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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