section of law is being amended in this bill, then we should demand that the unconstitutional age discrimination be remedied, too.

8.  Proof of training is defined in Section 23-31-210(4), not sub item 5 as this bill states repeatedly throughout.

9.  This bill will allow a person to file for a CWP online in addition to by mail or in person.  If an application is filed online, then SLED is allowed to make all future communications to the applicant/CWP holder via online communications.  But, there is no provision for using US Mail communications if the online communications fail for whatever reason.  This bill needs to be amended to require SLED to use US Mail communications if online communications fail.

10.  Existing law makes it illegal to carry into a posted location.  The penalty for doing so is one can “be fined not more than two hundred dollars or be imprisoned for not more than thirty days,” and for a second or subsequent violation the person must have his permit revoked for one year in addition to the aforementioned penalties.  This bill will drastically increase the penalties for carrying into a posted location.  Now, “a person who willfully violates a provision of this subsection is guilty of a misdemeanor and, upon conviction, must be fined not less than one thousand dollars or imprisoned not more than one year, or both, at the discretion of the court and have his permit revoked for five years.”  It is quite easy for a person who carries all of the time to forget that he is carrying.  Many CWP holders have accidentally carried into a posted or prohibited carry location.  These CWP holders made innocent mistakes and should not be treated like violent gang bangers.  Existing law sets a much more reasonable penalty for violating the law than does this new bill.  This change should be strongly opposed.

11.  This bill will allow “a property owner or an agent acting on his behalf, by express written consent, [to] allow individuals of his choosing to enter onto property regardless of any posted sign to the contrary.”  Thus, a person could post against CWP carry on his property and still grant written permission for certain CWP holders to carry in spite of the posted signs.

12.  Existing CWP law sets the term of an initial CWP at four years.  This bill deletes any reference to an initial term of years for a CWP.  But, this bill does set a CWP renewal term of five years.  So, is the initial term of years for a CWP the original 4 years as existing law says, or is it a term of 5 years as this bill sets for a renewal, or does the issuance of a new CWP come with a lifetime term of years since there is no expiration date set by law?  This section is very poorly drafted and needs to be fixed.  Once it is fixed, then and only then can we decide whether to support or oppose it.

13.  Existing CWP law requires SLED to do a fingerprint check prior to issuing a CWP renewal.  This bill will require SLED to instead do a state and federal background check.  This is an improvement because it best accomplishes the intent of doing a check.  But, the issue of “favorable” background check comes into play here just as it does with regards to the initial application.  This section of law should be changed to require renewal unless there is factual evidence that makes it illegal for the person to possess a firearm.  Again, if you can legally possess a firearm, then you should be legally allowed to bear the firearm.

14.  Just as existing law requires SLED to issue either a denial or a CWP within 90 days of an initial application, the law should be changed to require SLED to issue a renewal within a time certain.  Since a renewal should be easier to process than an initial application, the time certain should be 30 days.  If SLED discovers information that would have justified not issuing a renewal, then SLED can revoke the wrongly issued renewal just as SLED can revoke a wrongly issued initial application.

15.  This bill requires SLED to issue a CWP renewal notice “at least thirty days before a permit issued pursuant to this article expires.”  SLED can either use the US Mail or online communications if the application was submitted online.  This is why SLED must be required to use US Mail communications if online communications fail.  This is a nice addition.  But, if gun owners also want to keep fees down, then gun owners must accept some responsibility for renewing their own CWP.  There are no free lunches.

16.  This bill will allow a CWP holder to “secure his weapon under a seat in a vehicle, or in any open or closed storage compartment within the vehicle’s passenger compartment.”  A CWP holder would have much easier access to his weapon and should not get in trouble for simply opening a console that contains a handgun without having a LEO present.

17.  This bill will change the definition of “luggage compartment” to no longer exclude “under the rearmost seat.”  Existing law could get a person in trouble if he placed a cased handgun behind the rearmost seat of a vehicle that did not have a trunk, and then the cased handgun slid under the rearmost seat after the person started driving down the road.  The penalty would include forfeiture of the handgun in addition to the misdemeanor charge, which would be reason for SLED to refuse to issue or renew a CWP because the person did not have a “favorable” background check.  This is an improvement over existing law.

18.  This bill would repeal the section of law that allows a person with a CWP who is also a judge, prosecutor, or magistrate to carry anywhere in the State.  This is a good change.  Now, these government employees will have to live under the same laws as the rest of us do.  They will no longer be given carte blanche to carry in restaurants or publicly owned buildings.  But, existing law will still allow these judges, prosecutors, and magistrates to get permission from the authorities to carry in publicly owned buildings.  So, they will still get to carry where most of us will never be allowed to carry.

H. 3822 contains both good and bad elements.  Unfortunately, the good things are minor and the bad things are major.  In addition, things like deleting any reference to what the term of a CWP is can cause problems where none need exist.  Also, failing to make needed changes to fix unconstitutional laws and improve existing law are disappointing.

Increasing the tax on our right to keep and bear arms is a major problem.  We should never agree to increase the tax on our rights.  We must always argue that no tax is acceptable.  We may lose that argument, but we should never cede the high moral ground.  Once the precedent is set that we agree that it is permissible to tax our rights, then we are reduced to arguing over how much tax is acceptable.

But, the major problem with this bill is the huge increase in penalties for carrying into a posted location.  The new penalty is terribly disproportionate to the offense.

There is not enough good in this bill to offset the bad in this bill even if you were inclined to compromise away your rights if you got more than you gave away.  And, if you are opposed to compromising away any of your rights, then you can not support this bill.  We should demand the good because it is good, and we should oppose the bad because it is bad.  There is no legitimate reason we should be forced to accept the bad in order to get the good.  And our so called pro-gun leaders and politicians should already know this.

S. 122 – the Constitutional Carry Act of 2013 – has apparently died.  I was asked to sit down with the senate staff attorney and the head of PGR to discuss how to fix the Constitutional Carry bill after many people complained of the problems that I pointed out in the bill.  Sen. Lee Bright then asked us to meet with him in his office.  After much discussion (over an hour), Sen. Bright instructed the staff attorney to fix things as I – and supported by PGR – had requested they be fixed.  Then, Sen. Lee Bright tried to amend the restaurant carry bill – S. 308 – by adding the improved constitutional carry bill to S. 308 after S. 308 made it to the Senate floor for debate.  This would have forced senators to go on the record with regards to their support of constitutional carry.  But, Sen. Larry Martin objected to the amendment on the grounds that the amendment was not germane, i.e., the amendment was too off topic.  Lt. Gov. McConnell upheld the objection and the amendment was not voted upon.  The end result is that constitutional carry will not get a recorded vote in the Senate as its supporters had hoped.

H. 3560 is the mental health reporting bill that I reported upon earlier.  There were huge problems with this bill, with the major problem being that gun owners would be denied the due process protections found in a court of law when trying to protect their right to keep and bear arms.  The original bill would have allowed “any lawful authority” to deprive a person of their fundamental right to keep and bear arms.  After I pointed out to PGR and SC Gun Rights what a miscarriage of justice this would be, PGR and SC Gun Rights both jumped into action to stop this bill from being enacted into law as originally introduced.  But, politicians were hell bent on getting this bill enacted into law right away.  PGR and SC Gun Rights were a day late and a dollar short as the old saying goes.

Our last meeting was April 8.  On April 10, the House Judiciary Committee approved this bill.  A week later, this bill was passed unanimously by the House.  On April 17, the Senate sent the bill to the Judiciary Committee.  But, on April 18, the Senate pulled the bill back out of committee – which could have been done to send the bill to a different committee.  Then, on April 24, the Senate put the bill on the special order calendar so that they could take it up for consideration right away.  This is when PGR and SC Gun Rights started to get involved because now it was evident that there would not be the usual subcommittee hearing on the bill.  Subcommittee hearings allow for input from the public and is the time for deliberate consideration of the merits of each provision.  This bill never got a Senate subcommittee hearing.  Instead, the Senate started debating and amending the bill on the fly on the floor of the Senate without allowing for a deliberate consideration of any of the proposed amendments.  On April 30, the Senate amended the bill and gave it a second reading.  On May 1, the Senate gave it a third reading and sent it back to the House.  On May 2, the House concurred with the Senate amendment and ratified the bill.  On May 3, the governor signed the bill into law.  This is the only gun control enacted into law in SC since GrassRoots GunRights came into existence, and this only happened because GrassRoots GunRights has been silenced by the courts.  Hopefully, this will never happen again.

So, let’s look at what was finally enacted into law.

After both PGR and SC Gun Rights started mobilizing their forces and contacting their inside people, they were able to get the “other lawful authority” language deleted from the final bill.  Instead, a person must be found mentally incompetent by a “court of competent jurisdiction” before his rights can be revoked.  This was a huge victory because the NRA, AG Wilson, and leading Republicans supported the “other lawful authority” language.  It was the “other lawful authority” language enacted at the federal level that allowed a couple hundred thousand veterans to be put on the prohibited person list due to treatment diagnosis’ at the VA.  It was only because of PGR and SC Gun Rights mobilizing their forces that the due process rights of the accused here in SC were protected at the state level.

Unfortunately, the bill as finally enacted into law allows a person to be declared mentally defective and to have his right to keep and bear arms revoked simply because he is unable to properly manage his financial affairs even if the court finds that he is NOT a threat to the safety of either himself or anyone else.  So, if one of your heirs thinks you are spending his future money by donating to your favorite causes and charities, he can go to court and have you declared unable to manage your finances.  If he is successful, the court will declare you mentally defective and revoke your right to keep and bear arms.  Then, you will not be able effectively protect you or yours from attacks by home invaders even if the court finds you are not a threat to anyone.

Interestingly, the bill as finally enacted into law allows a person to appeal to the court to have the prohibitions removed.  The law states:

“The court shall make findings of fact regarding the following and shall remove the firearm and ammunition prohibitions if the petitioner proves by a preponderance of the evidence that:

(a)  The petitioner is no longer required to participate in court ordered psychiatric treatment;

(b)  the petitioner is determined by the Department of Mental Health or by a physician licensed in this State specializing in mental health to be not likely to act in a manner dangerous to public safety; and

(c) Granting the petitioner relief will not be contrary to the public interest.”

So, the law will allow one’s RKBA to be revoked for being unable to properly manage his financial affairs, but makes no mention as to not being able to manage one’s financial affairs as being a reason to deny the restoration of rights.  The only issues mentioned in the law with respect to restoring rights is whether the person is a threat to the safety of someone or if it would be contrary to the public interest.  Unfortunately, an anti-gun court might well find that the “public interest” that allowed a person’s rights to be revoked even though the person was not found to be a threat to anyone was still more important than that person’s RKBA and effective defense of self and others.  If this bill had been exposed to a subcommittee hearing, it might well have been amended to protect the RKBA for people who are not a threat to self or others but who still need the means to effective protect self and others.

I have often stated that the devil is in the details, and one of the most important details is the definitions section of the law.  So, please listen carefully to the definition of a firearm:

“’Firearm’ means a weapon, including a starter gun, which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of such weapon; a firearm muffler or firearm silencer; or a destructive device; but the term does not include an antique firearm.  In the case of a licensed collector, the term means only curios and relics.”

It appears that if you are a licensed collector, then the term “firearm” means only curios and relics, but not any other firearm.  So, everyone here should become a licensed collector so that if you are ever declared a mental defective under SC law, then the only firearms that you will be prohibited from possessing under SC law would be curios and relics – but not AR-15s or modern handguns.  Yes, this is absurd.  But, it is exactly this kind of absurdity that results from failing to have a subcommittee hearing to deliberately consider each and every provision of a bill prior to enacting it into law.

No one wants crazy dangerous people running around with guns and harming themselves or others.  But, H. 3560 goes beyond protecting the public from crazy dangerous people.  The end result of revoking the RKBA from people who are not a threat to themselves or others and thereby depriving them of the means to effective defense of self and others is nothing short of gun control.  Just imagine how you would feel if the state declared that even though there was no evidence to support that you were a threat to anyone, the state was still going to take away your guns and the ability to defend yourself and your wife or husband – especially if you were elderly and physically infirm – and a firearm was the only way you could possibly defend yourself in your home or on your property.  H. 3560 should have been exposed to a subcommittee hearing so that the anti-gun provisions could have been properly considered and hopefully removed.

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S.413 and H.3560 Bills to Disarm Veterans and Destroy their rights

S. 413 and H. 3560 are bills that claim to simply be mental health reporting bills to make the NICS check better by stopping the mentally ill from getting guns.  Who could possibly oppose bills to stop the mentally ill from getting guns?  These bills have bipartisan support and have been introduced by Republicans and supported by Sen. Ford.  SC AG Wilson had a great media day – along with support from the NRA – pushing these bills.  But, these bills are NOT what you are being told they are.  These bills include an expansion of anti gun laws and would deny you the due process protections guaranteed to you in a court of law.  The devil is always in the details, and it is the details that you need to know to understand why you should oppose these bills.

Section 1 of H. 3560 expands the law to include more people who are banned from possessing handguns and to whom it is a felony to sell a handgun to.  According to the proponents of H. 3560, existing law that already makes it a felony for a person who “has been adjudicated mentally incompetent” to possess a handgun is not sufficient to stop the mentally ill from getting a handgun.  So, H. 3560 makes it a felony to sell a handgun to or for a person to possess a handgun if that person “has been adjudicated mentally incapacitated or committed to a mental institution, both as defined in Section 23-31-1010.”  Some would think that these two legal phrases mean the same thing.  But they do not.  Remember, things mean what the definitions in the law say they mean regardless of what things mean to everyone else.

Existing law requires that the accused be afforded all the protections of a due process court proceeding before being found by the court to be “mentally incompetent.”  But, H. 3560 defines what “a person adjudicated as mentally incapacitated” means even if that is not what we would think it should or would mean.  A court with all the due process protections required in a court proceeding is no longer necessary for a person to be “adjudicated as mentally incapacitated.”  Instead, a “board, commission or other lawful authority” would be sufficient to cause a person to be “adjudicated as mentally incapacitated.”  “Other lawful authority” has been found to be a shrink issuing a PTSD diagnosis on returning veterans.  Do you want a single person to be able to put you on the prohibited person NICS list?  Do you want to give away your right to a fair trial before someone can put you on the prohibited person NICS list?

Pursuant to proposed Section 23-31-1010(1)(e), a person is defined as “a person adjudicated as mentally incapacitated” and placed on the NICS list and banned from buying or possessing handguns if that person is impaired by . . . physical illness or disability, advanced age, . . . to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person or property.”  So, get old and feeble and the state can come and confiscate your handguns under H. 3560.

I served as a range safety officer for a CWP class.  One of the students was an elderly woman with arthritis in her hands.  She was unable to fire the 50 rounds required to complete the range qualification portion of the CWP test, although she was able to accurately fire about 20 rounds prior to her hands giving out.  Since she did not complete the course of fire, SLED will not issue her a CWP.

How many times does a person need to fire 50 rounds in a self defense situation?  So, why should this elderly lady be denied the right to effective self defense just because she has significant arthritis in her hands?  Could the fact that she was physically impaired be interpreted to mean she should be denied the right to keep and bear arms under these bills just as SLED now denies her a CWP?  Do we want to leave that arbitrary decision to a single person or committee?  Or, should we demand that her rights be protected with all of the due process protections found in a court of law?

Pursuant to proposed Section 23-31-1010(1)(b), a person is defined as “a person adjudicated as mentally incapacitated” and placed on the NICS list and banned from buying or possessing handguns if found “not guilty by reason of insanity” for any crime – even non violent crimes – even “if the chief administrative judge finds the person not to be in need of hospitalization” and even if “the judge [orders] the person released upon such terms or conditions, if any, as the judge considers appropriate for the safety of the community and the well-being of the person.”  And all handguns can be confiscated by the state.

Proposed Section 23-31-1030 is especially troubling because of the ambiguities that could be interpreted adversely to the interests of gun owners.  Section 23-31-215 is the SC CWP law.  Section 23-31-1030 states:

“A person who is disqualified from possessing … a firearm under … Section 23-31-215, as a result of adjudication as mentally incapacitated … may petition the court that issued the original order to remove all such disqualifications.”

Proposed Section 23-31-1030 could be interpreted to mean that if the local sheriff recommended against issuing a CWP to a person because the sheriff thought the person was mentally incompetent and SLED refused to issue a CWP based upon the sheriff’s recommendation, then the person would have been “adjudicated mentally incapacitated” by a “board, commission or other lawful authority” and could be placed on the NICS list.

Not all sheriffs are pro gun.  Many sheriffs are anti gun politicians.  Rep. James Clyburn was quoted as saying “People can only find comfort with guns if they’re not too stable to begin with. (The State, June 13, 1999)”

Even more troubling is the admission of retired SLED agent Mark Huguley who admitted to placing people on the NICS list who had not been “adjudicated mentally incompetent.”  Mr. Huguley wrote an opinion article published by The State on March 3, 2013 that stated:

“As a retired SLED agent myself, I have seen firearms in the possession of people suspected of disqualifying mental disabilities.  I even received occasional calls from family members concerned that a loved one whom they considered a threat to self or others was seeking to purchase a firearm.  With sufficient evidence, we would enter these people into the FBI file to block purchases.  I don’t know whether this prevented any tragedy, but it gave comfort to the family members and would be reassuring to others if they knew the circumstances.”

Mr. Huguley supports H. 3560, and obviously thinks he is above the law, too.  Do you like the idea that some bureaucrat can unilaterally decide there is “sufficient evidence” to put you on the prohibited person NICS list without you ever being afforded the protections of a fair trial?

H. 3560 purports to provide a means to have one’s name removed from the NICS database, but such is an illusion.  Once a person’s name is put on the federal NICS database, there is nothing that a SC court can do to force NICS to remove that person’s name from the NICS list – which is why it is so important that a person be accorded all due process protections found in a court of law and not shortchanged by allowing a “board, commission or other lawful authority” to cause a person to be “adjudicated as mentally incapacitated.”

There is another mental health reporting bill – H. 3564 – before the SC General Assembly.  H. 3564 does not contain additional anti gun provisions as H. 3560 does.  H. 3564 requires a court adjudication – with all due process protections – of mental illness before allowing a person’s name to be added to the NICS list.  While it is not a perfect bill, it is far superior to H. 3560.  Interestingly, H. 3564 has not gotten the attention of the mass media as H. 3560 has.  Could it be because H. 3564 does not include the threats of gun control that are included in H. 3560?  The real question that we need to demand an answer to is “why do Republicans and the NRA support a mental health reporting bill that denies people the due process protections of a court trial before having their fundamental right to keep and bear arms revoked?”  If Democrats had introduced H. 3560, we gun owners would be up in arms.  So, why are we gun owners letting H. 3560 slide by now?

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S.115 Constitutional Carry Bill – Poison Pills Inserted

S.115 Constitutional Carry Bill – Poison Pills Inserted

The Senate subcommittee considering S. 115 – the SC Constitutional Carry bill – has proposed an amendment to S. 115.  Unfortunately, the Senate subcommittee’s proposed amendment fails to fix the problems identified earlier and then inserts more gun control into the bill.  The Senate subcommittee amendment must be defeated!

Let’s look at how the Senate subcommittee has miserably failed the people of SC.

1.       The Senate subcommittee failed to define the term “weapon,” which was a problem identified in an earlier analysis.  As pointed out in an earlier analysis of S. 115, failure to define the term “weapon” puts many people at risk of being turned into criminals merely for possessing a pocket knife, pepper spray, nail file, or any other type of device, or object which may be used to inflict bodily injury or death.”  This failure to define the term “weapon” is inexcusable incompetency since this issue was exposed earlier.  This issue alone is reason to kill the Senate subcommittee amendment, and the original S. 115 if not amended to remedy this issue.

2.       The Senate subcommittee inserted more gun control into S. 115 by creating a new class of people who would be prohibited from possessing handguns in SC (see proposed Section 4).  The Senate subcommittee would make SC law more restrictive than existing SC law and more restrictive than federal law!  Even President Obama has not proposed doing at the federal level that which the Senate subcommittee has proposed SC do!

The Senate subcommittee wants to amend Section 16-23-500 to state that “[i]t is unlawful for a person who has been convicted of a felony offense to possess a handgun within this State.”  Existing SC law – Section 16-23-30 – only makes it illegal for a person convicted of committing a “crime of violence” from possessing a handgun.  Existing SC law – Section 16-23-500 – goes a step further and makes it illegal for a person who has been convicted of a violent crime that is classified as a felony offense to possess any firearm or ammunition.  Existing SC law recognizes that non violent crimes should not be justification for denying a person their God given or natural right to keep and bear arms.

Even existing federal law – Section 18-44-922 – does not take away the right to keep and bear arms from all felons.  Federal law takes away the right to keep and bear arms from those who have committed a “crime punishable by imprisonment for a term exceeding one year.”  But, federal law – Section 18-44-921(a)(20) – makes an exception for “(A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or (B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.”  Essentially, federal law does not take away the right to keep and bear arms from non violent white collar felons.

Some will ask “why should we be concerned with the rights of non violent felons?”  I would refer them to the familiar quote from Martin Niemöller regarding the Nazis that starts with “[f]irst they came for the communists, and I didn’t speak out because I wasn’t a communist” and ends with “[t]hen they came for me, and there was no one left to speak for me.”  The more people that have no personal interest in protecting the right to keep and bear arms, the more people who will either support or remain apathetic to efforts to destroy that right for all of us.  Divide and conquer is a well known war time strategy, and we are in a war to protect our God given and natural right to keep and bear arms.  We must not allow our enemies to divide and conquer us.  This expansion of gun control is sufficient reason to kill this Senate subcommittee amendment.

3.       The Senate subcommittee has continued to treat law enforcement officials as our masters and not our servants.  See Section 23-31-220.  No one will argue that law enforcement officers need to be able to carry their firearms – when carrying out the lawful and legitimate duties of their job – onto private property without first getting prior permission from the property owner.  In fact, this is exactly what proposed Section 7 of the Senate subcommittee amendment – which amends Section 23-31-240 – does, it provides that law enforcement officers can carry anywhere in the state while carrying out the duties of their office.  But, the Senate subcommittee amendment to S. 115 – as does existing law and the original S. 115 – exempts OFF DUTY law enforcement officials involved in their own personal affairs to ignore the rights of property owners and to legally carry weapons onto the property of others even when the property owners object.  This is wrong.  Off duty law enforcement officers must obey the same laws that the rest of us are forced to obey.

4.       The Senate subcommittee amendment changes existing SC law and makes it illegal to possess a firearm on some private property even though existing SC law allows the private property owner the option of allowing others to possess firearms on his private property.  See Section 2 of the Senate subcommittee amendment which amends Section 16-23-20.

The Senate subcommittee took the list of places – Section 23-31-215(M) – where a CWP did not “authorize” a person to carry and turned that list into a list of prohibited carry locations.  “Not authorized” and “prohibited” are not synonymous.  Under existing law a day care facility owner could give permission for a CWP holder to carry in the day care.  But, under the Senate subcommittee amendment a day care owner could not do so.  The end result is that more “gun free zones” are being created under the Senate subcommittee amendment than exist now.  This is a step backwards and does not further the intent of a true Constitutional Carry bill.  This expansion of “gun free zones” is sufficient reason to kill the Senate subcommittee amendment.

5.       The Senate subcommittee amendment removes the proposed amendment found in the original S. 115 that would have legislatively rebuked the AG McMaster Oconee County opinion wherein AG McMaster found that any local governmental entity could prohibit concealed carry on any public property within its boundaries.  AG McMaster based his opinion on the premise that since the local government employed some people within its boundaries, it was the “public employer” with power to prohibit CWP carry for everyone within its borders under Section 23-31-220.  The original S. 115 would have rebuked the ridiculous AG McMaster opinion.  The Senate subcommittee amendment removes this rebuke from S. 115.  A court might well see the Senate subcommittee change as evidence that the Senate supports the AG McMaster opinion.  Therefore, this Senate subcommittee change must be rejected, or else it could come back to harm us later.

6.       The Senate subcommittee amendment would punish a SC CWP holder more severely than a non CWP holder for committing the same violation.  Senate subcommittee Section 6 – which amends Section 23-31-225 – would punish a CWP holder by revoking the CWP for five years in addition to the fine and/or jail time that anyone else would be subject to.  Since a CWP would not be needed to carry in SC, this additional punishment would only affect those who want to carry in other states, those who use the CWP to bypass the NICS check when purchasing firearms, and to those who want to possess a firearm in a “gun free school zone.”  This additional punishment for those who possess a CWP should be removed.

7.       The Senate subcommittee fails to remedy the problem with the signs used to ban “concealable weapons” and/or “weapons.”  The bill as drafted both in the original S. 115 and the Senate subcommittee version of S. 115 create a conflict in the law over the content of the signs.  This needs to be fixed so that it is definitively known what a legally sufficient sign is.

 

The above problems – which may not even be all of the problems – with the Senate subcommittee proposed amendment to S. 115 are enough to show that the Senate subcommittee amendment must be rejected.  Unfortunately, the original version of S. 115 contained sufficient problems needing to be fixed that it should be rejected too if the choice is between either the original S. 115 or the Senate subcommittee version of S. 115.  S. 115 needs to be amended to fix all of the identified problems before gun owners throw their support behind the bill.

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H. 3072 Poorly worded bill to protect the right to keep a firearm in a vehicle

H. 3072 will protect the right of a person to keep a firearm in his vehicle except on the property of a single family residence or “facilities that operate under a security plan approved by a federal agency.”  This bill will also provide civil immunity to parties required to allow a firearm to remain in a vehicle for any harms resulting from those firearms.

The firearms and ammo must be locked out of sight within the vehicle.  A better wording would be to require only that the firearm and ammo be within a locked or attended vehicle so as not to force CWP holders to unnecessarily handle a firearm to disarm.  The attended or locked vehicle language is the same language used in Sections 16-23-420 and 430 for when CWP holders enter upon school grounds and has worked well.

As currently worded, a wife with a CWP could not legally drop off or pick up her husband while armed because when the husband opens the door to enter the vehicle, the firearm is no longer locked up.  Therefore, the firearm will need to be stored in a locked manner prior to entering upon the property.  Also, if someone keeps a handgun in a glove box or console that cannot be locked, then the firearm would need to be moved to a locked area of the vehicle prior to entering upon the property.  But, if the language only required a locked or attended vehicle, unnecessary handling of firearms could be avoided.

H. 3072 provides redress for any harms suffered as a result of violation of the law, plus reasonable attorney fees.  But, this bill fails to make all such policies or rules null and void.

Overall, this is a good bill.  But, it would be nice to see it amended to only require the firearm be in a locked or attended vehicle rather than being locked up prior to entering upon the property.

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H. 3189 defines an assault weapon

H. 3189 defines an “assault weapon” and alphabetizes the list of firearms in Section 16-23-210, makes a few grammatical changes, turns violations of Section 16-23-20 – the law making it illegal to possess a handgun unless one fits into one of the listed exceptions – into felonies instead of misdemeanors, and increases penalties for violating other handgun laws.  This bill was introduced in 2009, 2011, and again in 2013.  It has never even gotten a subcommittee hearing.  It will most likely not get one this session, either.

A so called “assault weapon” is poorly defined in this bill, but is most likely limited to a semi automatic rifle or shotgun.  The bill is poorly drafted because it uses “and” when describing the characteristics that make a firearm an “assault weapon” when the word “or” should have been used.  Then, this bill provides that a so called “assault weapon” involved in the violation of the handgun laws – where no mention of an “assault weapon” otherwise exists – must be confiscated.

These so called “assault weapon” laws should be opposed because such weapons are simply modern semi automatic sporting rifles that only resemble fully automatic military weapons.  But, the anti gun crowd and the mainstream media try to mislead the general public into believing that the weapons involved with these so called “assault weapon” laws are fully automatic weapons – which have been tightly regulated since 1934, even to the point of showing fully automatic weapons being fired while talking about these semi automatic so called “assault weapons.”

If the anti gun crowd successfully bans modern sporting rifles by intentionally confusing these semi automatic rifles with fully automatic military weapons and labeling them as “assault weapons,” then they will work to ban the traditional bolt action deer hunting rifle and scopes by labeling them as high powered “sniper rifles.”

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H. 3186 Unintelligent Save Our Children Gun Lock Act

H. 3186 is called the “Save Our Children Gun Lock Act.”  This is a lock up your safety gun bill.  A person would be required to keep their guns locked up unless the guns were being carried on the person or being used.  On first appearance, it sounds reasonable.  But, the best available research demonstrates that appearances can be deceiving.

Some states have already passed such laws requiring that guns be locked up.  And, no lives have been saved.  But, more importantly, more lives have been lost.  There has been a net loss of life in the states where these laws have been enacted.  Why?

Responsible people keep their guns out of the hands of children, while irresponsible people fail to do so.  After a trigger lock law is enacted, irresponsible people are still irresponsible and they still do not lock up their guns.  And, the number of children that die because of irresponsible people does not change.  But, responsible people become more afraid of government persecution than they do the criminal element, so they lock up their guns.  And, the number of children that die because of responsible people does not change.

What does change is that now when criminals attack the responsible people, the good guys are unarmed and become victims – dead victims.  So, the fact is that trigger lock laws lead to more people being killed, and they do not save lives.  So, while there may be good intentions associated with a lock up your safety gun bill, the facts reveal that such laws only cause more deaths and destruction.

If this bill was such a good way to save lives, then why would it exempt law enforcement officers?  Some would say that law enforcement officers are exempted because it is known that such laws do not save lives and are only enacted to harass gun owners.  A violation of this bill could incur a lifetime federal firearms disability, which would put a law enforcement officer out of his job.

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H. 3181 repeal of the Second Amendment Weekend

H. 3181 would repeal the Second Amendment Weekend, and firearms would no longer be sold tax free on the Friday and Saturday after Thanksgiving.

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H. 3160 another CWP school carry bill

H. 3160 is another CWP school carry bill, but much more restrictive than S.242.  This bill would only extend to public school employees, not all CWP holders, and only at the school where the employee works.  This bill would require that “the employee: (1) keeps the firearm on his person at all times while on the premises; (2) keeps the weapon concealed when not in use; (3) uses only frangible bullets in an effort to avoid ricochets; (4) provides written notification of his intent to carry the firearm to the principal of the school where the weapon will be carried; (5) successfully completes and biennially renews certification as a precision marksman by SLED; and (6) has no history of violence or unmanaged anger documented by his employer.”

As currently drafted, a teacher with a CWP could carry in the school where she works.  But, if she carried into another school to pick up her child, then she would be committing a felony.  How does this improve the safety of our children?  The limitation should be deleted.

The bill also provides that “[a] school board may only deny an employee of his ability to carry a firearm . . . upon a finding of just cause.”  If “just cause” existed, then SLED would have revoked the CWP already.  So, allowing a school board to deny for alleged “just cause” only sets the stage for improper denials and unnecessary litigation.  The provision allowing the school board to deny an employee the right to carry should be deleted.  Or, in the alternative, any school board members voting to deny the right to carry should be made personally liable for any wrongful denials.

A violation of this law mandates a five year revocation of the CWP, which only affects the CWP holder and not the school board that improperly denies an employee the right to carry.

There are two sections of law that address firearms on school property – Sections 16-23-420 and 16-23-430.  But, this bill only amends Section 16-23-420.  Therefore, this bill must be amended to address Section 16-23-430, too.

Currently, there is no “precision marksman” certification by SLED, so that would need to be addressed.  A precision marksman certification is vague enough to encompass a wide range of standards.  To ensure that an unreasonable standard is not created, the precision marksman certification should not be more stringent than that required of the law enforcement officers that are currently assigned to our schools.  Therefore, this bill should be amended to set the standard as that necessary to pass the Justice Academy.

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H. 3044 Fraudulent Firearms and Ammunition Purchase Prevention

H. 3044 is named “Fraudulent Firearms and Ammunition Purchase Prevention,” but should be called the “Get Mayor Bloomberg Act.”  H. 3044 makes it a SC felony for a person to try to buy ammo or a firearm when the person knows that doing so would violate the law, or to provide “materially false information with intent to deceive the dealer or seller about the legality of a transfer of a firearm or ammunition.”

“Materially false information” is defined as “information that portrays an illegal transaction as legal or a legal transaction as illegal.”  So, if a person does something that is legal while pretending he is doing something illegal, then he will have committed a felony here in SC.

This bill is intended to punish the likes of Mayor Bloomberg for sending people to SC to purchase firearms and then make it appear as if SC is the root of the nation’s gun violence.

Is this law really needed?  It is already a federal felony for a prohibited person to try to buy a firearm from a licensed dealer.  It is already a felony for a prohibited person to possess a firearm obtained from a private seller.  Do we really want to enact a law making it a felony to pretend that one is doing something illegal when one is not?  What kind of bureaucracy will need to be created to enforce this law?  Or, is this just another example of politicians thinking that another law is the answer because the hundreds and thousands of existing laws are not enough?

H. 3044 should be left to die in the subcommittee just as it died in subcommittee last session as H. 3882.

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S.242 Allow CWP on School Property

S. 242 is a bill to make SC law mirror federal law with regards to allowing concealed weapon permit (CWP) holders to possess a concealed weapon on school property.  The federal “gun free school zones” law allows a SC CWP holder to possess a concealed weapon on school property, while SC law currently makes doing so a felony unless school authorities give permission to do so.  But, considering the liability issues created by giving permission, such permission is virtually impossible to get.

The best available research reveals two very important facts.

First, virtually all mass public shootings occur where it is illegal to possess a firearm.  By definition, criminals do not obey the law.  Therefore, any “gun free school zone” laws only prohibit the good guys from possessing firearms on school property, and do absolutely nothing to stop the bad guys from possessing firearms on school property.

Second, the best way to save human lives when an active shooter is involved is for a good guy with a gun to engage the active shooter as quickly as possible.  Waiting for backup only leads to more innocent lives being lost.  When seconds can mean the difference between life and death, the police are always minutes away.

What we do know is that the current SC laws and policies will not save lives when a suicidal maniac is intent upon killing as many innocent people as possible.  In every one of the mass school shootings, there was a teacher who – if armed – might well have been able to engage the active shooter and saved innocent lives.  But, unfortunately, SC law is more restrictive than federal law and prevents good guys with guns from stopping bad guys with guns – which will inevitably lead to more innocent lives being lost.

S. 242 will change SC law to best reflect the realities of life instead of the Norman Rockwell visions of life.  S. 242 will serve to better protect our children.

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