Does South Carolina DSS's regulation requiring foster parents to keep firearms inoperable and locked away violate the Second Amendment?

Plain-English summary

Representative Doug Gilliam asked the AG to evaluate the South Carolina DSS regulation governing firearms in foster homes (SCDSS Regulation 114-550(N)) plus related provisions in DSS's 2009 Policy and Procedure Manual. The regulation says foster parents must keep firearms (along with air guns, BB guns, slingshots, and similar weapons) "in an inoperative condition in a locked area inaccessible to children," with ammunition stored separately and locked. There is a narrow exemption for law enforcement officers who can document a job requirement to have ready access.

The AG, signed by Solicitor General Emeritus Robert D. Cook, concluded that a court would probably find the regulation unconstitutional. The reasoning chains together three U.S. Supreme Court cases:

• District of Columbia v. Heller (2008) struck down D.C.'s requirement that home firearms be kept "unloaded and dissembled or bound by a trigger lock" because it "makes it impossible for citizens to use [firearms] for the core lawful purpose of self-defense."
• McDonald v. City of Chicago (2010) incorporated Heller against the states.
• New York State Rifle and Pistol Association v. Bruen (2022) replaced the means-end balancing test with a historical-tradition test: a modern firearm regulation is constitutional only if the government can point to a historical analogue.

The AG found no historical tradition of requiring foster parents (or anyone in their own home) to dismantle firearms. The "sensitive places" doctrine the Court left open in Heller and Bruen does not extend to private homes, foster or otherwise; the home is exactly where Heller said the right to self-defense is "most acute." United States v. Rahimi (2024), which upheld a federal disarmament statute applied to people subject to domestic-violence restraining orders, did not change the analysis because Rahimi requires a judicial finding that the person poses a credible threat, and a foster parent without that finding cannot be analogized to the Rahimi class.

The federal Western District of Michigan reached the same conclusion in Johnson v. Lyon, 406 F. Supp. 3d 651 (2018), refusing to dismiss a § 1983 challenge to Michigan Rule 415, the equivalent storage rule there.

The AG also flagged a state-law issue: under South Carolina law, an administrative regulation must be reasonably related to the agency's enabling legislation and cannot alter or add to a statute. The AG did not find statutory support for SCDSS to require foster-home firearm storage. That is a separate ground for invalidity, distinct from the Second Amendment one.

The AG was careful to note that only a court can actually invalidate the regulation; until then, foster parents subject to it are still subject to it.

What this means for you

Foster parents and prospective foster parents

This is an AG opinion, not a court order. The DSS regulation remains in force unless and until a court rules otherwise. If you are negotiating compliance issues with a caseworker or licensing inspector, this opinion gives you a strong constitutional argument and a published statement from the state's chief legal officer. But operating in defiance of the regulation right now risks loss of your license or pending placement, so the prudent path is to comply while the constitutional question gets litigated.

If you want to challenge the regulation, you have two options: a state-court declaratory judgment action under South Carolina law, or a federal § 1983 action like Johnson v. Lyon under the Second Amendment. The Michigan plaintiffs in Johnson got past a motion to dismiss, which means you have a published federal opinion treating the same kind of rule as a viable Second Amendment claim. Talk to a Second Amendment lawyer who handles state regulatory challenges.

If you are mid-application or mid-licensing and the firearm storage requirement is the only obstacle, ask your DSS contact in writing whether a less restrictive alternative is acceptable: a quick-access biometric safe in your bedroom, for example, that keeps the firearm inaccessible to children but lets you use it for self-defense in seconds. The regulation's text requires "inoperative" storage, but the law-enforcement exemption shows DSS has accepted safety plans before; a safety plan that secures from children but preserves immediate self-defense access is the natural compromise.

DSS caseworkers and licensing staff

You are still bound by the regulation. The AG opinion changes the legal landscape without changing your operational rules. If you receive an inquiry from a foster parent or applicant referencing this opinion, route it to DSS legal counsel rather than improvising a response. Document any disagreement in the case file in case the regulation gets challenged later.

Foster care attorneys

This opinion is well-cited Second Amendment material if you litigate or counsel on the issue. The reliance on Bruen plus the federal district court's analysis in Johnson v. Lyon is the strongest argument available. Note the AG's careful structure: the Bruen historical-tradition test, with the home-not-sensitive-place argument, with the rejection of the under-21-purchase analogy from National Rifle Association v. ATF, 700 F.3d 185 (5th Cir. 2012), and the Rahimi distinction.

State legislators

If the regulation is constitutionally vulnerable, the legislature may want to either (1) repeal or narrow the regulation through agency-rulemaking direction, (2) write a statute that imposes a less restrictive child-access regime that could survive Bruen (for example, an obligation to use a quick-access safe rather than a fully dismantled-firearm rule), or (3) leave it to litigation. The AG's opinion is a strong signal that the current regulation will not survive challenge.

Legal counsel for SCDSS

If a constitutional challenge is filed, the agency will need to defend on either (a) historical tradition supporting child-access firearm regulations of similar scope, or (b) an argument that foster homes are categorically different from other homes for Second Amendment purposes. The AG opinion notes that Johnson v. Lyon already rejected the "foster home as sensitive place" argument. The under-21-purchase precedent is similarly weak. The strongest available defense is probably a less-burdensome reformulation of the rule that keeps the safety goal but preserves self-defense access.

Common questions

Q: Does this AG opinion strike down the SCDSS regulation?
A: No. AG opinions are persuasive, not binding. The regulation remains in force until a court invalidates it.

Q: What does SCDSS Regulation 114-550(N) require?
A: It requires firearms, air guns, BB guns, hunting slingshots, and other projectile weapons to be stored in an inoperative condition in a locked area inaccessible to children, with ammunition stored separately and locked. There's a narrow exemption for law enforcement officers who can document the need for ready access and adopt an agency-approved safety plan.

Q: What did the U.S. Supreme Court hold in Bruen?
A: That a modern firearm regulation must be consistent with the nation's historical tradition of firearm regulation. The government has to identify a relevantly similar historical analogue. Means-end balancing tests are out.

Q: Is a foster home a "sensitive place" where firearms can be regulated more strictly?
A: According to Johnson v. Lyon, no. Heller said the home is where the self-defense right is "most acute," and Nordyke v. King defines "sensitive places" as those where great numbers of defenseless people congregate, like schools and government buildings. A foster home is a home, not a public space.

Q: Does Rahimi support disarmament regulations like this one?
A: No. Rahimi upheld 18 U.S.C. § 922(g)(8) only because that statute applies after a judicial finding that the person poses a credible threat. A foster parent has no such finding against them.

Q: What is Johnson v. Lyon?
A: A 2018 Western District of Michigan decision denying a motion to dismiss in a § 1983 challenge to Michigan's foster-home firearm storage rule. The court applied Heller and concluded that storing firearms in an inoperable condition makes them useless for self-defense, which implicates the Second Amendment.

Q: Does the AG say the regulation has any statutory basis?
A: No. The AG concluded there is no statutory support for the regulation. That's a separate, state-law ground for invalidity (administrative regulations cannot exceed enabling legislation under S.C. Coastal Conservation League v. S.C. DHEC, 390 S.C. 418, 702 S.E.2d 246 (2010)).

Q: Can a foster parent who challenges the rule lose their license?
A: Possibly. The regulation remains in force, and noncompliance could result in licensing action. The legal question of constitutional validity is separate from the administrative question of compliance. Talk to a lawyer before defying the rule.

Background and statutory framework

SCDSS Regulation 114-550(N) is the operative regulation. It is part of the foster-home licensing standards. It requires storage in an "inoperative condition" in a locked area inaccessible to children, with ammunition separately locked. The 2009 SCDSS Policy and Procedure Manual layers in additional requirements at §§ 911.01 and 918.01: collecting a list of firearms in the home and ensuring locked storage, with a narrow allowance for legal carry on the foster parent's person.

The constitutional framework is the Second Amendment as construed by:

• Heller (2008): individual right to keep and bear arms for self-defense in the home.
• McDonald (2010): Second Amendment incorporated against the states through the Fourteenth Amendment.
• Bruen (2022): historical-tradition test replaces means-end balancing.
• Rahimi (2024): historical analogues for restraining-order disarmament uphold § 922(g)(8) facially.

The AG's analysis tracks Bruen's two-step framework: (1) is the conduct presumptively protected by the Second Amendment's text? Yes, possessing operable firearms in the home for self-defense. (2) Has the government identified a historical tradition supporting the regulation? No, none for foster-home storage rules.

The state-law argument runs through the standard South Carolina administrative-regulation framework. The legislature has plenary power, agency regulations have force of law only when they are reasonably related to the enabling legislation and do not alter or add to a statute (McNickel's Inc. v. S.C. Dep't of Revenue, 331 S.C. 629, 634, 503 S.E.2d 723, 725 (1998); S.C. Coastal Conservation League, 390 S.C. at 429, 702 S.E.2d at 252). The AG concluded that the foster-home firearm storage regulation lacks statutory support.

Citations and references

Constitutional provisions:
- U.S. Const. amend. II
- U.S. Const. amend. XIV
- S.C. Const. art. I, § 20

Federal statute:
- 18 U.S.C. § 922(g)(8)

State regulation and policy:
- SCDSS Regulation 114-550(N)
- SCDSS Human Services Policy and Procedure Manual §§ 911.01, 918.01

U.S. Supreme Court cases:
- District of Columbia v. Heller, 554 U.S. 570 (2008)
- McDonald v. City of Chicago, 561 U.S. 742 (2010)
- New York State Rifle and Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022)
- United States v. Rahimi, 602 U.S. 680 (2024)

Federal district court case:
- Johnson v. Lyon, 406 F. Supp. 3d 651 (W.D. Mich. 2018)

South Carolina cases:
- Heslep v. State Highway Dep't, 171 S.C. 186, 171 S.E. 913 (1933)
- Hampton v. Haley, 403 S.C. 395, 743 S.E.2d 258 (2013)
- Fripp v. Coburn, 101 S.C. 312, 85 S.E. 774 (1915)
- Planned Parenthood South Atlantic v. State, 440 S.C. 465, 892 S.E.2d 121 (2023)
- McNickel's Inc. v. S.C. Dep't of Revenue, 331 S.C. 629, 503 S.E.2d 723 (1998)
- S.C. Coastal Conservation League v. S.C. DHEC, 390 S.C. 418, 702 S.E.2d 246 (2010)
- S.C. Tax Comm'n v. S.C. Tax Bd. of Review, 305 S.C. 183, 407 S.E.2d 627 (1991)

Other federal cases referenced:
- National Rifle Association v. ATF, 700 F.3d 185 (5th Cir. 2012)
- Nordyke v. King, 563 F.3d 439 (9th Cir. 2009)

Commentary cited:
- Murphy, "Foster Second Amendment Rights: An Evaluation of Foster Parents' Right To Bear Arms," 96 U. Det. Mercy L. Rev. 397 (2019)
- DuChane, "In Defense of Hearth and Home: Determining the Constitutionality of State Regulation of Firearm Storage in Foster Homes," 75 Wash. & Lee L. Rev. 1639

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-on-the-constitutionality-of-a-dss-regulation-regarding-the-maintaining-of-firearms-in-a-foster-home/
• Original PDF: https://www.scag.gov/media/iyifiue3/gilliamd-os-11066-final-opinion-10-28-2025.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

ALAN WILSON
ATTORNEY GENERAL

October 28, 2025

The Honorable Leon D. Gilliam, Member
South Carolina House of Representatives
420C Blatt Building
Columbia, SC 29201

Dear Representative Gilliam:

You seek our opinion "on a matter important to all South Carolinians, especially those among us who are serving as foster parents to the over 4,500 South Carolina youths in foster care." Specifically, your letter states:

[O]ur concerns and answers to our questions [require resolution] so that these dedicated volunteers retain their Second Amendment right to keep and bear arms uninfringed -- while they provide their generous and valuable help to children in need.

It is my understanding that caseworkers and other officials with the South Carolina Department of Social Services [SCDSS] are prohibiting foster parents from adopting a foster child so long as any firearms are present in their home.

Our research has not found any state code requiring a complete deaccession of household firearms by foster parents who are considering adoption of a foster child. As part of preparing this letter, we have reviewed SCDSS Regulation 114-550(N). It provides the following:

114-550(N) Additional Health and Safety Standards.

(1) The applicants' home must meet the following standards concerning weapons:

(a) The following weapons must be stored in an inoperative condition in a locked area inaccessible to children:

(i) Firearms;
(ii) Air guns;
(iii) BB guns;
(iv) Hunting slingshots; and
(v) Any other projectile weapon.

(b) All ammunition, arrows or projectiles for such weapons must be stored in a locked space separate from the weapons.

(c) Applicants who are also law enforcement officials and can document that their jurisdiction requires them to have ready and immediate access to their weapons may be exempt from these weapon requirements provided the applicants adopt and follow a safety plan approved by the agency.

In addition to this regulation, we are also aware that SCDSS developed a Policies and Procedures Manual in 2009. This manual contains additional inquiries to potential foster parents, which appear to restrict applications by firearm-owning foster parent applicants:

911.01 Evaluation of the Foster Family Applicant/Family Assessment

6. Obtains a list of all firearms in the home whether or not they are owned/licensed to the applicant and ensures they are kept in a locked storage container.

918.01 Standards of Care

17. Firearms and any ammunition shall be kept in a locked storage container except when being legally carried upon the foster parent's person; being used for educational, recreational, or defense of self or property purposes by the foster parent; or being cleaned by the foster parent.

SCDSS Human Services Policy and Procedure Manual 9 (Foster Care Licensing).

Specifically, we seek your review of these SCDSS demands from potential and currently serving foster parents in light of 1895 S.C. Const. art. I, Sec. 20; U.S. Const. Amend. II; your prior opinion to Aiken County Council Chairman Gary Bunker dated August 3, 2021; the 2008 US Supreme Court Opinions in District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. Chicago, 561 U.S. 742 (2010); and the issues discussed by Joseph G. DuChane in his law review article In Defense of Hearth and Home: Determining the Constitutionality of State Regulation of Firearm Storage in Foster Homes 75 Wash. & Lee L. Rev. 1639; and any other related resources to provide your opinion about, and answers to, my questions as follows:

[Five questions about Second Amendment infringement, statutory authority, scope of agency power, and legislative authority over firearms.]

It is our opinion that a court would most probably conclude that such a limitation by DSS violates the Second Amendment. Such a Regulation would likely be deemed by a court to infringe upon the foster parents' fundamental right to defend themselves in their home.

Law/Analysis

Two fundamental constitutional principles, one based upon the state Constitution and one the federal, underpin your questions. First, as the South Carolina Supreme Court recently stated:

. . . the General Assembly's authority to legislate is plenary: the South Carolina Constitution grants power to the legislature to "enact any act it desires to pass, if such legislation is not expressly prohibited by the Constitution of this State, or the Constitution of the United States." Heslep v. State Highway Dep't., 171 S.C. 186, 193, 171 S.E. 913, 915 (1933); see also Hampton v. Haley, 403 S.C. 395, 403, 743 S.E.2d 258, 262 (2013) ("[T]he General Assembly has 'plenary power over all legislative matters unless limited by some constitutional provision.'"); Fripp v. Coburn, 101 S.C. 312, 317, 85 S.E. 774, 775 (1915) ("[T]he legislature may enact any law not prohibited by the Constitution.").

Planned Parenthood South Atlantic v. State, 440 S.C. 465, 475, 892 S.E.2d 121, 127 (2023). In accordance with this basic tenet,

[a]n administrative regulation is valid as long as it is reasonably related to the purpose of the enabling legislation. McNickel's Inc. v. S.C. Dep't of Revenue, 331 S.C. 629, 634, 503 S.E.2d 723, 725 (1998). Although a regulation has the force of law, it must fall when it alters or adds to a statute. Id.

S.C. Coastal Conservation League v. S.C. Dep't. of Health & Env't. Control, 390 S.C. 418, 429, 702 S.E.2d 246, 252 (2010). See also S.C. Tax Com'n. v. S.C. Tax Bd. of Review, 305 S.C. 183, 186, 407 S.E.2d 627, 629 (1991). We find no statutory support for such a Regulation as DSS has promulgated.

The second fundamental constitutional principle involved here is the Second Amendment to the federal Constitution. The United States Supreme Court recently explained in New York State Rifle and Pistol Association, Inc. v. Bruen, 597 U.S. 1, 8-10 (2022), its Second Amendment jurisprudence, as follows:

[I]n District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L. Ed.2d 637 (2008) and McDonald v. Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L. Ed.2d 894 (2010), we recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense. In this case, petitioners and respondents agree that ordinary, law-abiding citizens have a similar right to carry handguns publicly for their self-defense. We too agree, and now hold, consistent with Heller and McDonald, that the Second and Fourteenth Amendments protect an individual's right to carry a handgun for self-defense outside the home.

[The Bruen Court further elaborated upon its historical-tradition analysis, including the discussion of "sensitive places" and reasoning by analogy.]

We turn now to consideration of the particular DSS regulation referenced in your letter.

The Department of Social Services (DSS) is the regulatory body for foster homes in South Carolina. According to the DSS website, foster care is a temporary placement when a child cannot live safely at home. Children in foster care are in DSS legal custody.

DSS, as the legal custodian of the foster care child, has chosen to promulgate regulations regarding the maintaining of firearms in the foster home. These regulations, in essence, require that firearms of any kind be stored to render them inoperable. Such regulations are similar to those in the majority of states, as we understand it. As well-intended as such regulations may be, seeking the protection of a child, they must comply with the law, certainly the Second Amendment. As we have emphasized on numerous occasions, this Office strongly supports the constitutional right to bear arms under the Second Amendment, as well as Art. I, § 20 of the South Carolina Constitution. In light of the decisions by the United States Supreme Court in Heller, McDonald and Bruen, the right to self-defense, as protected by the Second Amendment, is fundamental to the rights of every law-abiding citizen.

Based upon the Supreme Court's decisions, a court could well conclude that the DSS regulations regarding the requirement of gun storage in foster homes violate the Second Amendment. We note that even before Bruen, in Heller, the Supreme Court struck down, "the District's requirement (as applied to respondent's handgun) that firearms in the home be rendered and kept inoperable at all times." In the words of the Heller Court,

[t]his [requirement] makes it impossible for citizens to use [firearms] . . . for the core lawful purpose of self-defense and is hence unconstitutional.

554 U.S. at 630. Thus, the Supreme Court, even before Bruen, had held that the requirement of dismantling firearms in the home violated the Second Amendment.

Bruen strongly reinforces Heller in this regard. As the Court holds in Bruen,

[i]n keeping with Heller, we hold that when the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with the Nation's historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation's historical tradition may a court conclude that the individual's conduct falls outside the Second Amendment's "unqualified command."

Bruen, 597 U.S. at 17. Moreover, as one commentator has concluded, "[f]oster care safe-storage statutes significantly burden foster parents' ability to possess firearms within the home for the core purpose of self-defense and cannot withstand strict scrutiny." Murphy, "Foster Second Amendment Rights: An Evaluation of Foster Parents' Right To Bear Arms," 96 U. Det. Mercy L. Rev. 397, 428 (2019).

Following Bruen, the Supreme Court decided U.S. v. Rahimi, 602 U.S. 680 (2024). In that case, the Court reviewed the facial constitutionality of the federal statute prohibiting possession of a firearm while subject to a domestic violence restraining order. Applying the Bruen test, the Court found that § 922(g)(8) was facially valid. According to the Court,

[w]hen an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed. Section 922(g)(8) is by no means identical to these founding era regimes [surety and going armed laws], but it does not need be. Its prohibition on the possession of firearms by those found by a court to present a threat to others fits neatly within the tradition the surety and going armed laws represent. . . . Unlike the regulation struck down in Bruen, Section 922(g)(8) does not broadly restrict arms by the public generally.

602 U.S. at 698-99.

We are unaware of any historical analogue whereby firearms may not be used for self-defense in the home of a foster parent and thereby must remain dismantled, such as the DSS regulation requires. In our view, a foster parent possesses the same constitutional right to self-protection as any other law-abiding citizen. Absent a court concluding that a foster parent poses a danger to others, (which, if so, would likely disqualify that person as a candidate to be a foster parent anyway), Rahimi is inapplicable. Moreover, history has not created a special exception in the case of foster parents, to our knowledge. As Heller makes clear, a requirement that a firearm must be stored and disabled is the equivalent of no-self-defense at all. This requirement is inconsistent with the Second Amendment.

We have located a federal court decision which supports our analysis. In Johnson v. Lyon, 406 F.Supp.3d 651 (W.D. Mich., Northern Div, 2018), foster parents filed an action pursuant to § 1983, alleging that the Michigan rule mandating storage of firearms in an inoperable condition violated the Second Amendment. The director of the Michigan Department of Health and Human Services filed a motion to dismiss for failure to state a claim. However, the Court denied the motion, concluding that the Second Amendment was clearly implicated by the Rule. According to the Court, the Heller decision is controlling. According to the Court's detailed analysis,

In Heller, the Court confronted a District of Columbia ordinance that, among other things, required residents to keep their lawfully-owned firearms "unloaded and dissembled or bound by a trigger lock or similar device" unless located in a place of business or in use for lawful recreational activity. 554 U.S. at 574-75. The Court explained that the Second Amendment right to "keep and bear arms" safeguards the ability of "law-abiding, responsible citizens to use arms in defense of hearth and home." 554 U.S. at 634-35. And therefore, the District of Columbia ran afoul of the Second Amendment by its "prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense." Id. at 635.

To be sure, Rule 415 is silent as to the use of firearms. It does not prohibit foster parents from carrying them, nor does it require foster parents to handle them in a particular manner. But like the Heller ordinance, it regulates how firearms are stored.

Storing firearms in an inoperable condition makes them useless for the defense of hearth and home, which implicates the Second Amendment. See Heller, 554 U.S. at 630. The need for self-defense rarely comes with advance notice; it occurs spontaneously, often at times specifically chosen for the expected vulnerability of the intended victim.

For example, a foster parent cannot "use" a firearm while asleep. Thus, Rule 415 mandates that the gun be stored in a locked gun safe or trigger locked, and the ammunition must be stored in a separate locked location. If, during the night, the need arises for the foster parent to use the gun for self-defense, he or she must now retrieve the weapon from the gun safe, proceed to a "separate locked location" to retrieve the ammunition, and load the gun. Only then would it be a functional firearm capable of defending hearth and home. Like the Heller ordinance, these significant constraints on self-defense within the home clearly implicate the Second Amendment.

[The Johnson court rejected the Department's "sensitive place" argument by analogy to schools, and rejected the analogy to under-21 firearm purchase restrictions in National Rifle Association v. ATF, 700 F.3d 185 (5th Cir. 2012). Foster homes are homes, not "sensitive places" with great numbers of defenseless people.]

406 F. Supp. 3d at 665-667.

The decision in Bruen strongly reinforces this decision. Bruen found Heller to be correctly decided and reaffirmed that decision (as well as the decision in McDonald). Moreover, the Bruen Court concluded not only that the text of the Second Amendment was controlling, but that there must be a "historical tradition" for a particular firearms regulation in order for such regulation to be upheld. We are unaware of any such tradition with respect to the home of foster parents. As the Court noted in Johnson v. Lyon, the home of foster parents is a "home" like any other. Thus, such a location is not a "sensitive area" justifying such regulation. Further, Rahimi is not to the contrary, as there is no judicial finding of a threat to another.

Conclusion

While we greatly respect the purpose and objective underlying the DSS Regulation, the protection of foster children, we are of the opinion that a court would likely conclude that the Second Amendment's right to bear arms is here controlling and supersedes such Regulation. The Supreme Court's decisions in Bruen, as well as Heller, make it clear that the Second Amendment protects the right to have a firearm in one's home with no limitations placed upon its storage. The right to the firearm, protected by the Second Amendment, serves the purpose of self-defense. The restraints placed upon the possession of a firearm by requiring that a foster parent household must dismantle that firearm and keep it stored would likely be deemed by a court to be an infringement upon the homeowner's Second Amendment right to defend hearth and home. Such a requirement provides no self-defense at all.

Indeed, in Heller, the Supreme Court struck down the District of Columbia's requirement that a firearm be stored to render it inoperable, concluding that such storage requirement "makes it impossible for citizens to use [firearms] for the core purpose of self-defense and is hence unconstitutional." The Michigan decision in Johnson directly addresses this issue in the context of foster parents. As the Court there noted, "[s]toring firearms in an inoperable condition makes them useless for defense. . . ." While we appreciate the policy considerations of DSS which are involved, such considerations cannot violate a fundamental constitutional right to bear arms, as the Supreme Court has construed the Second Amendment. The Rahimi decision is not to the contrary as there has been no judicial determination of a threat to another. We are of the view that the Second Amendment supersedes the Regulation. Of course, only a court may invalidate the DSS Regulation and such agency action remains valid until a court rules otherwise.

Sincerely,

Robert D. Cook
Solicitor General Emeritus