IN THE STATE OF SOUTH CAROLINA
In The Supreme Court

APPEAL FROM YORK COUNTY
Court of General Sessions

John C. Hayes, III, Circuit Court Judge

Case No. 2006-GS-46-1601

State of South Carolina, . . . . . . . . . . …………………. . . . . . . . . . .Appellant,

v.

        Berry Scott Bolin. . . . . . . . . . .  . .  .  . . . . . . . .. . . ... . . . . . . . . . . . Respondent.

BRIEF OF RESPONDENT

Rock Hill, South Carolina
June 29, 2007

TABLE OF CONTENTS

TABLE OF AUTHORITIES
Cases

Statutes and Constitutional Provisions

ISSUE ON APPEAL

Whether the trial court erred in quashing the indictment for Possession of a Handgun While Under the Age of 21 on the ground that the criminal statute making such possession illegal is unconstitutional.

STATEMENT OF THE CASE

Respondent agrees with the statement of the case provided in Appellant’s Initial Brief.

STATEMENT OF THE FACTS

Respondent agrees with the statement of the facts provided in Appellant’s Initial Brief.

ARGUMENT

Section 16-23-30, Code of Laws of South Carolina, subsection (B) creates a statutory criminal offense for anyone under the age of 21 to possess of pistol.   That section of the statute is unconstitutional.  The trial court did not err in finding this part of the statute unconstitutional and was correct in its quashing of indictment 2006-GS-46-1601 which alleged Mr. Bolin, 19 years of age at the time of the incident, guilty of the provision.

Statutes are to be construed in favor of constitutionality, and a legislative act is to be presumed constitutionally valid unless a clear showing to the contrary is made. State v. Brown, 317 S.C. 55, 451 S.E.2d 888 (1994). A legislative enactment will be declared unconstitutional only when its invalidity appears so clearly as to leave no room for reasonable doubt that it violates some provision of the Constitution.  Westvaco Corp. v. South Carolina Dep't of Revenue, 321 S.C. 59, 467 S.E.2d 739 (1995). See, State v. Kenneth Curtis, 356 S.C. 622, 591 S.E.2d 600 (2004).

In this particular case, there is no room for reasonable doubt that the statute in question is constitutionally invalid.

The Constitution for the State of South Carolina provides in Article I, Section 20: 

A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.  As, in times of peace, armies are dangerous to liberty, they shall not be maintained without the consent of the General Assembly.  The military power of the State shall always be held in subordination to the civil authority and be governed by it.  No soldier shall in time of peace be quartered in any house without the consent of the owner nor in time of war but in the manner prescribed by law.

This right is one that is cherished in this State.  Most recently the right is referenced as one of the basis for the Protection of Persons and Property Act which took affect in South Carolina in June of 2006.   See Section 16-11-410, et seq., Code of Laws of South Carolina, (1976), as amended.  The law states:  “The General Assembly finds that Section 10, Article I of the South Carolina Constitution guarantees the right of the people to bear arms, and this right shall not be infringed.”  Section 16-11-420(C). 

Further, Article XVII, Section 14 of the Constitution for the State of South Carolina provides:

Every citizen who is eighteen years of age or older, not laboring under disabilities prescribed in this Constitution or otherwise established by law, shall be deemed sui juris and endowed with full legal rights and responsibilities, provided, that the General Assembly may restrict the sale of alcoholic beverages to persons under age twenty-one.

Passage of Section 16-23-30 (B) referencing (A)(3) was a mere statutory stripping of a constitutional right to bear arms by all citizens who are between the initial age of sui juris (18 years of age) and 21 years of age.  At the time of the allegation, the Defendant was 19 years of age, thus of age to constitutionally bear arms. 

To further support the unconstitutionality of the statute, the State of South Carolina in the past decided to put another age restriction on the legality of alcohol sales to persons under twenty-one years of age.  In so doing, the State recognized the impact of Section 14 of Article XVII and thus amended that particular section to allow the General Assembly to statutorily address the sale of alcohol.  No such amendment dealing with the bearing of arms has ever been passed.

The State presents two primary arguments for the constitutionality of the statute.  First, “putting aside for the moment the state constitutional provision as to age”, the State makes an argument based on the State’s police power.  Respondent agrees that there are times when activities may be restricted by legislation with the use of the State’s police power.  Respondent submits when such is lawfully done, the emphasis is on the activity, and the restrictions apply to all citizens alike.  In the two Johnson cases cited by the State, this is what was involved.  In State v. Johnson, 16 S.C. 187, 1881 W.L. 5959 (S.C. 1881), the restriction in issue involved guns and dealt with the carrying of those guns in a concealed fashion by the citizenry.  Thus, it was the act of concealing a weapon that was addressed.  Likewise, in State v. Johnson, 56 S.E. 544, (1907), the activity was discharging a gun in within the city limits of Charleston, and was applicable in general to the citizenry.

The fact the State set aside the aspect of “age” in this argument is telling.  When age is set aside, the emphasis is on the activity.  However, the statute in issue in this matter is not a restriction on actions regarding guns and the general citizenry, but a limitation placed on a singled out group of citizenry, the only common characteristic being age. It is the emphasis on this single defining characteristic which makes this statute unconstitutional. 

The second argument made by the State is one of the historical origin of the constitutional provision granting sui juris to all person 18 years of age and older.  The State comes close to making an apology for the passing of this provision. It also implies that although the provision is one which reads of overall application to legal rights and abilities of person 18 years of age or older, it was only passed for the purpose of voting, and thus, this Court should not be concerned regulating and limiting other activities because of age. 

The State contends that the prohibition against possession of a pistol by one who is younger than 21 is reasonably related to legitimate government interests.  It may very well be.  But that is not sufficient to strike down a constitutional right. Although the State concedes that “the state constitution is a limitation upon, and not a grant of power General Assembly”, Duncan v. York County, 267 S.C. 327, 228 S.E. 2d 92 (1976), the bottom line of its argument is that all constitutional rights become subject to whatever is determined to be reasonably related to legitimate government interests.  In this particular case, the provision in question does no restrict actual activity or behavior with a gun.  It restricts a group of people.

Finally, the State makes a third argument that the “disability” provision in the Constitutional provision allows for the statute to be past with age being the disability.  There is absolutely no logic whatsoever in such an argument for it leaves the State contending that the disability under which the statute may be passed, that being “age”, is the same substantive provision that grants that sui juris status in the first place, “age.”

This Court can find the single provision unconstitutional without doing harm to the remainder of the statute.  It is not necessary for the entire statute to be found unconstitutional.  The Court addressed severability in Joytime Distribs. & Amusement Co. v. State, 338 S.C. 634, 528 S.E.2d 647, 654 (1999), stating:

The test for severability is whether the constitutional portion of the statute remains complete in itself, wholly independent of that which is rejected, and is of such a character that it may fairly be presumed that the legislature would have passed it independent of that which conflicts with the constitution. "When the residue of an Act, sans that portion found to be unconstitutional, is capable of being executed in accordance with the Legislative intent, independent of the rejected portion, the Act as a whole should not be stricken as being in violation of a Constitutional Provision."

Thus, only the specific provision of this statute is unconstitutional. 

CONCLUSION

Based on the foregoing, because the statute restricts not an activity of the general citizenry, but merely restricts a group of people with the common characteristic of age,  it does not survive the strict scrutiny analysis this Court is to use.  The statute intrudes on the constitutional right of that group to “bear arms” in a consistent manner as the remainder of the citizenry.  Therefore, the ruling of the trial court quashing the indictment is a correct ruling and should be affirmed by this Court.

Leland B. Greeley 128 East Main Street, Suite 102 Post Office Box 2981 Rock Hill, South Carolina 29732 (803) 329-0088 Attorney for Respondent

June 29, 2007