Columbia sued for gun laws that SC Attorney General says undercut Second Amendment
South Carolina Attorney General Alan Wilson is suing Columbia over the city’s gun laws.
Wilson filed the lawsuit Wednesday in the South Carolina Supreme Court, asking it to strike down the gun-related ordinances that Wilson previously called illegal.
“We have consistently advised for almost three decades, since 1991, that state law preempts local regulation of firearms,” Wilson said in a news release. “These ordinances clearly violate the state law that prohibits local governments from passing any gun laws or ordinances that regulate the transfer, ownership, or possession of firearms.”
Wilson filed the suit in the state Supreme Court so it would hear the case without it moving through lower courts first, according to the attorney general’s office.
In his State of the City address on Wednesday, Columbia Mayor Steve Benjamin addressed the pain gun violence has brought to communities in Columbia and beyond.
“That’s why, Mr. Attorney General, we won’t stop working to take illegal guns off the street,” he told a crowd at Columbia’s convention center. “As we debate politics, some are debating survival.”
Afterward, Benjamin said he stands behind his response to Wilson’s letter challenging the laws in December.
“The ordinances are in compliance with the state statute,” he said. “We continue to believe that, and we’ll defend that... We believe the attorney general’s interpretation is incorrect.”
While Benjamin said he “hopes” Wilson’s action isn’t politically motivated, “I know where I live,” Benjamin said.
“Second Amendment support is strong here. That’s why we crafted these ordinances to be designed toward saving lives,” the mayor said. Referring to an ordinance regulating so-called “ghost guns” now under challenge, Benjamin said, “It’s hard to believe firearms with removed serial numbers should be available.”
Columbia City Councilwoman Tameika Isaac Devine said the attorney general is doing what he believes his position requires, but said the city council “researched these ordinances before passing them, and we feel comfortable and confident in our legal position.”
In December 2019, Wilson said 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 to the U.S. Constitution.
The attorney general’s office said it did not expect Columbia to comply with Wilson’s request to repeal the ordinances and has been preparing the lawsuit for the past three weeks.
One of the ordinances allows the city to confiscate guns from people who have Extreme Risk Protection Orders against them, the attorney general’s office said.
Another ordinance bans the possession of firearms within 1,000 feet of a public or private school, according to the release.
A third ordinance prohibits homemade firearms that have no serial number (known as ghost guns), it said in the release.
The attorney general said “the regulation of firearms is beyond the reach of a town, city, or county,” according to the release.
“The General Assembly, through state law, has reserved for itself the ability to protect its citizens’ Second Amendment rights. Therefore, the remedy for the City is to convince the Legislature to change the law, not to disregard it,” Wilson said in the release. “In this case, the Second Amendment is paramount and cannot be undercut.”
Devine said the ordinance on schools mirrors language in the federal Gun-Free School Zones Act of 1990, which similarly prohibits guns carried near school grounds.
The extreme risk ordinance, likewise, gives municipal courts powers similar to those used by probate courts when deciding whether to commit someone to a treatment or care facility, as a part of which guns can also be confiscated by police, Devine said.
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. U.S. Sen. Lindsey Graham, R-Seneca, has supported federal “red flag” legislation.
The ghost gun ordinance, which actually regulates the production of the guns as a public nuisance, is written in such a way as to avoid regulating the guns themselves. South Carolina does not have a state law regulating homemade firearms.
“That’s probably the most vague and up to interpretation,” Devine said. “If the court could give us some guidance on that... then we would respond accordingly.”
But a previous gun law in Columbia has been struck down.
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.
This story was originally published January 29, 2020 at 1:40 PM with the headline "Columbia sued for gun laws that SC Attorney General says undercut Second Amendment."
