Background on the South Dakota misdemeanor gun ban 

Senate Bill 43 has been introduced to revise the criminal code, including the state firearms laws.  Along with numerous up-dates and minor changes to the existing language, Sen. Lee Schoenbeck and others have inserted a "domestic violence” misdemeanor gun ban as section 269 of SB 43. 

Proponents of the Schoenbeck ban claim that the BATF generally waives the federal life-time ban and allows someone to have a gun again if that person has been subjected to a shorter state-level ban.  But there is nothing in federal law that would require the ATF to do so, and proponents have not produced one single specific case, either in this state or in any other, where anyone has had their gun rights restored because of a state ban. 

The ATF does consider firearms rights to be restored if the original “domestic violence” misdemeanor conviction has been pardoned by the president or governor, if the conviction has been set aside or expunged, or if the rights to vote, sit on a jury or hold elective office have been taken away as a result of the conviction and then restored.  However, none of these has anything to do with a separate state-level ban. 

The argument has been made that Federal officials will consider a one-year gun ban to be a loss and restoration of civil rights, pursuant to 18 USC 921 (a) (33) (B) (ii). However, this argument appears to be poorly founded.

The BATF does not include gun rights among the civil rights listed in their position papers and other documents on the subject of relief from federal firearms prohibitions. In fact, in the BATF memo used by proponents to support the state-level ban, BATF Firearms Programs Division Chief does not refer to gun rights, but to “firearms privileges.” So while we certainly believe that the right to bear arms should be included among our civil rights, it appears that the BATF may not.

Furthermore, we are all aware that the concept of the right to bear arms as an individual right is under attack in court rooms across America.  Clearly, the argument that gun rights are indeed a civil right is being questioned in the Federal courts.

There is also one other avenue in federal law for restoring gun rights. 18 USC 925 (c) states that anyone subject to any federal gun ban may apply to the ATF for relief.  However, every year since 1992 through fiscal year 2005, Congress has passed an appropriations rider prohibiting the ATF from expending any funds to investigate or act upon any such applications. 

The answer to bad federal law is not to duplicate it in state law.  Such a state-level ban would be of very dubious benefit to the gun owners of the state.  It would, however, create new penalties in addition to those which now exist on the federal level.  If it is passed in South Dakota, a person could be convicted under both state and federal law and suffer double the penalty. 

The Schoenbeck gun ban would also undermine efforts to repeal the current federal ban.  Gun owners across the nation are uniting in this growing national movement, but gun control proponents are countering this effort by working to ratify the Lautenberg gun ban state by state .  We must not allow this unconstitutional federal law to be further entrenched by writing it into the laws of South Dakota.