The right to bear arms in South Dakota is found in both the federal and state constitutions.  

Under the 2nd Amendment to the United States Constitution, the “right of the people to keep and bear Arms shall not be infringed.”  The United States Supreme Court has held that this right is not absolute.  For example, the right may be denied to certain convicted felons, the mentally ill, persons subject to domestic violence protections orders, and perhaps other categories of “dangerous” persons yet to evolve.  The right may be geographically restricted for “sensitive locations” such as schools, government buildings, and mass transit venues.  Also, a prohibition may extend to certain types of weapons, such as those considered “dangerous and unusual weapons” or “not in common use for lawful purposes.”  The boundaries of this latter exception have yet to be fully developed.   

The analogous South Dakota Constitutional provision states: “The right of the citizens to bear arms in defense of themselves and the state shall not be denied.”  In one sense, this protection is narrower than its federal counterpart, in that it only applies to “citizens,” and not “the people.”  Thus, non-citizens in South Dakota may have a federal – but not state – constitutional right to bear arms.  

It is theoretically possible that the South Dakota Constitutional right may afford greater protection than the federal 2nd Amendment right in other respects.  The South Dakota Supreme Court has stated, “The provisions of South Dakota’s Constitution have legal force apart from the federal constitution.”  But, when given the opportunity to grant broader protection in a case involving the 1st Amendment right of free speech, our high Court declined to do so.  GILBERT v. FLANDREAU SANTEE SIOUX TRIBE, 725 N.W.2d 249 (S.D. 2006).  In that case, the Court stated, “we find no indication that the framers intended to provide more expansive protection through South Dakota’s Bill of Rights than that provided by the First Amendment of the United States Constitution.”  

To date, we have not seen a case involving the potential differences between the U.S. 2nd Amendment and the SD Constitutional right to bear arms.  It remains possible that our state’s constitutional protection may be interpreted more broadly than what is granted at the federal level.

Note: The author would like to acknowledge Patrick Garry and Tyler Moore, Professors of Constitutional Law at USD Knudson School of Law, for their assistance in the preparation of this week’s column.  

Anyone desiring to communicate with the Author, may do so by sending an e-mail to the author at rogermbaron@gmail.com