Columbia’s newest gun laws likely are illegal, SC attorney general says
Columbia ought to back off its recent crackdowns on gun usage in the city limits, South Carolina’s top legal officer said in a letter to Mayor Steve Benjamin on Tuesday.
The city has a recent history of setting restrictions on the usage of firearms — and being challenged over those restrictions.
New city laws that prohibit the possession of guns within 1,000 feet of Columbia schools and that allow the confiscation of guns from people who are deemed an “extreme risk” are a violation of state law and of the Second Amendment, S.C. Attorney General Alan Wilson wrote in his Tuesday letter to Benjamin.
The city does not have the right to enact such laws, Wilson argues.
“...With but a few exceptions, a city or county cannot interject itself into the regulation of firearms,” Wilson wrote. “Yet, the City of Columbia has done so repeatedly. The City has previously adopted other ordinances concerning firearm regulation which we have advised in previous opinions were preempted by state law and in violation of the Second Amendment.”
In a written statement Tuesday afternoon, Benjamin responded to Wilson’s letter, saying he “would like to respectfully disagree with the Attorney General Office’s opinion.”
“All of these ordinances are valid and necessary use of the City’s authority to protect its people,” Benjamin wrote. “The City has a heavy burden to bear when it comes to the safety and well-being of its citizens and many visitors. As Mayor and City Council, we have the authority under the South Carolina Constitution, our State Code of Laws, as well as a moral obligation to do whatever is in our power to protect the people and ensure their safety and enjoyment of life. With these ordinances we have done so, all within the bounds of State and Federal Law.”
Columbia’s newest laws relating to firearms were passed in September:
- One established a gun-free zone near schools in the city limits, prohibiting the carrying of a firearm within 1,000 feet of any public or private school. Exceptions are provided for guns kept on private property or carried by those with a legal license.
- Another empowers municipal courts to issue protection orders for people deemed an “extreme risk.” The orders can be issued at the request of either a police officer or a family member, if the individual is determined to be at risk of suicide, has committed or threatened acts of violence. The person would then have to turn over all firearms to law enforcement or a licensed gun dealer for as long as the order is in effect.
Currently, South Carolina does not have a statewide law allowing courts to issue such “extreme risk” protection orders, but 17 other states and the District of Columbia do have some kind of “red flag” law on the books. The proposal is similar to a federal proposal by U.S. Sen. Lindsey Graham, R-Seneca, to introduce “red flag” legislation in the Senate.
The city’s “extreme risk” ordinance points out that state law does not allow local governments to restrict the ownership of guns but does allow the council to regulate the use of firearms.
At the time those two ordinances were passed, Benjamin defended the city’s constitutional and statutory authorities to enact them, despite criticism from some gun rights activists.
Conservative state lawmakers have come after the city over gun issues multiple times in the past two years. One Upstate representative, in particular, has repeatedly targeted the capital city for its gun ordinances.
In 2017, when Columbia became one of the first cities in the nation to ban the use of bump stocks as a firearm accessory, a quartet of Republican state representatives, including Rep. Jonathon Hill, R-Anderson, swiftly introduced a bill that would strike down the ordinance. That bill has so far gone nowhere.
A year and a half later, Hill again challenged Columbia over a new ordinance that cracked down on the manufacturing of so-called “ghost guns” without serial numbers, which make it difficult for law enforcement to track bullets fired in crimes.
Hill requested an opinion from the attorney general’s office on the legality of that ordinance. The attorney general’s office responded with an opinion that said the ordinance would most likely be struck down as unconstitutional if it were challenged in court.
Hill again challenged the capital city this year over the “extreme risk” ordinance, again requesting a legal opinion from the attorney general’s office. The attorney general’s office responded this week by saying the ordinance is “mostly likely” inappropriate for multiple reasons, including “that an innocent owner may be deprived of their otherwise-lawful firearm pursuant to municipal authority without being arrested.”
That opinion, penned by Assistant Attorney General David Jones, was half the basis for Wilson’s letter to Benjamin on Tuesday.
Wilson’s letter is further supported by a second opinion from his office, also issued this week, which also concludes that Columbia’s ordinance regarding guns near schools probably could not hold up in court. That opinion, also written by Jones, was issued in response to a request by state Sen. Ronnie Cromer, R-Newberry, and state Rep. Bill Hixon, R-Aiken.
Opinions by the attorney general’s office do not have the power to overturn a local law.
While none of Columbia’s recent gun laws have actually been challenged in or struck down by a court, it has happened before:
In 2015, the city passed an ordinance that prohibited the carrying of firearms within 250 feet of the State House grounds, a temporary measure in response to the removal of the Confederate flag from the grounds. A court later ruled the ordinance encroached on state law.
Bristow Marchant contributed reporting.
This story was originally published December 3, 2019 at 3:20 PM.
