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Are mask mandates legal in South Carolina?

South Carolina Attorney General Alan Wilson says mandates from cities and municipals requiring face masks are legal.

COLUMBIA, S.C. — The state's chief law officer has determined it is legal for towns and cities to have ordinances requiring people to wear masks during a public health emergency.

Many people in the Midlands, South Carolina and across the country have debated whether or not cities, towns or states have the right to require people to wear face coverings.

Recently the City of Columbia and Greenville became the first cities in the Palmetto State to pass mandates requiring the wearing of a face mask or covering. .

"The fact that we're saying that the law is not prohibitive by the constitution doesn't mean we're endorsing the ordinance, doesn't mean we're supportive of it," said South Carolina Attorney General Alan Wilson. "We're not against it. We're not for it. We're just telling you what the law says.That's all it is. We're just calling balls and strikes."

The state's chief law officer says his office has determined it's legal. 

Wilson says they used the same legal analysis that they used when they decided to sue the City of Columbia on gun ordinances back in January of this year.

"A city or municipality under Home Rule, which is a doctrine enshrined in our constitution and state laws, is allowed to pass emergency measures like this unless it is preemptive or prohibited by state or federal law or state or federal constitution," explained Wilson.

"There was an issue a few weeks ago regarding the stay at home orders that many cities and municipalities were passing. The Governor had already occupied that area with a state executive order and under state law when the Governor occupies that area, cities and counties cannot superimpose their emergency orders on top of the Governor's."

With the ordinances being a result of a public health emergency, Wilson says they're legal. Wilson says this is similar to when the City of Columbia issued an emergency curfew due to riots in the downtown area a few weeks ago.

The face masks ordinance would become illegal if it violates constitutional rights or is arbitrary.

"Let's pretend there was no pandemic, there was no COVID-19 but city leaders said, 'You know what, we want people to start wearing facial coverings or we want people to wear a blue shirt on Wednesdays,' that is arbitrary. That is capricious. You can't just force people to do things or stay in places that they don't won't to be or stay just because of that. But when it's tied to a riot, a fire, a hurricane, a public health emergency, they have those limited authorities."

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Some people have asked if the ordinance violates the constitutional right to carry a gun if you're wearing a mask.

"We can find no prohibition on the carrying of a firearm if you're lawfully allowed to do so under the CWP law. Also you have a Second Amendment right and a state law that allows you to have a CWP which trumps a city ordinance so there's no conflict there. This ordinance doesn't prohibit you from carrying a firearm. This mandates that you wear a facial covering or mask in certain businesses. There is no constitutional crisis there with the Second Amendment and if there was, I'd promise you I would jump into it and I would defend anyone's right to be able to lawfully carry a gun."

Wilson also mentioned a law that was more than 50 years ago about the prohibition of wearing a mask in public.

"That law from 1962 was passed to prevent members of the Ku Klux Klan from concealing their identity by wearing masks while they committed illicit, criminal or even terrorist type actions in the communities.  That's what it was addressed to deal with. But within that law, there is an exception for public emergencies, for public health emergencies or any emergency for that matter in wearing a mask."

The state's chief law officer says the two ordinances are different things and one doesn't violate the other.

If you don't like the ordinance, Wilson says the solution is not a legal remedy, but a political one.

"You can vote with your feet. You can go across the river and eat. You can vote at the ballot box in November. You can write letters. You can get on social media as people love to do. Those are things that you can do. But asking me to file a lawsuit when I don't have the authority to at this time is not a remedy available to us right now."

Wilson says if the ordinances become unlawful, his office will look into the matter. He says people can contact his office if they find the ordinance is unconstitutional.

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