Emergency Gun Bans & the Constitution
● Lawsuit alleges city acted improperly in gun ban.
● Attorney General opinion agrees.
● City’s ban runs against Second Amendment, court precedent.
● Flouting constitutionality a troubling trend in state, local bills.
Of the rights enumerated in the U.S. Constitution, few have been contested as fiercely as American’s Second Amendment right to keep and bear arms. Throughout the nation’s history all manner of governing bodies have crafted laws intended to facilitate either expansive or restrictive implementations of this right. The Columbia City Council recently added to this history when it passed an ordinance prohibiting the carrying of a firearm (except by law enforcement) within 250 feet of the South Carolina State House grounds for a period of 30 days.
At the time the ordinance was passed, the State House grounds and surrounding areas were attracting crowds far in excess of the norm. Protesters were regularly present, some advocating for the removal of the Confederate battle flag flown in front of the Confederate memorial, and others advocating for its retention, the presence of the flag having once again become controversial after the deaths of nine African American South Carolinians in Charleston at the hands of a racially motivated killer.
City council members believed (as stated in an ordinance) the protests at the State House grounds constituted extraordinary circumstances and justified an emergency ordinance to preserve “public safety, free speech and freedom of peaceable assembly.”
Councilors may have believed a weapons ban would create a safer environment, but they failed to take into account the proper limitations of their powers. Passing this ordinance not only contributed to a history of Second Amendment regulation, but also to a history of South Carolina lawmaking bodies ignoring the law when it suits their purposes.
No state municipality, including the City of Columbia, possesses the power to impose restrictions on firearms that go beyond those imposed by the state legislature. It therefore didn’t take long for a citizen to file a suit challenging the ordinance in court. Lexington resident Walid Hakim filed a lawsuit July 16 – one week after the ordinance was passed – challenging its constitutionality. Within a week, the Attorney General’s office – upon request by Senator Ronnie Cromer (R- Newberry) – issued an official opinion on the ordinance’s constitutionality.
Without commenting directly on the merits of Mr. Hakim’s lawsuit, the Attorney General’s office made clear that, in its opinion, the ordinance was unconstitutional.
The reasoning behind the opinion is easy to follow. The “home rule” amendment of the state constitution – article 8, section 14 – states that local governments, when enacting provisions, shall not set aside, among other things, state law concerning “criminal laws and the penalties and sanctions for the transgression thereof.” This section of the constitution has been interpreted by the South Carolina Supreme Court as prohibiting local governments from imposing greater or lesser penalties than those imposed by state law (City of North Charleston v. Harper), and from criminalizing conduct that is legal under state law (Foothills Brewing Concern. Inc. v. City of Greenville).
The Attorney General’s opinion points out that the city council’s emergency ordinance violates both of these tenets. By prohibiting concealed weapons permit (CWP) holders from carrying firearms within 250 feet of State House grounds, the ordinance criminalizes conduct that is legal under state law. And the penalty for carrying a firearm in the restricted area is less than the penalty imposed by state law for unlawful carry of a firearm.
Further, the emergency ordinance directly violates another state code section, 23-31-510, prohibiting the governing body of “any county, municipality, or other political subdivision” from regulating or attempting to regulate “the transfer, ownership, possession, carrying, or transportation of firearms, ammunition, components of firearms or any combination of these things.”
Finally, the Attorney General’s opinion suggests the emergency ordinance violates the Second Amendment to the U.S. Constitution as interpreted by the U.S. Supreme Court in McDonald v. Chicago. The AG’s opinion does not expand on this point, but in McDonald the Court ruled that an individual right to keep and bear arms is one of the rights protected against state infringement by the Fourteenth Amendment to the U.S. Constitution. McDonald concerned a law that completely prohibited the ownership of firearms within Chicago; it’s unclear if the precedent would apply to a law prohibiting the carrying of a firearm in a far more limited area of public space.
One case that may give some insight is Moore v. Madigan, in which Judge Richard Posner of the Federal 7th Circuit Court of Appeals ruled that a prohibition in Illinois law on carrying a firearm in public was unconstitutional. Judge Posner believes laws prohibiting carrying of firearms in public violate a general right of self-defense. But as in the McDonald case, Moore concerned a broad prohibition (the carrying of firearms in public), and not a more narrow prohibition as was imposed by the City of Columbia in its emergency ordinance. It’s also worth noting that other courts, such as the Third Circuit Court of Appeals, have upheld highly restrictive firearm laws, such as a New Jersey law requiring citizens to demonstrate a “justifiable need” before they can receive a permit to carry a weapon outside the home. These two opinions seem to contradict each other and the U.S. Supreme Court has yet to resolve this split among the circuits.
Given this split, it cannot be said definitively that Columbia’s ordinance violated the federal constitution. But at the very least it is highly questionable whether it is compatible with the Second Amendment.
What’s absolutely clear, though, is that no government should have the power (or, in this case, perceived power) to strip citizens of their rights simply by declaring an emergency or extraordinary circumstances. Even if a government body is correct in assessing a situation as an emergency, it’s precisely during these times that citizens most need their rights.
Law-abiding citizens should not be disarmed and deprived of their right of self-defense because of possible violence from bad actors. The U.S. District Court for the Eastern District of North Carolina recognized this fact in 2012 when it struck down a North Carolina law that allowed a ban on public carry of firearms during a declared state of emergency. According to Judge Malcolm J. Howard “it cannot be overlooked that the statutes strip peaceable, law-abiding citizens of the right to arm themselves in defense of hearth and home, striking at the very core of the Second Amendment.”
Once the Attorney General’s opinion was issued, the city council was quick to walk back its actions. The city council voted on July 21 to repeal the ordinance, thereby ending the weapons ban prior to the scheduled expiration date. The change in policy doesn’t seem to have been accompanied by a change in mindset, however. Following the repeal, Columbia Mayor Steve Benjamin was quoted as saying “city leaders … felt they did the right thing regardless of any criticism.”
The problem isn’t confined to municipalities. The General Assembly routinely passes laws without exhibiting any evidence that lawmakers have considered the legislation’s conformity to either state or federal constitution. This year, for instance, lawmakers nearly passed an “ethics” bill that would have violated first amendment rights by regulating protected speech, and tax hike that would have flagrantly violated the state constitution by raising revenue through a Senate bill. The state, indeed, may be worse offender than any municipality, since state lawmakers unilaterally appoint the judges who deciding their laws’ constitutionality.
The assumption on the part of local and state lawmakers that “we want to do it” is the same as “it’s legal” and “it’s constitutional” ought to be challenged at every point. Mr. Hakim’s lawsuit accomplished that end in this case. Other ways of challenging the assumption ought to be explored as well.