Recently, Constitutional Carry and Permitless Carry has gathered a lot of intention both locally and nationally. In the SC House, the Representatives recently voted against advancing H. 3700; a solidly drafted Constitutional Carry Bill. And, the Representatives felt discord from their constituents for the vote. To offset this negative publicity, the SC House has decided to advance H. 3930, a permitless carry bill similar to a bill passed last session.
Executive Summary
H. 3930 is a bill with good intentions. Its draftsmanship is awkward at times, and there are more straightforward ways to accomplish the stated goals. Nevertheless, the bill can accomplish good. Cloture has been invoked, and no new amendments can be introduced. There are four amendments pending on the bill, and only one of those is positive. The Pitts Amendment would eliminate one of the major Constitutional questions of the bill regarding prohibitions on possessing handguns based on age. Therefore this amendment should be supported. All other amendments would weaken the bill and should therefore be opposed by gun owners. (Should any such amendments actually pass, the bill should then be opposed.) If you are politically involved, encourage your SC Representatives to support the Pitts Amendment, oppose all other amendments, and pass the bill.
Effects of the Bill
If passed into law, the bill would allow anyone to carry a handgun, concealed or otherwise, without a permit. Depending on amendment, who can carry may actually be limited to persons 21 and over. This is one of the serious Constitutional questions in the bill.
The locations you could carry a handgun will increase slightly by removing the current prohibition on churches and medical facilities. One of the amendments (The Committee Amendment) would remove these improvements and generally leave untouched where one can carry.
There are minor improvements in the exceptions to carrying a firearm onto school grounds that will serve mostly to protect persons without a Concealed Weapons Permit (CWP) while carrying an unloaded firearm onto school grounds. Such improvement will be important to hunters wanting to pick up a child.
The bill would also increase the “duty to inform” a police officer if you have a handgun. Currently, this duty applies only to those with a permit. As drafted, this bill would apply that duty to everyone with a handgun regardless of how it is carried. This is a step backwards and is Constitutionally questionable. Unfortunately, there is no amendment to fix this issue in the House.
National Reciprocity would be included as the bill would require the state to recognize any out of state permit. Of course, a permit wouldn’t be required in the first place!
Constitutional Questions
The bill as drafted contains two Constitutional questions that need to be addressed. Fortunately there is an amendment to address one of them. The other will have to be addressed in the Senate if this bill passes.
Age Prohibition
The bill would restrict the right to carry a handgun only to those persons 21 or older. While this appears in keeping with the current CWP statute, there is a legal distinction in a permit and a generally applicable law. South Carolina use to have a similar law that prohibited anyone under 21 from owning a handgun. In a criminal case that went to the SC Supreme Court, the Court ruled that “the state constitution precludes the General Assembly from prohibiting this age group’s possession of handguns.” State v. Bolin, SC Supreme Court Opinion No. 26494, (2008).
The analysis would be the same in a case on the bill as drafted, and therefore there is every reason to believe that an age restriction would not stand up to Constitutional scrutiny. Fortunately, Representative Pitts agrees, and he has proposed an amendment to fix this issue. This amendment, known as the Pitts Amendment, is the only amendment that is supported from a pro-firearm-rights position.
Duty to Inform
Current law requires a person carrying pursuant to a CWP to notify a police officer of this fact when asked for ID. Those who carry a handgun in a manner that does not require a CWP are not required to inform police officers of this fact. (The sagacity of not informing is very dependent on the facts.)
Logically, we should not expect a person with criminal intent to admit they have a gun in their possession. And any properly trained law enforcement officer will not assume a gun is not present merely because a person does not say a gun is present. Rather, an officer will stay on alert until a pat down is conducted or the encounter is stopped.
But here is the kicker, in a 1968 US Supreme Court case, the Court ruled that a Felon in possession of a firearm could not be punished for failing to disclose he had the firearm. This violated his 5th Amendment rights under the US Constitution. (Haynes v. United States, 390 US 85 (1968)). So the law would only apply to the law abiding who do not have an intention to commit a crime!
In effect, this provision could only be used to punish the nervous driver who forgets to mention a handgun in the glovebox, or even in the trunk! I cannot support such a trap for the ignorant but innocent. Unfortunately, there is no amendment to fix this issue.
Amendments
As noted earlier, Cloture has already been approved for the bill, and no new amendments may be introduced. Therefore only four amendments can be considered. In order of presentation they are:
Amendment 1 – The Committee Amendment
This amendment has two effects. First, it adds back the prohibition on carrying a handgun into a church or medical facility. Second, it drastically increases the penalty for carrying a handgun into a private building that is marked against concealed carry.
The only mass murder in SC occurred in a church. Unfortunately, this is in keeping with national statistics where mass murders ares most likely to be committed in “gun-free zones.” Eliminating “gun-free zones” is an easy way to “harden” targets and decrease the chances, or effects, of a mass murder. Therefore, our legislators should support allowing carry into churches and medical facilities as a default. Private institutions can, and many already do, post against such carry if they do not wish to have lawful handguns on their premises.
The current penalty for carrying a firearm into a location marked against concealed carry is a trespass charge that carries no more than a $200 fine or no more than 30 days in jail. Under the Committee Amendment, this penalty would increase to a fine of no less than $1,000.00 or no more than 1 year in jail. This is a serious increase in the penalty for failure to notice a sign. Prior legislatures knew that a sign could be missed and that a person otherwise carrying legally should be punished as any other trespasser would. The Committee Amendment would signal out firearm owners for harsher treatment and therefore should be opposed by firearm owners.
Amendment 2 – Blackwell Amendment
This amendment would require training for anyone who carries a handgun. The effect is suspiciously similar to our current CWP system that requires training for anyone who carries a handgun. While the type and amount of training may change, the State would still be able to limit who can carry by controlling training requirements.
This goes completely against the purpose of Constitutional Carry or Permitless Carry. Therefore the amendment is not viewed favorably.
Training is important. And just like training will make you a better marksman, education makes a more informed and effective voter. However, it is generally accepted that a voting test is a bad idea. Imagine the improper ways it could be used. The same is true for any government mandated education, and therefore, while supporting training, I do not support government mandated training.
Amendment 3 – Pitts Amendment
This Amendment would remove the age limitation on who can carry a handgun. This is an important change that places the law on a better constitutional footing. Therefore, I support, and suggest gun owners support, this amendment as the only improvement upon the bill.
Amendement 4 – Funderburk Amendment
This amendment would expand background checks for firearm purchasers. For all the reasons gun owners oppose “universal background checks” or the indefinite delays of increased waiting periods, this Amendment should be opposed.
Conclusion
Properly amended, H. 3930 is a good starting point for the Senate to work on Permitless or Constitutional Carry.
Gun owners would be helped by supporting the Pitts Amendment (#3), and opposing all other amendments. Such a version of the bill is the strongest that can be passed now.
This bill will come up for vote in the SC House on Wednesday, April 5th. If you want to write your legislator, now is the time to encourage them to support the Pitts Amendment, oppose all others, and pass the bill. If you don’t know your Representative, you can find him here.
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