Constitutional Carry Law updates by Attorney Robert Merting

On March 7, 2024 “Constitutional Carry” finally came to South Carolina. Only 232 years, 2 months, and 21 days after ratification of the Second Amendment. But who is counting?
Now that we have “it”, exactly what is “it” we have? Well, it certainly isn’t a clean repealing of laws governing firearm possession. Rather it is a step forward, backward, and mostly sideways. Let’s look at each provision enacted to get a better understanding of our new law.    

Carrying on Capitol Grounds and in Capitol Building  Generally, persons cannot carry firearms upon the Capitol grounds or within the Capitol itself. Previously there was an exception, limited to CWP holders, allowing CWP holders authorized to park on the Capitol grounds to store a firearm in their vehicle as long as the firearm “is not readily accessible”.  This section is amended to remove the CWP limitation so that anyone possessing a firearm and who is authorized to park on the Capitol grounds or in the parking garage below the Capitol grounds may do so.  The provisions requiring the firearm to be secured remain in the statute.  

The BIG change: The Prohibition on Possessing Handguns becomes Sensitive Places One May Not Carry a Handgun Previously S.C. Code Ann. § 16-23-20 prohibited the possession of handguns unless such possession fell into one of sixteen exceptions. Alas, my jest that the hallmark of a good law is the number of required exceptions, and a mere sixteen is the mark of an excellent law, is no more. 
The exceptions of Section 16-23-20 have become a list of gun-free-zones where persons may not carry a handgun “unless specifically authorized by law. The list is in effect an extension of the limitations on locations previously found in the CWP statute. Now these gun-free-zones apply to anyone carrying a handgun whether possessing a CWP or not.
What are the gun-free-zones? Law enforcement facilities, courthouses, polling places, offices of a governing body, schools, federally prohibited locations, churches, hospitals and medical facilities, and posted locations. In short, for a general rule: Government buildings, churches, doctors, and posted locations. 
Outside of these locations, it is no longer illegal to possess a handgun. Thus, the average Joe can now bear arms for self-defense. 
This key section contains a couple more exceptions. 
Despite having tried to get away from lists, the General Assembly couldn’t help themselves, a sub-section B includes a list of persons to which the gun-free-zones do not apply. And who does this include: law enforcement, members of the armed forces, retired law enforcement, and another list of special persons which we will cover later. 
Sub-section C includes a list of statutes that this provision in the law does not affect. These are: 1) the prohibition on firearms on the Capitol grounds, 2) prohibitions applying to certain persons and stolen handguns, 3) prohibitions on carrying on school grounds, 4) prohibitions on carrying on elementary school grounds, 5) prohibitions on carrying firearms in places that sell alcohol, 6) prohibitions on providing firearms to mental patients under the care the Department of Mental Health, 7) prohibitions on the possession of firearms for patients receiving addiction care from the Department of Mental Health, 8) prohibitions on the possession of firearms in state parks, and 9) and the ability to apply for and receive a CWP. 
Last, sub-section D allows any person not otherwise prohibited by law from carrying a firearm to store a firearm anywhere in a vehicle, whether occupied or unoccupied, even on the prohibited locations discussed above. (** Don’t try this in a federally prohibited location.) However, beware that other provisions of law, such as prohibitions on school grounds, may still apply.  

Penalties for Violating Prohibitions on Places One May Carry Section 16-23-50 is amended to introduce escalating penalties for violations of Section 16-23-20. Where the historical penalty was a one-year misdemeanor, the statute now imposes a three-tier penalty assessment depending on whether the offense is a first, second or third and subsequent offense. A first offense remains a one-year misdemeanor. A second offense is now a three-year misdemeanor which will trigger the federal loss of firearm rights. And a third or subsequent violation is a five-year felony.
While the introduction of felony offenses and prohibiting convictions for merely carrying a handgun is a pitiful development for an allegedly Republican controlled legislature, the majority of prohibited locations are already subject to felony prohibitions elsewhere in the law. Only churches, doctor offices, the occasional private polling place, and daycare facilities were not already places subject to outright prohibitions on firearm possession with felony punishment. 
It is also worth noting that Section 16-23-20(A)(11) regarding posted prohibited locations explicitly provides that carrying a firearm into such a location can only be charged as a trespass.  

Return of Found Handgun Section 16-23-55 is amended to remove the requirement that a person requesting return of a found handgun unclaimed after ninety days complete an application process.  A new provision provides that the handgun shall not be returned if the person is legally prohibited from possessing a handgun.  

Possession of Firearm on School and College Property and in Interstate Rest Areas Section 16-23-420 is amended to expand exceptions formerly limited to CWP holders. Now any person possessing a firearm may leave the firearm secured in their vehicle when on school grounds (provided it is stored in an approved location). Further, anyone may now carry a firearm upon the premises and into the buildings of an interstate highway rest area.  

Carrying Firearm on School Property Similar to the section above, Section 16-23-430 is amended to expand exceptions formerly limited to CWP holders. This applies to elementary and secondary schools. 

Carrying A Firearm On Premises of Business Selling Alcohol Section 16-23-465 imposes penalties for carrying a firearm into a business which sells alcohol for consumption on premises.  A “knowingly” requirement was added creating a possible defense if a person forgets they were carrying a firearm or did not know the location sold alcohol. Further, an exception allowing the carry of concealable weapons has been expanded to include both CWP holders and other persons carrying firearms.
Of interest is a change in wording from “concealable weapon” to “firearm.” Previously sub-section b only allowed the carrying of a concealable weapon, which is defined as a handgun under 12 inches in length. The sub-section has now been amended to replace one instance of concealable weapon with firearm yet another instance of concealable weapon is left as was. It is unclear whether a person may now carry any firearm or only concealable weapons. Prudence advises only carrying concealable weapons. 
Prohibitions on consuming alcohol while carrying the concealable weapon remains.  

CWP Holder Provisions Much of Section 23-31-215 was cleaned up in this bill as many sections were moved elsewhere. Section 23-31-215(K) is amended to strike the requirement that CWP holders have their permit on their person and the duty to inform law enforcement of CWP status. Further, the time limit for reporting loss of a CWP permit is clarified from “immediately” to within 48 hours of the time the CWP holder should know or should have known of the loss or theft.    

Loss of Firearm, Rifle or Shotgun Section 23-31-215(K) is further amended to add a requirement that loss or theft of a firearm, rifle or shotgun must be reported to the law enforcement agency with jurisdiction within ten days of discovery. This is concerning for two reasons: 1) The reporting requirement is only placed upon a “person who is lawfully in possession of a firearm.” Persons illegally possessing firearms have no duty to report the loss or theft of their firearms. This is just another instance of adding paperwork and regulations to law abiding citizens with no intention whatsoever of penalizing criminals.
 2) No punishment is provided for failure to abide by this law. “In cases of legal conviction when no punishment is provided by statute the court shall award such sentence as is conformable to the common usage and practice in this State, according to the nature of the offense, and not repugnant to the Constitution.” S.C. Code Ann. § 17-25-30. Other crimes where no punishment has been provided by statute, such as breach of the peace of a high and aggravated nature, have supported ten year sentences. If one instance of such sentence is found constitutional, conviction under this section will cause loss of firearm rights. 
This was a very poorly crafted feel-good law that puts the victim of crimes at risk of losing their constitutional rights. In no other instance would our General Assembly punish victims, and South Carolinians who choose to exercise their Second Amendment rights should not be treated as second class citizens.  

Carrying a Concealed Weapon Sub-section 23-31-215(M) is amended by striking the list of gun free zones and replacing it with a reference to the list in S.C. Code Ann. § 16-23-20(A). This is a nice development for it creates consistency especially in the case of future amendments to the law. Possessing a handgun in one of these locations carries the same penalties with the addition that a CWP permit may be revoked for five years. 
Sub-section 23-31-215(O) is amended to clearly state a permit is not required for a person to carry a firearm in a manner not prohibited by law.  

Carrying a Weapon on Premises of a Business Section 23-31-220 allows private property owners the ability to prohibit carrying handguns on their property by the posting of a proper sign. The section is amended to conform the wording to include CWP holders as well as those carrying without a permit and retains the language permitting the employer, owner or person in control of the property to ban carry of handguns on the premises.  A person who knowingly violates the ban may be charged with a violation of Section 16-11-620.
It is worth noting that the prohibitions created by this section and 16-23-20(A)(11) do not apply to other kinds of firearms.   

Carrying on School Property Leased by a Church Section 23-31-232 is amended to allow any person to carry a concealable weapon when given express permission to carry a concealable weapon on school property leased by a church during the times the church has control of the property.    

Signage Banning Carry Section 23-31-235 regarding signage banning carry is amended to include, in addition to CWP holders, any person who may be carrying a concealable handgun.  

Carrying into a Dwelling The prohibition on carrying a concealed weapon into a residence or other dwelling was moved from section 23-31-225 to 23-31-600(D). Of interest, the language prohibits the carrying of a “concealed weapon” and not firearms specifically. Thus, it may be legal to openly carry a firearm but illegal to carry a dirk concealed. 

Would Chuck Norris violate the law if he puts his hands in his pockets?  

Possession of Concealable Weapons on State Parks Section 51-3-145(G) allowing the carry of concealable weapons (i.e. handguns under 12 inches in length) on State Park property is amended to include, in addition to CWP holders, any person who may be carrying a concealable weapon who may carry openly or concealed. Note this does NOT include the government owned buildings on park property including bathrooms.  

Eliminated Statutes Section 16-23-460, generally prohibiting the concealed carry of deadly weapons, has been eliminated. Thus the concealed carry of a Mossberg Shockwave or other such firearm is now only subject to location restrictions. 
Section 23-31-225 was moved into Section 23-31-600(D) covered above. 
Section 23-31-230 allowing the carry of a concealable weapon from a vehicle to a hotel room has been eliminated. This unfortunately now allows hotels to post to prohibit the possession of handguns. Plan your vacations accordingly.   

Persons Prohibited From Carry Section 16-23-500 is South Carolina’s version of ‘felon in possession.’ Previously the statute only prohibited firearm possession by the most serious offenders: those persons convicted of violent crimes defined in statute. 

This bill drastically broadens the category of prohibited persons and removes the right to possess firearms from those convicted of a “crime punishable by imprisonment for more than one year.”  Following in Congresses footsteps, the General Assembly defines “crime punishable by more than one year” to mean something other than a crime punishable by more than one year. To make matters even worse, despite using the same term of art as the federal government, the General Assembly defines it differently. The state definition excludes offenses relating to the regulation of business practices, misdemeanors punishable by a term of imprisonment of five years or less, and crimes expunged, set aside, or pardoned.   A person who violates the provisions of this section will be guilty of a felony and, for a first offense, must be imprisoned not more than five years; for a second offense, must be imprisoned for a mandatory minimum of five years, but not more than twenty years; and for a third or subsequent offense, must be imprisoned for a mandatory minimum of ten years, but not more than thirty years.  

I cannot stress enough that the South Carolina prohibition and the federal prohibition are not identical in scope and neither are their methods for recognizing the restoration of rights. Application of this area of the law will be rife with grey areas.  

Expunging a Conviction for Unlawful Possession of a Firearm Since the act of carrying a firearm has been recognized as generally legal, the General Assembly has added this conviction to the qualifying conviction for expungements in S.C. Code Ann. § 22-5-910. However, an expunction is only possible for a first offense and only if the person had no other convictions for three years following. 

A second expungement option was added in S.C. Code Ann. 17-1-65, which only has the limitation of expunging one conviction. An application to expunge a conviction under this section must occur within five years from enactment.  

Privileged Noblemen  Rejoice! The General Assembly has breathed new life into an old joke: Merting’s Maxim: The quality of a law is inversely proportional to the number of exceptions to said law. S.C. Code Ann. § 23-31-240 provides for fifteen special categories of persons, i.e. exceptions, who may “carry a concealable weapon anywhere within this State.” 
Who are these trusted and privileged noblemen? Judges of every sort including administrative law judges, the Attorney General, solicitors and their assistants, workers’ compensation commissioners, clerks of court, and public defenders. NOTE: public defenders are not so special; they cannot carry into correctional facilities. 
We are just one exception shy of matching the record previously held by S.C. Code Ann. § 16-23-20. Who else could we add?  Paging Senator Harpootlian.   

Open Carry is Not Probable Cause S.C. Code Ann. § 23-31-245 was added to specify that openly carrying a weapon in accordance with the CWP Article “does not give a law enforcement officer reasonable suspicion or probable cause to search, detain, or arrest the person.” It’s a shame we need a law to state that constitutionally protected conduct is not grounds for arrest. 
This leaves open the question whether carrying openly pursuant to another Article or Title is grounds for probable cause. It shouldn’t be, but the Fourth Circuit has waffled on this matter.   

The Business of Permitting The General Assembly has mandated that SLED offer “free” CWP courses twice a month in every county. While nothing is free, and we the tax payers will have to shoulder the cost of this, persons wanting a CWP will no longer have to pay for a class: IF they want to sign up for a state provided course and wait for their opportunity to enroll.  

To their credit, SLED intends to contract out this responsibility with private trainers who have already been offering such classes for decades. 
Of course, if you like private education, you may always hire an instructor. Unfortunately, the variety of offerings previously experienced are likely to diminish with the introduction of the State as a competitor in the market place for training.   

Just Kidding: We Are Still Punishing You for Not Having a CWP The Senate introduced Section 16-23-495 into the bill which creates a special crime and punishment for a person convicted of committing a crime or attempting to commit a crime with a “concealable weapon” when said person does not have a CWP. This add-on crime is not defined as a felony or a misdemeanor. However, the crime provides for a three-year punishment, enough to trigger a federal prohibition on the possession of firearms. 
The punishment under the add-on crime cannot exceed the punishment of the underlying offense. It is uncertain what effect this limit has on firearm rights for those convicted under this statute. If the underlying offense is a misdemeanor punishable by two years or less, then arguably a conviction under this section could not carry more than two years and thus would not trigger loss of firearm rights. However, the opposite argument can be made. 
This provision was designed to kill the bill. And honestly that should have happened. Unfortunately, this provision was enacted into law leaving a mess to be sorted out. Many good legislators expressed their concern that this provision is an unconstitutional denial of the right to equal protection under the law. Despite the belief this provision is unconstitutional, they voted for the bill. Is that a violation of their oath to uphold the Constitution and protect it from all enemies?   

CWP Age Lowered The bill lowers the CWP age from twenty-one to eighteen. Three federal courts have already found it unconstitutional to prevent 18 to 20 year old persons from obtaining CWPs. The S.C. Constitution prohibits age discrimination after the age of eighteen. A challenge to the old statute was already in the works. A thanks goes out to the Senators who saved me that lawsuit.   

As of this writing, the relevant parts of SC Law have not been updated. The full text of the changed by HB3594 sections of SC Law can be seen here.  

Do you have a NFA application, firearm purchase or CWP denial? Robert can help. Ever wonder if Robert handles more than firearm law? He does. Robert is familiar with all types of legal issues. From estate planning to car accidents, he can either help or guide you to the right attorney. If you are facing a legal issue give him a call.       Contact Robert   View this email in your browser

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