Analysis of S276, S308 & H3053 Restaurant Carry

S. 276, S. 308, and H. 3053 would all allow a CWP holder to carry into a non-posted restaurant that serves alcoholic beverages and also reduces the penalties from a maximum jail time of three years to a maximum jail time of two years.  The reduction in maximum jail time now means that a violation does not incur a lifetime federal firearms disability.  The CWP holder must also leave the premises if asked to do so, and cannot consume alcoholic beverages while carrying in the restaurant.

Almost 75% of the people in America live where a CWP holder can carry into restaurants and consume alcoholic beverages, too.  It works fine in the rest of America.  So, what is it about SC CWP holders that would not allow them to eat and drink here, too?  Just because you have a glass of wine with dinner should not make you ineligible to employ effective self-defense.  We do not prohibit drinking and driving, we prohibit driving while under the influence.  CWP holders should be allowed to responsibly consume alcoholic beverages while dining out.

These bills are all a step forward from what we have now.  But, these bills need to be amended to not jeopardize the safety of those who would have a glass of wine with dinner or a beer with pizza.  Remember, robbers look for poorly lit places where people with money can be found, and most people eating at restaurants that serve alcoholic beverages do so in the evenings after dark while carrying money to pay the bill.  It appears that the people most in need of protection are the very people to whom the government denies the means of effective self-defense.

H. 3053, which has the most co-sponsors of the three similar bills, could be amended to read:

“A person is guilty of a misdemeanor, and, upon conviction, must be imprisoned not more than two years or fined not more than two thousand dollars, or both, if that person:

. . .

(3)  consumes alcohol while carrying a firearm in a business that sells alcoholic liquor, beer, or wine for consumption on the premises in violation of Section 23-31-400(B).”

Section 23-31-400(B) makes it a crime to use a firearm while under the influence of alcohol or controlled substances.  This proposed amendment would allow a CWP holder to consume alcoholic beverages, but still keep it a crime to use a firearm while under the influence.  This amendment would keep SC within the mainstream of CWP regulation across the US, and it would no longer provide the bad guys with an assured unarmed class of victims.

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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.

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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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Grassroots Support of Appeal Frees Jason Dickey

Grassroots Support of Appeal Frees Jason Dickey – It took 5 years and thousands of dollars of the legal defense fund. Many of us have contributed to the appeal of Jason Dickey who defended himself with a handgun he legally carried.  He had a CWP.   For the first time in 25 years the South Carolina Supreme Court has reversed the manslaughter conviction of Jason Dickey. From the court decision, “CHIEF JUSTICE TOAL:  Jason Michael Dickey (Petitioner) appeals the court of appeals’ decision affirming his conviction of voluntary manslaughter.  State v. Dickey, 380 S.C. 384, 669 S.E.2d 917 (Ct. App. 2008).  We find Petitioner was entitled to a directed verdict on the issue of self-defense.  Therefore, we reverse.”

Just because you have been found not guilty on appeal does not mean you get out of prison without a struggle. His lawyer and another lawyer friend of mine (Mr. Butler) when to pick him up from prison.  The prison authorities (PA) were trying to force Jason to sign a paper acknowledging he could never possess firearms or ammo for the rest of his life. Jason refused to sign the paper.  The PA said he could not be released until he did sign.  Larry Salley (his attorney) told the PA that Jason would not sign upon the advice of legal counsel and demanded that they contact the warden and/or allow Larry to call the SCDC legal counsel.  Jason had asked Mr. Butler earlier to please call the county sheriff and have the PA arrested for kidnapping if they refused to release him as required by law.  Mr. Butler told Jason I might have to leave and call the sheriff as he had asked me to do earlier.  Eventually, the PA backed off and allowed Jason to be released without signing the paper.

Then one of the Lt. on duty had told Jason he could not leave until he shaved.  Jason refused to do so.  There was a standoff on this issue until the Lt. was called away due to a prisoner being stabbed.

Then, they could not release all of Jason’s belongings because the person with the keys to the storage area was not working that day.  They said Jason would have to return at some later date to get the rest of his belongings.  Weeks later Senator Larry Martin got one of the prison officials to release Jason’s belongings.  The official Mr. Sly did strike out the word inmate on the property.  The complete 15 page case is found below.  This case defines the law on self defense.

http://m.sccourts.org/opinions/displayOpinion.cfm?caseNo=27047

A person is justified in using deadly force in self-defense when: (1)  The defendant was without fault in bringing on the difficulty; (2)  The defendant . . . actually believed he was in imminent danger of losing his life or sustaining serious bodily injury, or he actually was in such imminent danger; (3)  If the defense is based upon the defendant’s actual belief of imminent danger, a reasonable prudent man of ordinary firmness and courage would have entertained the same belief  . . . ; and (4)  The defendant had no other probable means of avoiding the danger of losing his own life or sustaining serious bodily injury than to act as he did in this particular instance.

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What happened to Grassroots

What happened to Grassroots – When Grassroots was formed the officers made a commitment to the members not to release the membership list.  A group of members, including Looney and one other, requested a membership list of Grassroots members.  These two members then sued Grassroots.  The judge, before whom the case was heard, issued a court order preventing Grassroots from doing anything.  That ruling is on appeal and the appeal is still pending.

 

We believe the court case is politically motivated and the court case is being used to silence Grassroots.

 

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Coming Soon

Coming soon….South Carolina Ad Hoc Committee to Preserve Firearms Rights.

We are working hard to get organized to protect your firearm rights here in South Carolina. From Greenville to Columbia to Myrtle Beach, and all locations between we are starting the hard work of preventing the loss of gun rights and the even harder work of restoring gun rights to citizens of this great state.

 

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