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Ernie Otten’s First Sponsored Bill: Nullify Concealed Weapons Laws!

Oh joy. District 6 sends conservative Republican Ernie Otten to represent them in the Senate, and what's the first thing he does? Gets together with Rep. Lance Russell (R-30/Hot Springs) to write a gunslingers' bill.

Well, they didn't really write a bill; they just recycled (how green of you conservatives!) two bills that last year's Legislature made to nullify South Dakota's concealed weapons laws. Last year, Rep. Russell and some conservative pals tried to give pistol packers a pass with a bill that would have exempted all law-abiding citizens from our four primary concealed weapons laws. That bill died in committee. Then they tried to exempt any adult with a valid South Dakota driver's license. That bill made it to the Governor's desk, where Governor Daugaard vetoed it for conservative reasons, calling it a "solution searching for a problem."

Apparently Rep. Russell and Sen. Otten want to play this game again. Despite the fact that no one has demonstrated that South Dakota's concealed weapons laws (SDCL 22-14-9, 22-14.9.1, 22-14-9.2, and 22-14-10) have created any undue burden on our Second Amendment rights, the usual wingnuts feel we need to annul those laws, this time through House Bill 1010. The trick this time: Otten and Russell want to exempt from concealed weapons restrictions "any person who may legally possess a firearm under 18 U.S.C. § 922(g) (1-9)." That's the federal law that prohibits criminals, fugitives, drug users, the mentally disabled, illegal immigrants, folks here on non-immigrant visas, dishonorably discharged soldiers, folks who've renounced their U.S. citizenship, folks under certain court orders, and convicted domestic abusers from possessing firearms.

Read that bill carefully: conservatives Otten and Russell, whom I take it prefer states' rights on issues of their choosing, want federal law to take precedence over our state statutes on concealed weapons.

Ernie, Lance, let me ask you something: if you really think our concealed weapons laws are a hassle, why go through such contortions to undermine them? Why not just float a bill to repeal SDCL 22-14-9 through 22-14-10? Heck, why not just repeal all of Chapter 23-7, which requires among other things that you register with the sheriff and pay ten bucks for the pleasure of carrying your pistol in your pocket? Oh, the inhumanity!

Russell and Otten include another condition in HB 1010, saying that the police cannot stop and search you just because they see you have a pistol on you. Under that rule, if the police see me walking down the street with a pistol in my hand and a determined look in my eye, they cannot stop me and ask where I'm going with that peashooter.

Scared yet? You should be.

The no-search-no-detention clause is perhaps an effort to overcome Governor Daugaard's veto concern last year that the bill that reached his desk would have resulted in police detaining concealed weapons permit holders more frequently. However, the other conditions of the Governor's veto from last year are still strong enough to torpedo this bill.

Leave the concealed weapons laws alone, fellas. They work fine. Nullifying them puts us all at greater risk.


  1. jana 2013.01.07

    Let the craziness begin.

    How can we take the Republicans serious with characters like Otten and Hubble running the show?

    Seriously Lincoln County normal voted for Otten over Abdullah?

  2. Barry Smith 2013.01.07

    No surprise here . I am sure that the biggest concern in the Lennox, Tea and Harrisburg school districts is that concealed weapons should not need a permit. Not

    And Jana worse even they voted almost 2 to one for Otten over Schriever. So I guess it serves them right if for the next 2 years they get nothing but tin foil hat crap from their Senator.

  3. Charlie Johnson 2013.01.07

    Why not have a 1%(maximum) tax on all revenue from all sources from all individuals and ompanies? Why just from banks?

  4. jana 2013.01.07

    Meanwhile over at the alternate universe of SDWC. PP is apoplectic that able bodied businesses should receive government money instead of fending on their own.

    He asks "Should we be concerned at the notion that government is being viewed as the solution by state Republicans? Should we be concerned that the expansion of this entitlement program for able-bodied businesses will just put more people under government’s umbrella who should not be?"

    Wait...what? Oh, never mind...he was talking about Democrats proposing crazy notions like covering the working poor and impoverished who can't afford healthcare being included in Medicaid that we already pay for.

    Sorry, I misquoted him. Replace Republican with Democrats and business with people, then it is perfectly accurate.

  5. jana 2013.01.07

    Ernie may be in trouble with his own party as he neglected to include astrology in his writing of the new law.

    There was also nothing in there about open season on anyone suspected of providing a legal abortion unless it was a Christian girl who was a virgin and brutally raped...or something like that.

    But he's new at this, so we should cut him a little slack. But hey, it's early, so stay tuned.

  6. Elisa 2013.01.08

    For the most part, South Dakota regulations mirror that federal law already. Those in SD pay $10 for a four-year permit to carry a concealed weapon and have to pass a background check and meet specific guidelines -- this is nothing compared to other states where you have to pay $50 to $100 or more for a permit and take a gun safety course that costs another $100 or more.

  7. Rorschach 2013.01.08

    Just more solutions in search of a problem. I have my permit. Neither expensive nor burdensome.

    What we need though is government to cross check its database of concealed weapon permit holders against its database of people convicted of disqualifying crimes like domestic abuse, drug crimes, etc. during the 4-year term of the permit. Then revoke the permit and make people turn it in like a revoked license. I hope they already do this, but I don't know.

  8. Steve Sibson 2013.01.08

    This post is another plank of Cory's pro-tyranny political policies. And to think he is teaching kids.

  9. Charlie Johnson 2013.01.08

    My earlier post was intended to be posted with the discussion on the bank franchise tax.

  10. WayneB 2013.01.08

    Cory, it'd be better not to use Findlaw - their formatting leaves a LOT to be desired for readability.

    So the argument HB1010 proposes is anyone who can legally possess a firearm under 18 U.S.C. § 922(g) (1-9), can carry it concealed without a permit. I may be mistaken, but this is my interpretation:

    1) The Bill does not prevent police from stopping & detaining individuals who possess firearms (specifically handguns) with reasonable suspicion of a crime taking place.

    2) Your scenario of walking down the street with your gun drawn & a steely look on your face is a poor example - this legislation deals only with ~concealed~ handguns. If an officer saw you walking around with a gun drawn, you're likely to get confronted pretty quick (and the law allows that).

    3) The bill would prohibit police from detaining people found to be carrying a concealed handgun (yet lacking a permit) so long as possession of the concealed handgun would be the only reason for detainment. If the person is doing something else, detain away.

    My question would be, are the police allowed to detain the person to verify they are legally able to own a firearm under 18 U.S.C. § 922(g) (1-9)? If not, how can a peace officer comply with the law? If so, shouldn't the language of the bill state the peace officer has that ability to verify and then must immediately cease search/detention?

    At face, I don't see the harm of this bill.

  11. Richard Schriever 2013.01.08

    So, Wayne - where do you see a benefit?

  12. larry kurtz 2013.01.08

    "Believe it or not our numbers tomorrow show there's not a whole lot of support for putting more guns in schools."

    RT @ppppolls

  13. WayneB 2013.01.08

    That's a good question, Richard.

    I see a benefit in it positively affirms a generally law-abiding citizen to be more secure in his/her 2nd & 4th amendment rights. It also helps ensure a right to privacy, as we saw the Journal News decide to disregard.

  14. Richard Schriever 2013.01.08

    Ah - I see Waybe - so it's a good bill for political posturing then. I wonder when Ernie's gonna get arounf to addressing what he said was his number one priority during the campaign; JOBS? How does this bill address the jobs issue?

  15. caheidelberger Post author | 2013.01.09

    Wayne, if the police can tell I have a gun, it's not concealed. The bill is talking about my carrying a weapon in some way that is noticeable to the police. If I'm a cop standing on the corner on Main Street watching for trouble, I prioritize the people I want to talk to. The first people I talk to are people who are overtly breaking the law. The next people on my list are people walking around with a firearm. That's not tyranny; that's just sensible policing.

    If you carry a gun, you should expect everyone, not just police, to wonder what you're doing with that gun. Regular folks might be afraid to ask; police should be authorized to ask. This bill takes away that authorization, reducing the ability of police to stop gun crimes.

  16. WayneB 2013.01.09

    Cory, that's not how I interpret the bill... if we interpret it your way, then why have SDCL 22-14-9, 22-14.9.1, 22-14-9.2, and 22-14-10 on the books at all? Once a handgun is discovered, it is no longer concealed and therefore escapes the penalty?

    No, the conceal carry regulations only apply when a handgun is being deliberately concealed from view. It doesn't apply to open carry, but rather in circumstances of when police, in the course of their business, discover a concealed weapon - things like traffic stops.

    Should a police officer discover someone is concealing a handgun, the concealment of the handgun wouldn't be allowed as the sole purpose for further detainment/search. As long as we give police officers the tools to rapidly ensure the person with the weapon is legally able to have that weapon, and police don't suspect a crime is about to take place (this wouldn't be the time for your animated gestures), then there really shouldn't be a reason to further detain the individual.

    I like the billfrom the standpoint that if I'm traveling in my truck (no trunk to store a handgun), I wouldn't have to worry if I'm breaking the law by transporting my handgun in the glovebox (I've gotten different opinions from different officers).

    Simple possession wouldn't be enough to warrant detainment. Other circumstances would (the smell of alcohol, excitable behavior, etc.). Now, where I'm not clear, as I expressed above, is whether the police officer has the ability to run that NICS background check in the field in a timely fashion. If he cannot, then I don't see how the bill can function - I, like you, want to make sure our police have the ability to detain people who cannot legally possess any firearm... but why should they detain someone who is in good standing of the law yet chooses to carry a firearm concealed, with or without a permit?

  17. Steve Sibson 2013.01.09

    "If you carry a gun, you should expect everyone, not just police, to wonder what you're doing with that gun."

    The answer: "Second Amendment", something the public schools don't teach, but instead undermine. Remember Sandy Hook was a "gun-free zone". Did the police ask the shooter what he was doing with a gun? Did the unarmed principle?

  18. Barry Smith 2013.01.09

    This is one instance that I agree with Sibby. It would help develop student's critical thinking skills, as they debated whether as a nation the second amendment has been a positive part of our Constitution.

  19. Barry Smith 2013.01.09

    Above post referring only to the teaching of the second amendment in schools.

  20. Eve Fisher 2013.01.09

    I remember that before he got to Sandy Hook, the shooter got his guns from his mother, who legally purchased all the weapons, practiced shooting them regularly, and did everything right, according to the 2nd Amendment and the NRA. Then her son shot her in her sleep and went off to shoot up the school. How this scenario turns into parable about how we need to arm everyone, I do not know, except that certain people have made the 2nd Amendment the most important amendment in the Constitution. (I wait, with bated breath, for Mr. Sibson, for example, to support freedom of religion, speech, and press, with the same passion he brings to the right to bear arms.) I also know that every law enforcement officer I have talked to (and I know quite a few - I used to work for the SD judicial system) wants as few concealed weapons as possible and no assault weapons in the hands of the public. And, finally, if you really think that your arsenal of guns and assault weapons will indeed enable you to overthrow a tyrannical government (I've been told a lot lately that this is the sacred purpose of the 2nd Amendment), let me remind you that our military has drones. Good luck with that.

  21. Steve Sibson 2013.01.09

    "(I wait, with bated breath, for Mr. Sibson, for example, to support freedom of religion, speech, and press, with the same passion he brings to the right to bear arms.)"

    I support them all. I also support the Constitution's process for amendment, the gun control tyrants do not as they had banned guns at Sandy Hook (a direct act of disobedience to the Second Amendment). Eve, your position on guns lines up well with Hitler's. How many millions were slaughtered in his gas chambers? How many of those were kids?

  22. Richard Schriever 2013.01.09

    Steve - what were the economic conditions imposed on Germany post WW1 that set the stage for the rise to power for someone of Hitler's ilk? Hint - it has to do with an emphasis on paying down debt.

  23. Eve Fisher 2013.01.09

    Mr. Sibson, please see my response on the other line of discussion. If you think that banning assault weapons = Hitler, there is no discussion possible. You are living in an alternate universe. If you continue to refuse to recognize the opinions and rights of the majority - which does not believe that arming everyone with assault weapons will make us safer - then not only are you not living in a democracy, but you do not want to live in a democracy. Apparently, you want your way. Period. Only in your universe does that work.

  24. Steve Sibson 2013.01.09

    "If you continue to refuse to recognize the opinions and rights of the majority"

    So the Constitution is obsolete along with minority rights. Ignore Nazi Germany. It never happened, so go ahead and set up the same system of government in America. Right Eve?

  25. LK 2013.01.09


    Your comment "The answer: "Second Amendment", something the public schools don't teach, but instead undermine" reminds me that I am having students discuss passages from the Bible for the next few days. Haven't you asserted that schools forbid Bible reading too? You can drop in on class if you like.

  26. Steve Sibson 2013.01.09

    LK, be careful, if the ACLU finds out you will be in court. Just because it is forbidden, does not mean everyone obeys. Kind of like gun bans at school.

  27. caheidelberger Post author | 2013.01.10

    Wayne, even though the bill aims at the concealed weapons statutes, the search-and-seizure clause covers all weapons carried, concealed or not. HB 1010 says the sheriff sees Adam Lanza walking toward a school carrying guns and the sheriff can't stop Lanza and ask him what's up.

  28. Steve Sibson 2013.01.10

    Cory, the police did not see Lanza walking up to schools with guns. They arrived after he killed 26. It is a violation of the Second Amendment to force law-abiding school employees to not retain their right to defend themselves and their community.

  29. larry kurtz 2013.01.10

    Cory, the police did not see Lanza walking up to schools with cannabis. They arrived after he smoked 26 grams. It is a violation of the First Amendment to force law-abiding school employees to not retain their right to defend thand their health and community.

  30. WayneB 2013.01.10

    "The mere possession or carrying of a pistol or revolver without a permit does not constitute grounds for an agent of the state, county, municipality, or township to conduct any search, seizure, or detainment, no matter how temporary, of an otherwise law-abiding person."

    Read it in its entirety, Cory - the carrying or possession of a handgun without a permit cannot be the sole purpose for detainment/ search/ seizure. It's clearly talking about concealed weapons discovered without the concealer having a permit.

    However, even if I accept your interpetation that it includes all pistols seen or unseen, "mere possession" looks to me as though it gives officers a lot of room to do their job.

    Could they detain Adam Lanza for merely possessing a pistol without a Concealed Carry Permit? Nope. But they sure could detain him for suspicious behavior. Walking towards a school armed to the hilt is more than enough for a reasonable person to say it warrants a stop.

    Nothing prohibits a Terry Stop (Terry v Ohio - held that police may briefly detain a person who they reasonably suspect has been, is involved, or is about to commit criminal activity).

    From Terry v. Ohio - To have reasonable suspicion that would justify a stop, police must be able to point to “specific and articulable facts” that would indicate to a reasonable person that a crime has been, is being, or is about to be committed.

    Under HB1010, mere possession wouldn't be enough, but United States v. Cortez & Terry v. Ohio combine to allow peace officers to consider the totality of circumstances.

  31. caheidelberger Post author | 2013.01.10

    The context does point us toward the concealed weapons statutes, but the language of the bill raises a barrier to the police stopping any individual carrying a gun, poorly concealed or openly.

    Let's look at the words again: "The mere possession or carrying of a pistol or revolver without a permit does not constitute grounds for an agent of the state, county, municipality, or township to conduct any search, seizure, or detainment, no matter how temporary, of an otherwise law-abiding person."

    Now, imagine I'm a cop. I see two people walking down Main Street. The only major visible difference is that one has a shotgun over his shoulder. I want to talk to shotgun dude before I talk to the other dude. My law enforcement spidey-sense says, "Go talk to that guy, see what he's up to, make sure there's no trouble coming." I don't need to frisk him; I just want to walk up and say, "Hi, how you doing, where you going with that shotgun?"

    HB 1010 says I can't make even that temporary detainment. Guy has a firearm, doesn't have a permit... he's covered by this law. The police can't do what I will argue is their job to investigate obvious hazards. I will argue that walking down Main Street with a gun is suspicious behavior by itself, without any need for appeal to any larger totality of circumstances. Anyone so armed in public should expect a question or two from the police.

  32. WayneB 2013.01.10

    Cory, again... bad example.

    Read. The. Bill.

    The bill says specifically pistol or revolver. It does not say firearm. A shotgun is neither a pistol nor a revolver, therefore HB 1010 wouldn't apply. Neither is a Colt Bushmaster. Neither is my dad's old .22 repeater.

    Nothing prevents a police officer from executing his duty to protect and serve - it just instructs him not to stop / detain an otherwise law-abiding citizen who happens to have a concealed handgun on his/her person without a CCW permit. Terry v. Ohio still gives wide berth for our law enforcement to use their judgement for when a stop / detainment/ search is warranted. HB 1010 would just prevent police from using the penalties of carrying a handgun concealed without a permit as a reason for detainment. Nothing more. "Mere possession" is a pretty light threshold to cross.

    I'm satisfied our law enforcement officers are capable of finding reasons to stop / detain folks they feel are about to commit a crime (or have been part of one). The body of case law, and SDCL certainly allows them plenty of leeway to do their jobs.

  33. caheidelberger Post author | 2013.01.11

    Mea culpa—revise my example to say pistol or revolver. The example still stands. HB 1010 stops a police officer from doing his duty, because he cannot use his notice of a pistol or revolver as reason to stop and question an individual. The concealed weapon permit requirement is irrelevant based on how this statute is written. "Mere possession" is a sufficient threshold to cross when we're talking about a deadly weapon.

    If HB 1010, we can only hope that police spotting folks with handguns on the street will be willing to stop and ask those folks questions anyway, regardless of the fact that if the stop results in legal action, HB 1010 will require that the courts throw out any evidence obtained through the stop motivated by the sight of that handgun. But there is no compelling reason to take this search justification away from police. If you are in public and you carry a gun, your behavior is a public concern, and I want my police to stop you and find out why you're packing. And if you're going to conceal that weapon, I want you at the very least to have to interact with law enforcement first, to pay your fee and get your permit.

  34. WayneB 2013.01.11

    Rember, though, to openly carry a revolver or pistol on your person is not a crime in SD. You wear it holstered just as a peace officer does, and you're free to go just about anywhere (except schools, bars, universities, and most public buildings).

    HB 1010 will not require throwing out of any evidence obtained.


    Judge Tucker: Sheriff Hartman, why did you initiate a stop with the defendant?

    Sheriff Hartman: Well, your Honor, Mr. Heidelberger was walking downtown with a colt .45 on his person. I saw it concealed under his jacket.

    Judge Tucker: Is that the only reason you stopped him?

    Sheriff Hartman: No, your Honor. He was arguing with someone quite heatedly, waving his arms all about. That's how I happened to see the pistol. I figured I better make sure all was well...


    Justice Warren (again, Terry v. Ohio) made it clear that even the most innocuous observations can be used for a stop. HB 1010 gives our peace officers direction that, should nothing else be amiss, they do not need to further detain someone for merely possessing a concealed handgun without a permit.

  35. larry kurtz 2013.01.11

    "The 1919 measure was passed immediately after Germany lost World War I and well before Hitler came to power in 1933. Hitler, then, came into power when this regulation was in effect … so, yes, Hitler, by default, did have a gun control policy — but only because it was forced on Germany. Remember how the Hitler Youth were trained to march not with rifles but with shovels? This was a result of the Treaty of Versailles, not a Hitler policy."

  36. caheidelberger Post author | 2013.01.12

    Love those links, guys! Alex Seitz-Wald at Salon goes there, too. It turns out Hitler actually loosened gun control laws compared to what the Weimar Republic practiced (in accord, as Larry duly notes, with the requirements of the Treaty of Versailles). So now we can argue that the folks who want to loosen gun rules are the ones behaving like Hitler, right? Right?!

  37. caheidelberger Post author | 2013.01.12

    Carrying a pistol openly is perfectly legal. So is having a heated argument. I would contend that either condition in isolation is enough for Sheriff Hartmann (wait, he retired last month! now it's Sheriff Walburg!) to approach me and ask a question or two to make sure everything is cool. HB 1010 makes clear that Sheriff Walburg can't do that based on the sight of my pistol, and that weakens his ability to do preventative law enforcement.

  38. Woody W 2013.04.16

    I am for this bill. Of all the Amendments, none are more clear and straight-forward than the 2nd "...the right of the people to keep and bear Arms, shall not be infringed." Criminals do not heed laws, therefore, any legislation re: firearms are infringements, and are aimed at law abiding citizens. Schools should teach firearms safety and respect instead of demonizing gun owners.

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