South Carolina Criminal Defense Blog

The South Carolina Supreme Court issued its opinion today in State v. Bolin, and found that the underage possession of handgun statute is unconstitutional.

Leland Greeley, a criminal defense attorney in Rock Hill, argued on behalf of Bolin. There were two main arguments. First, because Bolin was old enough to be sui juris and the South Carolina Constitution, Art. I, § 20, grants him the right to bear arms, possession of a handgun could not be a crime. The Court held that his constitutional right to bear arms was not infringed upon because he was not prevented from possessing other types of guns, only handguns.

The second argument and the one the Court agreed with was that § 16-23-30's prohibition was unconstitutional because Art. XVII, § 14 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 until age twenty-one.

Because Art. XVII, § 14 specifically makes an exception only for the sale of alcoholic beverages for persons under 21, and does not state any other situation in which the legislature can restrict the rights of persons aged 18 - 20, the South Carolina Constitution does not permit the legislature to prohibit that age group's possession of handguns. The Court cites the canon of construction "expressio unius est exclusio alterius," to express or include one thing implies the exclusion of another, or of the alternative; and the Court cites the rule of statutory construction "when interpreting a statute, the words must be given their plain and ordinary meaning without resorting to subtle or forced construction which limit or expand the statute’s operation."

Since Bolin's arrest, and doubtless as a result of this case, the legislature has amended § 16-23-30 to make it illegal for any person under the age of 18 to possess a handgun. Bolin, however, has implications beyond underaged possession of handguns. If it is unconstitutional for the legislature to restrict the rights of individuals ages 18-20, other than to restrict the sale of alcoholic beverages to persons under 21, and if the words of Art. XVII, § 14 must be given their plain and ordinary meaning, then the constitutionality of of several other statutes are called into question as well:

SECTION 61-4-90. Transfer of beer or wine for underage person's consumption;
SECTION 61-6-4070. Transfer to person under the age of twenty-one years;
SECTION 61-6-4075. Purchase of alcoholic beverage for minor; and
SECTION 20-7-8920. Purchase, consumption or possession of beer or wine. (minor in possession statute)

The sale of alcoholic beverages is prohibited by § 61-4-50, Sales to underage persons, and this is expressly permitted by Art. XVII, § 14. But the prohibitions on the possession, purchase, consumption, or transfer of alcohol to persons ages 18-20 may be in violation of our state constitution.

It's been said over and again, if you're old enough to go to war, you're old enough to drink. And that right is arguably protected under the South Carolina Constitution.