Analysis of S.115 (proposed bill in SC) The SC Constitutional Carry Act of 2013

This bill is called “The SC Constitutional Carry Act of 2013.”  This bill would make it legal to carry either openly or concealed without a permit.  But, the bill is poorly drafted and creates problems where none need exist.

First, let’s address the sections of S. 115 that are well drafted:

Section 2:  Existing law – Section 16-23-20 – makes it illegal to possess a handgun unless one fits into one of the listed exceptions such as in a closed glove box, on your own property, etc..  S. 115 will amend the law to only make it illegal to possess a handgun – whether concealed or not – with the intent to commit a crime.  The intent to commit a crime shall not be inferred from the mere possession, carrying, or concealment of a loaded or unloaded handgun.  Thus, the default position of the law will be changed from one where it is illegal to possess a handgun to one where it is legal to possess a handgun.

Section 3:  The existing law – Section 16-23-460 – which makes it illegal to carry any concealed weapon – with certain listed exceptions – would be repealed.

Section 6:  Existing law – Section 23-31-240 – which gives certain judges and solicitors who possess a CWP the privilege of carrying concealed anywhere in the state while carrying out the duties of their office would be expanded to include LEOs and would no longer require that the person possess a CWP or that the weapon be concealed.

Next, lets address the sections of S. 115 that are poorly drafted:

Existing law – Section 23-31-210(6) – defines a “concealable weapon” as a firearm less than 12″ along its greatest dimension – which essentially means a handgun, but not a hand cannon.  Existing law – Section 16-23-405(A) – states “‘weapon’ means firearm (rifle, shotgun, pistol, or similar device that propels a projectile through the energy of an explosive), a blackjack, a metal pipe or pole, or any other type of device, or object which may be used to inflict bodily injury or death. [emphasis added]”  This vague overly broad definition of weapon could include commonly found items such as, but not limited to, multi-tools, screwdrivers, hammers, pencils, pens, baseball bats, pepper spray, hair brushes, nail clippers, and possibly pocket knives.

S. 115 simply deletes the word “concealable” from “concealable weapon” and uses the word “weapon” wherever the words “concealable weapon” had been used.  But, that “simple” change creates problems in Sections 4 and 5 that need to be resolved before this bill gets enacted into law.  Because S. 115 fails to define the term “weapon,” the courts might well use the overly broad definition of “weapon” found in Section 16-23-405(A).

Section 4:  S. 115 addresses Section 23-31-220 and changes every usage of the term “concealable weapon” to simply “weapon,” which brings in all the problems associated with the overly broad definition of “weapon.”

Existing law – Section 23-31-220(1) – allows a public or private employer to prohibit a CWP holder from “carrying a concealable weapon upon the premises of the business or work place or while using any machinery, vehicle, or equipment owned or operated by the business.”  AG McMaster used this section of law to find that any local government could prohibit CWP carry on public property within its borders.  S. 115 would rebuke the anti gun AG McMaster Oconee County opinion by limiting this power to prohibit the carrying of weapons to only private employers, not public employers.  But, Section 16-23-420 and Section 16-23-430 would still prohibit carrying firearms in publicly owned buildings and all schools without permission from the authorities in charge.

Existing law – Section 23-31-220(2) – allows a private property owner to prohibit a CWP holder from “carrying . . . a concealable weapon upon his premises.”  S. 115 changes “concealable weapon” to “weapon,” which brings in all the problems associated with the overly broad definition of “weapon.”

Existing law – Section 23-31-220 – also allows an employer or property owner to post a sign that gives constructive notice to a CWP holder that the carrying of a concealable weapon is prohibited and provides that a CWP holder who carries a concealable weapon upon such posted premises may be charged with a violation of Section 16-11-620, and have his CWP revoked for one year upon a second or subsequent violation.  S. 115 changes “concealable weapon” to “weapon” – which brings in all the problems associated with the overly broad definition of “weapon,” deletes the CWP revocation provisions so as not to punish a CWP holder more severely than a non CWP holder, and exempts law enforcement from the power of a property owner to prohibit the carrying of weapons on his property.

Under S. 115, if an employer posts a sign prohibiting weapons pursuant to Section 23-31-220, that sign would no longer apply to just handguns as the existing law does.  Rather, such a sign could now prohibit “any other type of device, or object which may be used to inflict bodily injury or death.”  This vague overly broad definition of “weapon” creates uncertainty where none should exist.

S. 115 also creates a conflict in the law that would need to get sorted out in the courts unless first amended.  If not amended, some poor gun owner will be forced to buy a lawyer a yacht simply because this bill is poorly drafted.  Existing law – Section 23-31-235 – requires that a sign posted to prohibit the carrying of a “concealable weapon” be of a standard size, with standard language, and conspicuously placed so as to give fair warning to a person carrying a concealable weapon that such is not allowed.  S. 115 edits the standard language to be used on such a sign in one section – Section 23-31-220(B), but fails to change the standard language to be used on the sign in Section 23-31-235 wherein the sign specifications are set.  Both sections need to be consistent and use the same language.

Section 5:  Existing law – Section 23-31-225 – requires you to get “express permission” before entering the residence or dwelling of another person if you possess a “concealable weapon,” which by definition means a firearm less than 12″ along its greatest dimension.  But, S. 115 deletes the word “concealable” and instead only uses the word “weapon.”  Because S. 115 fails to define the term “weapon,” the courts might well use the overly broad definition of “weapon” found in Section 16-23-405(A).  Therefore, under S. 115 as currently drafted, the law could require one to get express permission prior to entering the residence or dwelling of another whenever one possessed any other type of device, or object which may be used to inflict bodily injury or death.

By simply deleting the word “concealable” from “concealable weapon,” S. 115 would now require you to be concerned with whether you possessed “any other type of device, or object which may be used to inflict bodily injury or death” rather than just being concerned with whether you possessed a handgun when getting ready to enter the residence or dwelling of another, and to get “express permission” to enter with whatever weapons you may possess.

This change in S. 115 – as does existing law, although to a lesser extent – would disparately impact the health and safety of women.  Women are more likely to be the victims of sexual assault.  Many women carry non lethal weapons – and some carry lethal weapons – to protect themselves from sexual assault.  S. 115 would require these women to announce to any sexual predators inviting the woman into his lair any and all weapons that she possesses for self defense.  Not all women wanting or needing to enter a residence or dwelling of another are there on a date.  Many women need to enter the residence or dwelling of another because they are service people, sales persons, or delivery persons.  Therefore, the admonition that a woman should be a better judge of character before entering a residence or dwelling of another is not really applicable.

S. 115 also punishes a person with a CWP more severely than a person without a CWP for entering a residence without declaring that one is armed.  There is no rational reason or state interest involved to justify the additional punishment since it would only affect those who travel out of state while they are out of state.

What to do with S. 115?:

What should be done to remedy the above identified problems?  One alternative would be to add a definition for “weapon” in Section 23-31-210, and to define “weapon” as a handgun.  Simply changing the existing definition found in Section 23-31-210(6) for “concealable weapon” to “weapon” would create even more problems because of the size limitations.  For example, would a 44 Magnum measuring more than 12″ along its greatest dimension be subject to the limitations in Section 23-31-220, Section 23-31-225, or Section 23-31-235?  Adding a definition for “weapon” would limit the weapons that one needed to be concerned with declaring or being consciously aware of to handguns – which was the original intent of the CWP law and most likely this bill’s sponsors, and all the possible problems related to the overly broad definition of “weapon” would be eliminated.

Section 23-31-225 should be repealed.  There exists a conflict between the rights of the property owner to prohibit weapons on his property and the right of a woman to secretly possess the means to effective self defense against sexual predators.  Existing law has the State of SC coming down virtually entirely on the side of the private property owner to the detriment of the woman.  A better alternative would be to strike a balance between these competing rights by allowing the woman to secretly possess the means to effective self defense against sexual predators unless the property owner informs the woman about to enter the residence or dwelling that no weapons are allowed.  Repealing Section 23-31-225 protects the rights of all parties, and does so with the State of SC remaining neutral and not taking the side of either party.

The more severe punishment to a CWP holder found violating Section 23-31-225 should be repealed.

Section 23-31-220 and Section 23-31-235 relating to the language used on signs prohibiting the possession of weapons should be made congruent.

This entry was posted in Uncategorized. Bookmark the permalink.

Leave a Reply

Your email address will not be published. Required fields are marked *