This is the second part of my earlier article on pending legislation in the South Carolina legislature. The first article covered pre-filed bills in the SC Senate. Here we cover pre-filed bills in the SC House.
As stated earlier, these are only the pre-filed bills, and there is always the possibility of future bills and amendments.
Pre-Filed 2017-2018 Legislation in the SC House
H. 3180 : Universal Background Check, Positive Result
Representative Cobb-Hunter proposes a companion bill to Senator McLeod’s S. 143. The analysis is the same as S. 143. The bill would require a background check for all transfers of firearms and deny the transfer of a firearm until the background check is complete and the recipient cleared for owning a firearm.
Such a provision would criminalize the transfer of firearms between private parties, including family members, and would allow the FBI to deny someone their gun rights by merely delaying, or neglecting to answer an enquiry. Recently, the overloaded NICs system routinely resulted in delays in the majority of cases, and very seldom does the FBI actually follow up on such delays. This bill in effect would strip a Constitutionally protected right from many people without due process.
H. 3181 : Universal Background Check, SLED Records
Representative Cobb-Hunter proposes extending the current background check system to the private sale of firearms within South Carolina. The law mandates a SLED approved form for proving a background check was conducted and requires a licensed FFL to perform a background check for every transfer of a firearm and to keep a record of the same. Such records are subject to police inspection at ‘all reasonable hours.’ The only exception applies to immediate family members, but excludes parents, siblings, aunt and uncles, and any similar relations.
This legislation would increase the transaction cost of selling a firearm by requiring any private party wishing to sell his gun to find a licensed dealer willing to conduct a background check. Said dealer is legally able to charge up to $25 for his services, and this will add to the cost of buying a gun. Further, there is no provision exempting CWP holders from the law, even though these persons undergo and pass background checks regularly.
This bill also faces hurdles similar to the other background check bills discussed above, below, and in the previous article.
H. 3182 : Increase Penalty for Carrying a Firearm
Representative Crosby proposes increasing the penalty for carrying a handgun without a permit from one year and one thousand dollars to five years and ten thousand dollars. This would also move the offense from a misdemeanor to a felony, and anyone convicted of violating such provision would lose their firearm rights.
When other states are removing their restrictions on the carrying of firearms, Representative Crosby wants to double down on a constitutionally questionable practice. The effect of this change would strip firearm rights from many innocent actors. Both Georgia and North Carolina allow open carry, and it is not uncommon for an otherwise law-abiding citizen to mistakenly carry a firearm in this manner when traveling into the state. Is it not enough we charge him with a misdemeanor and confiscate the firearm? Now Representative Crosby wishes to charge him with a felony and strip his firearm rights for merely bearing arms. The Constitution should protect citizens from such.
H. 3183 : Assault Weapons Ban
Representative Gilliard and Cobb-Hunter propose to criminalize the possession of ‘assault weapons.’ The bill also includes the provisions of H. 3182, enhanced penalties for repeat offenders, mandatory sentences for violators, and a version of no-fly, no-buy.
The ‘assault weapons’ provisions of this bill are enough to encouraging stopping it. However, the mandatory sentences and two tiered penalties also deserve some criticism. Mandatory sentencing has long been criticized by the left because it removes discretion from the Judge: the man most properly positioned, both physically and legally, to exercise it. The case is no different here. This is the legislature usurping the power of the judiciary.
H. 3187: Concealed Weapons Exceptions
A group of Republican Representatives propose adding a seventeenth exception to the prohibition of carrying pistols. Under the new exception, any ‘first responder’ who is engaged in service during an emergency and already licensed with a CWP are not subject to the prohibition of 16-23-20. What does this mean? In very limited circumstances a few persons will be able to carry a firearm openly. They might even be able to carry in hospitals or other locations not allowed by a CWP but not also prevented by other law.
This complicated provision creates another government class of privileged employees. What is good for the goose is good for the gander. If citizens cannot be trusted to take some action then why should government employees, especially non-law-enforcement, be allowed to do the same? The better question is why do we have a prohibition that requires seventeen exceptions to function? Should we look at eliminating the prohibition instead?
H. 3190: Two Tier Penalties for Carrying Handgun
Representative Gilliard proposes making a felony offense, punishable by five years, a persons’ second offense for carrying a handgun.
This is the law referred to above that has 16 exceptions with at least two new exceptions proposed. The trend across these United States is to eliminate provisions criminalizing the bearing of arms, an action protected by both the U.S. and South Carolina Constitution. Doubling down on a questionable law, one that needs 16 or more exceptions to be effective, is not sound government.
H. 3191: Multiple Tier Penalties for Firearm Violations
Representative Gilliard proposes a multi-tiered scheme somewhere between H. 3190 and H. 3183. Mandatory sentences are included, but are much lower at one to three years.
While this bill is sounder than the ones before, it still limits discretion by the judge and jury. In many cases, this discretion can already be used to accomplish the goals of this bill. The fact such discretion is not being used for this purpose shows that those closest to the action (i.e. the trial and sentencing) do not agree with the legislatures values.
South Carolina gun laws are quite complicated. Before we start enhancing penalties for violating these laws, we should simplify the necessary laws and repeal the outdated and duplicative laws.
H. 3192 : Discharge of Firearms into Outdoor Areas
Representative Gilliard proposes adding outdoor areas, such as outdoor malls and parking lots, to the places it is presumably illegal to discharge a firearm.
This is a good intentioned bill. However, it is already illegal to shoot at a person. The law as worded makes it illegal to shoot into a building and thus presumes that all buildings regularly occupied are occupied. This is an important point for it may not always be apparent whether a building is occupied. Open spaces are differently situated than buildings. When one shoots into an open space, he can see whether or not it is occupied. If it is occupied, and he shoots towards the occupying parties, then he is shooting at persons and can be charged with murder or attempted murder. If it is not occupied, then we have a different situation.
This seems to be a solution in search of a problem. Anyone firing into an open space occupied by people can already be charged with crimes much more serious than this. What is the purpose of an additional crime?
H. 3217 : Report Stolen Firearms
Representative Whipper proposes requiring owners of stolen or lost firearms to report said losses to the police within 24 hours. Failure to do so is a criminal violation up to a three year penalty.
This is a feel good law that does nothing. Having worked with clients that have had guns stolen, I know first hand that police take little interest in such acts. Even when the guns stolen are quite valuable and very usable in crime.
This creates a trap for the victim of theft for not acting. Where else in law do we punish a victim of crime? Where else do we criminalize a failure to act? This well intentioned bill would only serve to punish the victim of a crime. It will not assist the police in locating firearms or collecting them off of the street. Such a law is unnecessary, insensitive to a person who has been criminally violated, and not useful to the purpose it supposedly serves.
H. 3240: Reciprocity
A large group of Representatives propose replacing South Carolina’s Concealed Carry Reciprocity by agreement with a universal recognition standard.
This is a positive change for out of state CWP holders. It is also likely that such legislation will be focused on nationally. However, until passed nationally, South Carolina, for the sake of her own CWP holders, should be mindful that some states require a reciprocity agreement before they will recognize our CWP holders. Dismantling the means by which SLED can enter those reciprocity agreements may end up reducing where a SC CWP holder may carry. For this reason, I would suggest introducing universal recognition in addition to reciprocity agreements.
H. 3248 : Carry on Campus
Representatives Fry and Crawford propose allowing CWP holders to carry on college campuses in some fashion. The actual decision will be pushed down to the college level by requiring the schools to implement the provisions through their policy.
As a practical matter, it is unlikely that colleges, known for being bastions of liberal thoughts and policies, would actually allow CWP holders to carry guns on campus. While the law is a step in the right direction, it should affirmatively allow carry on campuses by removing all restrictions rather than relying on a piecemeal approach by each college. (It is worth noting that colleges will still be able to create their own rules for employees and students.)
H. 3262 : Carry on Campus
Representatives Long, Burns, and Chumley propose allowing CWP holders to carry on college campuses.
This bill eliminates the need for the colleges to implement the provisions as required by H. 3248. This bill is a clean, clear, and precise bit of legislation as far as it goes. While it would treat colleges different from primary schools, it is clear and supportable.
H. 3265 : Firearms on Drones
Representative McKnight proposes criminalizing the use of firearms on drones by police.
The bill is clear and concise. It only affects law enforcement agencies and regulates what activities they may take. This bill is less about firearms and more about internal governance of SC police forces by the SC legislature.
H. 3266 : No Fly – No Buy
Representative McKnight and Cobb-hunter propose criminalizing the transfer of firearms to people on the consolidated terrorist watch list.
While such legislation always sounds good, there are serious fundamental problems. First is the removal of a Constitutionally protected right without due process. In this case, there wouldn’t even be due process to restore the right! Second, the secretive nature of the list would prevent buyers and sellers from checking who is on the list. Thus it would be impossible to willingly comply. Third is the removal of a Constitutionally protected right without any proof of illegal activity.
These types of restrictions are impossible to enforce and disrespectful of the Constitution and the liberties of South Carolinians. If a person has committed illegal acts, then arrest and prosecute him. That will prevent him from owning a gun. But if you cannot do that, he is just a suspect and retains all of his Constitutionally protected rights.
H. 3328 : Universal Background Check : 28 Day Waiting Period
Representative Bernstein proposes mandatory background checks with a 28 day waiting period unless an earlier proceed response is given by NICS. This is essentially the same affect as S. 158. All of the same comments and criticism apply.
These are only the existing pre-filed bills in the House. The legislative session starts this week, and new bills will continue to be filed, and these bills are likely to be amended if taken up by the Senate and House. The SC firearm rights organization, SC Carry, will monitor these bills and attempt to prevent the passage of any bill that negatively affects firearm owners. If you wish to get involved and support pro-firearm rights legislation, I encourage you to contact SC Carry.