South Carolina Attorney General Urges City to Repeal Anti-Gun Ordinances

[Charlie T Waite]

South Carolina Attorney General Alan Wilson (R) declared that two Columbia city ordinances violate the state’s preemption statute and taxpayers may be liable if they are not repealed in a Dec. 3 letter to Mayor Steve Benjamin (D).

“[T]his Office strongly urges that these ordinances be repealed,” wrote Wilson. “The ordinances not only undermine state law, but undercut the Second Amendment. They are an open invitation to costly litigation for which the municipal taxpayers must pay.”

The same day as receiving Wilson’s letter, the mayor of Columbia, the state’s capital, responded back in writing. Benjamin wrote that he “would like to respectfully disagree” with Wilson’s opinion and the ordinances are a “valid and necessary use of the City’s authority to protect its people.”

The two Columbia ordinances were passed on Sept. 2. One prohibits the possession of firearms within 1,000 feet of a public or private school and the other allows for the seizure of firearms from those who have an Extreme Risk Protection Order against them, otherwise known as a red-flag law.

• Schools Ordinance
• ERPO Ordinance

The attorney general’s office issued legal opinions for both ordinances on Dec. 2 at the request of state legislators. Assistant Attorney General David Jones wrote that South Carolina’s preemption statute is construed to mean that firearms laws are set at the state level and unless the statute is significantly changed, Columbia’s firearms laws cannot be set at the local level.

• Schools Opinion
• ERPO Opinion

South Carolina’s preemption statute (section 23-31-510) states, “No governing body of any county, municipality, or other political subdivision in the State may enact or promulgate any regulation or ordinance that regulates or attempts to regulate: the transfer, ownership, possession, carrying, or transportation of firearms, ammunition, components of firearms, or any combination of these things.”

Accordingly, Wilson’s letter concluded that, “A city council is not the state Legislature, capable of superseding state statutes. These ordinances attempt to do exactly that.”

State Rep. Jonathon Hill (R), who requested the attorney general’s opinion on the Extreme Risk Protection Order ordinance, praised Wilson’s letter in a Dec. 3 statement. “Mayor Benjamin and the Columbia City council pose an extreme risk to the right to self defense, not only in the city limits, but also statewide. Not only have they openly defied state law by passing this ordinance, but they have also completely circumvented the human rights protections afforded by the United States Constitution,” said Hill.

As Wilson’s letter notes, taxpayers may be liable for the bill should the city of Columbia choose not to repeal the ordinances and have them enter litigation.

“f these ordinances are not repealed and the city has to defend them in court, taxpayers would be footing the bill,” Robert Kittle, communications director for the South Carolina Attorney General’s Office, said in a Jan. 7 email to America’s 1st Freedom. He added, “we’re hopeful that this issue can be resolved without having to go to court. However, as our office is sworn to uphold the constitutions of this state and of the United States, we are ready to take legal action if necessary to uphold state and federal laws.”

“South Carolina has a law prohibiting cities, towns, and counties from passing local gun laws that are more restrictive than state law. Since Columbia’s local ordinances are more restrictive than state law, they’re in obvious violation of that state law,” said Kittle.

This is not the first time Wilson’s office issued a legal opinion regarding firearms laws in the state’s capital. In August 2019, the Columbia City Council passed a measure that added “ghost guns,” defined as a “homemade firearm which was created or assembled without a serial number,” to the city’s nuisance ordinance. Those in violation could be fined or jailed for 30 days.

The attorney general’s office responded with a legal opinion in September 2019 and wrote that, like the more recent ordinances, this one also violated the Second Amendment and was prohibited under preemption.

Preemption laws are “vital as they prevent localities from enacting an incomprehensible patchwork of local ordinances. Without these measures unsuspecting gun owners would be forced to forego the exercise of their Second Amendment rights or risk running afoul of convoluted and potentially inaccessible local rules,” reported the NRA Institute for Legislative Action.

Wilson also joined 20 other states in November 2019 as part of a coalition led by Alabama Attorney General Steve Marshall asking the U.S. Supreme Court to hear a challenge to an anti-Second Amendment case.