January 24, 1994

The Honorable Joyce Hazeltine
Secretary of State
500 East Capitol Avenue
Pierre, SD 57501

OFFICIAL OPINION NO. 94-01

Status of South Dakota's concealed weapons permit under the federal "Brady Bill"

Dear Ms. Hazeltine:

You have requested an official opinion from this Office based on the following factual situation:

FACTS:

SDCL 23-7-7.1 allows the issuance of a concealed weapon permit following a background check of various factors regarding the applicant. SDCL 23-7-9 allows the purchaser of a pistol who has in his possession a valid concealed weapon permit to be exempt from South Dakota's current 48-hour waiting period for the purchase of a pistol. Section 102(a)(1)(C) of the federal "Brady Handgun Violence Prevention Act" ("Brady Bill") exempts holders of valid state permits issued within the last five years from its five-day waiting period for the purchase of a handgun. Based on the above facts, you have asked the following question:

QUESTION:

Does South Dakota's pistol permit meet the requirements of the exemption mentioned in the above section of the Brady Bill?

IN RE QUESTION:

Congress recently enacted the "Brady Handgun Violence Prevention Act." The general provisions of this act make it unlawful for any licensed importer, manufacturer or dealer of weapons to sell, deliver or transfer a handgun unless certain enumerated conditions are met. Section 102(a)(1)(A). Section 102(a)(1)(C) provides one method of meeting the requirements of the bill when:

(i) the transferee has presented to the transferor a permit that--

(I) allows the transferee to possess or acquire a handgun; and

(II) was issued not more than 5 years earlier by the State in which the transfer is to take place; and

(ii) the law of the State provides that such a permit is to be issued only after an authorized government official has verified that the information available to such official does not indicate that possession of a handgun by the transferee would be in violation of the law;

In South Dakota, under the provisions of SDCL ch. 23-7 a permit to carry a concealed pistol may be issued within five days after application, if certain requirements listed in SDCL 23-7-7.1 are met. If these requirements are met, the permit is issued by the sheriff of the county or the chief of police of the municipality in which the applicant resides. SDCL 23-7-7. Under former law, this permit had been valid for four years under SDCL 23-7-8.2, but in 1993 an amendment changed the period for which the permit is valid to eight years.

SDCL 23-7-9 requires sellers to wait forty-eight hours from the time of the sale of a pistol before delivering it. However, any person who has in his possession a valid permit to carry a concealed weapon is exempted from that 48-hour waiting period. It is my opinion that the provisions of SDCL ch. 23-7 satisfy the requirement of Section 102(a)(1)(C) of the Brady Bill. Therefore, if a transferee presents a valid South Dakota concealed pistol permit issued within the last five years, the provisions of Section 102(a)(1)(A) of the Brady Bill, which include a five-day waiting period, will not be applicable. It should be noted, however, that since South Dakota permits were only valid for four years until the recent amendment in 1993, a South Dakota permit issued more than four years ago and not renewed would no longer be valid. The previous South Dakota four-year period presents no actual conflict with the federal five-year period, however.

MWB:PJF:nan