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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