Please note: the links to various state statutes in this post are to the CURRENT wording of the law and may not be updated with the changes made by H3094.
This post was written by Robert K. Merting, Attorney at Law. This post is for informational purposes only. This does not constitute legal advice, nor is this information intended to create or rise to the level of an attorney-client relationship. Online viewers should not act upon this information without seeking professional legal counsel.
The General Assembly passed the “Open Carry With Training Act” on May 13 sending it to the Governor. Governor McMaster signed the Act into law on May 17, and we can expect some changes in South Carolina gun laws in the coming months. Some are good. Some are bad. Some just are. And some are down right ugly! Let us look at what is in store for South Carolina.
The Quick Summary
The average person will see no changes with this law. For those acquiring a Concealed Weapons Permit (CWP), there will be a few minor changes in the class that will go unnoticed. For those with a CWP, you will be able to carry a ‘Concealable Weapon’ openly. And if you take part in a city permitted event, you’ll want to look closely for any restrictions on carrying firearms within the event area.
The Good: What the law does to restore the rights of South Carolinians.
South Carolina was one of the few states in the Union to not allow the open carry of handguns. In fact, we were one of only four or five, such as New York, that generally prohibited the open carry of handguns. This law changes that.
Now a South Carolinian, as long as he has a CWP, may also carry his ‘Concealable Weapon’ openly. Notice the wording: ‘Concealable Weapon.’ The new Act leaves the definition of a Concealable Weapon unchanged. The firearm must be “less than twelve inches measured along its greatest dimension”. S.C. Code Ann. § 23-31-210(5). AR-15 pistols, and all other handguns greater than 12”, are illegal to carry openly or concealed. This was already the law, and it is important not to forget this.
The new changes extend into vehicles where a handgun can also be “carried openly or concealed on or about his person.” S.C. Code Ann. § 16-23-20(9)(b). Of noteworthiness, this section applies to ‘handguns’ and not ‘Concealable Weapons.’ Arguably, this means you could carry an AR-Pistol in the car, openly or concealed.
There is one extension for where a person can carry. Section 7 of the Act creates S.C. Code Ann. § 23-31-232 which empowers churches leasing premises from schools to authorize permit holders to carry onto the church / school grounds. This permission is only valid while the church is in active possession of the property and when no students are on the grounds as part of a school function. This is good as far as it goes.
The new law however does little to clarify the current law when it comes to a church with a school on the grounds. Where the church owns the property, it does not lease the same from the school. Thus S.C. Code Ann. § 23-31-232 does nothing to clarify whether the property is a church, a school, or both. And further, it is not uncommon for religious schools to require their students to attend church services. Such attendance negates the benefit of the new code section due to the restrictions regarding no student presence on the property.
While S.C. Code Ann. § 23-31-232 leaves much to be desired, it did not move the law in the wrong direction.
Finally, the Act removes all government charges for a CWP. It’s not much, but every $50.00 counts!
The Neutral: Some changes just are.
The Act tweaks signage requirements to apply ‘No Concealable Weapons’ signs to openly carried Concealable Weapons. This should be expected. The new law did not change the kind of firearms one could carry, and thus a sign prohibiting the carrying of a class of firearms, Concealable Weapons, would apply to that class whether concealed or open. The additional clarity is welcomed.
Training for CWPs has been expanded to statutorily require the discharge of at least 25 rounds of ammunition and to cover securing a firearm in a holster, the cocked and locked carrying of a firearm, how to respond to a person who attempts to take your firearm, and de-escalation techniques. SLED already requires the discharge of 50 rounds, and holstering and re-holstering is common in class. The other topics will likely be covered in thirty minutes and will create an unnoticed change in new classes.
These changes do not require additional training for existing CWP holders.
All Animals are Equal, but Some Animals Are More Equal Than OthersGeorge Orwell, Animal Farm
The Act expands S.C. Code Ann. § 23-31-240 by both adding to the list of who can carry anywhere in the state and by allowing the ‘chosen ones’ to carry even when not on duty. So not only can active judges, solicitors, and worker’s compensation commissioners carry a concealable weapon on duty, they can carry a concealable weapon any time and anywhere. And the Legislature included the Attorney General and his assistants in this privilege.
While this makes no difference for the average South Carolinian, it is comforting to know that vast swaths of South Carolina law does not apply to those people who enforce and interpret the law.
The Pointless Blabber
The Act contains a bit of language, S.C. Code Ann. § 23-31-250, in the vein of nullification. This language merely recites what is accepted law: The Federal Government cannot compel state and local governments to act.
Specifically in this case, the Federal Government cannot require state and local governments to enforce prohibitions against the carry of firearms. This is certainly the law. Passing pretty language to restate this does not accomplish anything.
The Federal Government persuades local governments into desired actions through grant money. Until South Carolina politicians can turn down Federal dollars, we will continue to lose our freedoms. Sometimes the Federal Government does not even have to pay the state to cooperate. For an example, see The Ugly below.
The Bad: Making a Patchwork of Restrictions
Seldom can a clean, completely positive bill make its way through both chambers and to the Governor’s desk. This is no exception.
The Act changes the S.C. Code Ann § 23-31-520 to allow local governing bodies carte blanche in regulating the open carry of firearms. Such regulations are restricted to permitted events on public property. However, such property will include streets and parks, and practically every street festival, parade, fair, rally or protest requires a permit. It takes little imagination to see that some municipalities will, as a matter of principle, abuse the Constitution and prohibit the open carrying of firearms as a matter of default for every permit issued.
We could not carry handguns open before, so why is the bad? We could, and still can, openly carry rifles and shotguns. The wording of S.C. Code Ann. § 23-31-250 allows local governments to restrict the open carry of firearms and not just concealable weapons. This one slight change in the wording now means local governments can regulate what was once off limits.
Do you remember that open carry fishing demonstration that South Carolina Carry held in Columbia a couple of years ago? You better believe Columbia will prevent the carry of firearms if another permit is issued. The only option now will be ‘impromptu’ appearances without permits.
The Ugly: Some Changes Are Not well thought out
There are a couple of sections in this Act that may cause problems for the South Carolina gun owners, both CWP holders and non-CWP holders alike.
For the CWP Holder
For the CWP holder, there exists the potential for confusion about signage requirements. Historically, SC required very specific signs detailed in S.C. Code Ann. § 23-31-235. This brought clarity to the law and on the ground, and it protected CWP holders from having to read ‘fine print’ on signs inside buildings to know whether or not concealed carry was allowed. Signs either meet the requirement or they do not, and if not, the signs are unenforceable.
The Act introduces an ambiguity into what was clear law. Under the Act, S.C. Code Ann. § 23-31-220(C) provides:
“In addition to the provisions of subsection (B), a public or private employer or the owner of a business may post a sign regarding the prohibition or allowance on those premises of concealable weapons, whether concealed or openly carried, which may be unique to that business.”
A similar provision is found in S.C. Code Ann. § 23-31-235(D):
“Nothing in this section prevents a public or private employer or owner of a business from posting a sign regarding the prohibition or allowance on those premises of concealable weapons, whether concealed or openly carried, which may be unique to that business.”
The question is: How do we interpret “unique to that business?” Is it the manner in which concealable weapons are carried? Is it the make up of the sign? Is it the location of the sign? All of these?
Parsing the language of the Act provides a strong argument that the sign “may be unique to that business” in practically any manner. This does away with much of the clarity provided before. Unique signs may no longer be as clear nor as obvious.
The enforceability of such signs will present a new issue. Notice the law says nothing herein shall prevent the posting of the sign. The language does not provide that such signs satisfy the posting requirements. We can post signs all day long spouting things that cannot be enforced; it is the enforceability that matters. (Strictly speaking, the additional statutory language can be interpreted as a nullity if such signs are not enforceable. That strikes against such an interpretation.)
What was probably meant by the politicians is that a posting entity may prohibit i) open carry, ii) concealed carry, iii) or both by the posting of signs that make such particular prohibitions clear and obvious while meeting the other requirements in the law. But that is not what they said. Instead the Legislature allowed any signs “which may be unique to that business.”
For future visitors to the R. K. Merting law firm please be aware that:
The open carry of all concealable weapons is approved unless you are a politician in which case the open carry of a concealable weapon is only allowed when both i) the weapon is pink or purple in color, and ii) is carried in a holster bearing the image of Hello Kitty ™, but in the case you, as the politician, introduced language to amend H. 3094 into a Constitutional Carry bill or voted for such language in a recorded vote when so introduced, the weapon may be any color provided the weapon is a revolver. The Hello Kitty ™ holster requirement is not waived.
Allowing the posting of ‘unique’ signs could lead to all types of nonsensical prohibitions, restrictions, and the like. Unfortunately, CWP holders will now have to be aware of more signs and determine how best to respond to them.
The Senate introduced a reporting requirement in Section 10 of the Act. This section is actually both Bad and Ugly. It has as much appeal as a Hillary Clinton presidency.
The goal of the section is requiring broader reporting to the SC State Law Enforcement Division by the SC Courts. Presumably, to catch more people in firearm purchase background checks who are prohibited by Federal law from owning firearms.
Remember the criticism above regarding the meaningless blabber about not cooperating with the Federal Government in restricting the carrying of firearms? Well, this section is actual cooperation with the Federal Government to prevent South Carolinians from even owning guns. So much for the grandstanding.
The 1968 Federal Gun Control Act contains multiple classes of prohibited persons who cannot own guns. For over fifty years, South Carolina has not cooperated with the Federal Government and has failed to report certain information that would be used against South Carolinians to deny them the right to own and bear arms.
No more. Your information, every peccadillo, will be reported.
Permanent Restraining Order issued? Report.
Emergency, ex parte, restraining orders? Report.
Order of Protection issued? Report.
Charged with a crime? To hell with innocent until proven guilty: Report!
Matters in the Circuit Court? Report.
In the Magistrate Court? Municipal Court? Family Court? Report. Report. Report!
And any “other orders that prohibit a person from legally purchasing or possessing a firearm.”
‘Did we miss anyone?’
What will this mean in practice? A lot more people will be denied a firearm because of a Federal prohibition. Some of these denials will be legally correct. Others will be legally incorrect due to incomplete information. That is, false positives. Those persons who are denied will bear the burden of ‘proving their innocence’ or restoring their rights.
This is a steep price to pay for the ability to carry some handguns open. This price will not fall evenly upon South Carolinians, and the full cost will not be known for many years.
So when can we open carry? When does the law take effect? When do I not have to pay for a permit?
There is not a single date. The non-commandeering language, i.e. the toothless nullification, goes into effect upon the Governor’s approval (May 17th). The extra reporting requirements go into effect on October 1, 2021. The remainder of the Act [the open carry portion] takes effect “ninety days after approval by the Governor.” i.e. August 15th.
So in short, expect everything in the Act to become active law by October 1, 2021. Some parts will come in before that, but everything will be in effect by that date.
There is some good in this law. There is some bad. And there are several areas that will leave a mess to be figured out on another day. The people who will be affected the most by this law are those who will have to sort through the ‘mess’ to determine what the law means or to get their rights back. For most of my readers, you will be able to enjoy open carry with a CWP without other effects. Bully for you. For those who are affected by increased reporting, or ensnared by ‘unique’ signs, do not hesitate to contact me for help. Everyone should have their 2nd Amendment rights, and my firm helps make that happen.
This was reposted with permission from Robert K. Merting, Attorney at Law.