Analysis of S. 85 (proposed bill in SC) South Carolina Firearms Freedom Act

S. 85 is called the “South Carolina Firearms Freedom Act.”  This bill was introduced in 2009, again in 2011, and again now in 2013.  It has not been changed even though the potential harms to gun owners and the amendments to protect gun owners from those harms have been well documented.  Here is what GrassRoots GunRights had to say about the South Carolina Firearms Freedom Act back in 2009 (S. 794 and H. 4022), and the 2013 bill is the same bill without any of the gun owner protections included which were identified back in 2009.

“These bills are known as the ‘South Carolina Firearms Freedom Act.’  They invoke the 9th and 10th Amendments to the US Constitution and declare the commerce clause of the US Constitution does not allow the US government to regulate SC made and kept firearms – except machine guns.  A number of other states are doing the same thing.

On the surface, firearms appear to be the subject matter of these bills.  But, the real subject matter of these bills is the fight over the distribution of power between the federal government and state governments.  Since GrassRoots is a single issue pro gun rights organization, we will not allow GrassRoots to be drawn into the fight over the distribution of power between the federal and state governments.

The problem with these bills is that as currently drafted they will only get SC residents in a lot of trouble.  These bills will lead SC citizens to think they are acting in a legal way, but then leave SC citizens who obey the new SC law at the mercy of the federal government and without any help from the state of SC.

Lets illustrate the problem using an example other than firearms.  California passed a law making medical marijuana legal in California.  But, the federal government still went into California and arrested and prosecuted people who had abided by the California medical marijuana laws.  The same thing will happen here in SC over SC made and kept firearms unless these bills are amended to protect the people of SC.  And remember, whoever the feds come after will lose their rights to keep and bear arms forever.

If the sponsors of these bills were serious about protecting gun owners in SC, then they would include language to protect the people of SC.  One alternative would be to include language making it a crime for federal officials to come into SC and persecute SC residents for complying with SC gun laws.  But, even then, if a SC resident was convicted of violating federal law, he would still lose his right to keep and bear arms for life even if the federal officials were prosecuted under SC law.

Another alternative to protect SC residents would be for SC to do as Texas has done in their similar bill.  Texas included the following language in their bill:

‘(a) The attorney general shall defend a citizen of this state whom the federal government attempts to prosecute, claiming the power to regulate interstate commerce, for violation of a federal law concerning the manufacture, sale, transfer, or possession of a firearm, a firearm accessory, or ammunition manufactured and retained in this state.

(b) On written notification to the attorney general by a citizen of the citizen’s intent to manufacture a firearm, a firearm accessory, or ammunition to which this chapter applies, the attorney general shall seek a declaratory judgment from a federal district court in this state that this chapter is consistent with the United States Constitution.’

The above language makes a statement and backs it up with legal protection for the citizens of the state.  The SC bills need to be amended to at least include the language found in the Texas bill.

These bills will not protect shotguns since they state ‘[t]his article does not apply to … a firearm that discharges two or more projectiles with one activation of the trigger or other firing device.’  A shotgun discharges many projectiles with one activation of the trigger.  The intent was to except machine guns from the protections of these bills.  This problem is that these bills are poorly drafted.  If they only wanted to except machine guns and not shotguns too, then they should have used the word ‘rounds’ instead of the word ‘projectiles.’

One last thought – what constitutional principle makes it permissible for the federal government to regulate machine guns under the commerce clause, but not semiautomatic firearms?  There is no constitutional principle that would allow them to be treated differently.  So, it would appear these bills are more about making a political statement that will motivate gun owners to support the bills than it is about protecting the right to keep and bear arms.”

It costs a lot of money to fight a criminal prosecution.  Do we want SC gun owners to be forced to buy a lawyer another yacht?  SC gun owners deserve better than to be used as battlefield fodder or to be considered acceptable collateral damage in this power struggle between state and federal governments.  If S. 85 is to be considered as a pro gun bill, then it must be amended to include the language from the Texas Firearms Freedom bill so as to protect SC gun owners.  If S. 85 is not amended to protect SC gun owners, then SC gun owners will be better served by not wasting time on S. 85 and instead concentrating on passing real pro gun bills or killing anti gun bills.


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