If a customer presents a valid South Dakota concealed pistol permit to a federally licensed firearms dealer, does that exempt the sale from the federal Brady Bill's five-day handgun waiting period?
Plain-English summary
The federal Brady Handgun Violence Prevention Act went into effect in early 1994, imposing a five-day waiting period on handgun sales by federally licensed dealers. Brady § 102(a)(1)(C) created an exemption: if the buyer presented a state permit issued within the last five years that (1) allowed the buyer to possess or acquire a handgun, and (2) was issued only after an official confirmed the buyer was not legally barred from handgun possession, then the federal waiting period did not apply.
The SD Secretary of State asked the AG whether South Dakota's concealed pistol permit met the federal exemption test. Under SDCL 23-7-7.1, a SD permit issued only after the sheriff or police chief ran a background check against the listed criteria. Under SDCL 23-7-9, a SD permit holder is exempt from the state's own 48-hour delivery wait. So the permit was clearly tied to a screening process and clearly conferred handgun rights.
The 1994 AG concluded that the SD permit satisfied Brady § 102(a)(1)(C). A buyer presenting a valid SD permit issued within the past five years was not subject to the federal five-day wait.
The AG added a wrinkle worth tracking. The SD permit term had been four years under the pre-1993 version of SDCL 23-7-8.2. In 1993, the Legislature extended the term to eight years. So an old four-year permit that had passed its four-year expiration was not "valid" any more, even though four years was less than the five-year ceiling in the Brady exemption. The four-year SD term created no actual conflict with the federal five-year ceiling, but it did mean a dealer accepting an unrenewed older permit had to be careful: if more than four years had elapsed since issuance under the old statute, the permit was expired regardless of how the federal exemption rule was written.
Currency note
This opinion was issued in 1994. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The federal Brady Bill background-check structure changed substantially in 1998 when NICS (National Instant Criminal Background Check System) replaced the five-day wait. Most handgun sales today are processed through NICS rather than the original Brady waiting-period regime. SD concealed-carry law has also been amended many times since 1994, including changes to permit categories (enhanced permit, gold card), term length, fees, and reciprocity. Verify the current statute, current Brady/NICS rules, and current ATF guidance before relying on this opinion for any modern firearm sale.
What the opinion meant at the time
For federally licensed firearms dealers in South Dakota in 1994, the opinion confirmed that a SD concealed pistol permit was a valid Brady exemption document. A customer presenting one could buy a handgun without the federal five-day wait, subject to the SD 48-hour state delivery rule still applying separately.
For SD concealed pistol permit holders, the opinion translated their permit into immediate buying convenience. They did not have to plan around a five-day federal delay on top of any state delay.
For SD sheriffs and police chiefs who issued the permits, the opinion confirmed that their issuance process under SDCL 23-7-7.1 was robust enough to satisfy a federal exemption standard. That validated the screening rigor already in place.
For gun buyers without a permit, the opinion meant the Brady wait still applied. The path to immediate purchase ran through getting and maintaining a concealed pistol permit.
For dealers checking the date on a presented permit, the opinion flagged a trap: the five-year ceiling in the federal exemption ran from issuance, but SD's own permit-term rules controlled whether the permit was still valid at all. A four-year-old SD permit issued under the pre-1993 rule was expired even though the federal five-year window had not closed.
Common questions
Q: Does a SD concealed pistol permit still exempt the holder from federal handgun waiting periods?
A: The Brady five-day waiting period was replaced by NICS in 1998. Modern federal practice differs from the 1994 regime described in this opinion. Verify the current ATF and federal law before relying on any waiting-period exemption today.
Q: What is the Brady Bill's "permit exemption"?
A: Under the original Brady Handgun Violence Prevention Act § 102(a)(1)(C), if a state-issued permit allowed handgun possession, was less than five years old, and had been issued after a background check, the federal five-day waiting period did not apply.
Q: How did SD's concealed pistol permit qualify?
A: SDCL 23-7-7.1 required the sheriff or police chief to verify that the applicant was not legally barred from possessing a handgun before issuing the permit. That matched Brady § 102(a)(1)(C)'s background-check criterion.
Q: What was the 1993 SD permit term change?
A: Before 1993, SDCL 23-7-8.2 gave the permit a four-year term. In 1993, the Legislature extended the term to eight years. Permits issued under the four-year rule still expired after four years; only new permits issued after the amendment got the eight-year term.
Q: Did SD's own 48-hour wait still apply?
A: Yes, separately. SDCL 23-7-9 imposed a state 48-hour delivery wait that the SD permit holder was exempt from. The federal Brady exemption and the SD 48-hour exemption operated independently.
Q: What about the 5/8-year mismatch?
A: The AG noted there was no actual conflict. SD's four-year (later eight-year) term was either shorter than or comparable to the federal five-year exemption ceiling. A SD permit older than its SD validity term was expired regardless of where it sat under the federal rule.
Background and statutory framework
The Brady Handgun Violence Prevention Act was the major federal handgun-sale reform of the early 1990s, imposing a national five-day waiting period on handgun sales by federally licensed dealers. The exemptions in § 102(a)(1) were the political compromise that brought the bill across the line. States with rigorous pistol permit systems argued that their permits were already a more robust check than a five-day delay, and the federal statute accommodated them.
The § 102(a)(1)(C) test had two prongs: the permit had to allow handgun possession or acquisition, and the state law had to require that the permit be issued only after an authorized government official verified the applicant was not legally barred. Both prongs had to be satisfied by the state law, not just by the actual practice.
South Dakota's pistol permit framework under SDCL chapter 23-7 met both prongs. SDCL 23-7-7 set the issuing authority: county sheriff for county residents, municipal police chief for residents of cities with a chief. SDCL 23-7-7.1 set the background criteria the issuing authority had to verify (no disqualifying criminal history, no mental incapacity, no other listed disqualifiers).
The SD permit's effect within South Dakota was governed by SDCL 23-7-9. SD imposed a 48-hour state-level delivery delay on pistol sales, but exempted buyers who held a valid concealed weapon permit. The federal Brady exemption operated in parallel: federal five-day delay, exempted for valid permit holders within the five-year ceiling.
The 1993 SD legislative amendment to SDCL 23-7-8.2 stretched the permit term from four years to eight. The amendment did not retroactively re-validate old expired permits. The AG flagged the practical takeaway: dealers had to actually check the issuance date on the presented permit against both the federal five-year ceiling and the SD state-law validity term.
Citations and references
Statutes (state):
- SDCL chapter 23-7 (concealed weapons)
- SDCL 23-7-7 (issuing authority)
- SDCL 23-7-7.1 (background check criteria)
- SDCL 23-7-8.2 (permit term; 1993 amendment to eight years)
- SDCL 23-7-9 (state 48-hour delay; permit-holder exemption)
Federal:
- Brady Handgun Violence Prevention Act, § 102(a)(1)(A) (general dealer waiting requirements)
- Brady Handgun Violence Prevention Act, § 102(a)(1)(C) (state permit exemption)
Source
Original opinion text
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