If a person moves to South Dakota for a 12-month contract job but keeps voting and paying taxes in their home state, can they get a South Dakota concealed pistol permit after 30 days?

Plain-English summary

In August 1998, the Pennington County Sheriff asked about a concealed pistol permit applicant who had moved to Rapid City for a 12-month contract with a possible 6-month extension. The applicant kept a home-state residence and claimed that state for voting and tax purposes. The Sheriff asked whether the applicant satisfied the residency requirement in SDCL 23-7-7.1.

AG Mark Barnett said no. The opinion read the permit statute alongside two other South Dakota definitions of "resident" the Legislature had written into the Code: SDCL 12-1-4 (residence for voting purposes) and SDCL 41-1-1(20) (residence for game and fish purposes). Both consider intent. The AG inferred that this applicant intended to return to his home state and was "merely living in South Dakota," not residing in it. The opinion also quoted Black's Law Dictionary on present intent to remain and a physical presence that was something other than transitory.

The opinion noted that the Legislature could have written the statute to require only 30 days of physical presence, but it had instead used "resident of the county or municipality." The word choice controlled. The Sheriff therefore had a basis to deny the permit. A denial could be appealed to the circuit court under SDCL ch. 1-26.

Currency note

This opinion was issued in 1998. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context and check current permit law before relying on its eligibility rules or appeal procedure.

What the opinion meant at the time

For county sheriffs handling permit applications, the opinion distinguished the required thirty days of residency from merely being physically present. The applicant's continuing home-state residence and voting and tax claims led the AG to conclude that he was not a South Dakota resident.

For temporary contract workers, the opinion showed that the statutory thirty days must be spent as a resident of the county or municipality, not simply living there temporarily. The AG relied on this applicant's continued home-state residence and his voting and tax claims there.

For practitioners advising applicants, the quoted statute required at least thirty days of residency in the county or municipality of application. It also allowed a person denied a permit to appeal to circuit court under chapter 1-26. The opinion did not decide another applicant's residency on different facts.

For firearms dealers and trainers, the opinion addressed only the residency element of South Dakota's concealed-pistol-permit statute (SDCL 23-7-7.1); it did not address federal firearms law.

Common questions

Q: Did this opinion mean a person had to live in South Dakota for years before getting a permit?
A: No. The statute quoted in the opinion required at least thirty days as a resident of the county or municipality. The AG found that this applicant did not meet the residency requirement because he maintained a home-state residence and claimed that state for voting and taxes.

Q: What if the applicant had moved his voter registration to South Dakota?
A: The opinion did not decide that situation. It treated this applicant's claim of his home state for voting, taxes, and residence as evidence that he intended to return there.

Q: Did the opinion give the sheriff discretion to deny any non-resident?
A: It gave the sheriff the authority to apply the residency element of SDCL 23-7-7.1. A denial on that ground could still be challenged in circuit court under SDCL ch. 1-26.

Q: Could the applicant have applied in his home state instead?
A: The opinion does not address permits in another state. It decides only that this applicant did not meet South Dakota's residency requirement.

Q: Was the opinion binding on the sheriff?
A: AG opinions in South Dakota are persuasive authority, not binding precedent. A sheriff who disagreed with the analysis was not legally bound to follow it, but the opinion told the sheriff what the Attorney General's office would say if the matter were litigated.

Background and statutory framework

SDCL 23-7-7.1 in 1998 set out eight conditions for a temporary concealed pistol permit: minimum age 18, no felony or violent-crime conviction, no habitual intoxication, no history of violence, no recent mental-health adjudication, 30 days of residency in the county or municipality, no recent firearms-chapter violations, and U.S. citizenship or two years of legal presence. The statute imposed a five-day processing deadline and provided for a circuit court appeal under SDCL ch. 1-26.

The statute did not separately define "resident." Under SDCL 2-14-4, definitions elsewhere in the Code could be borrowed if they fit the context. The opinion borrowed from two sources:

SDCL 12-1-4 defined residence for voting purposes as the place where a person had fixed habitation and to which the person intended to return when absent. The statute made clear that temporary absence did not break residence, and that intent to make another state one's permanent home did break it.

SDCL 41-1-1(20), the game and fish definition, used a similar intent-based test, with carve-outs for military service, U.S. or state government business, active duty spouses, and full-time students.

The opinion supplemented these with Black's Law Dictionary's definition, which framed residence as physical presence plus an indication that the presence was something other than transitory.

The contract-worker applicant fit poorly under all three. His own statements established that he intended to return to another state, that he claimed the other state for voting and tax, and that his South Dakota stay was bounded by the contract term. The opinion treated those admissions as dispositive.

Citations and references

Statutes:

• SDCL § 23-7-7.1 (concealed pistol permit eligibility)
• SDCL § 2-14-4 (cross-reference of statutory definitions)
• SDCL § 12-1-4 (residence for voting)
• SDCL § 41-1-1(20) (residence for game and fish)
• SDCL ch. 1-26 (administrative procedure appeals)

Cases: None cited.

Other authority:

• Black's Law Dictionary 1309 (6th ed. 1990) (definition of "resident")

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinions.aspx
• Original PDF: https://atg.sd.gov/OfficialOpinions/Official%20Opinion%2098-01.pdf

Original opinion text

August 20, 1998

Donald Holloway
Pennington County Sheriff
300 Kansas City Street
Rapid City, SD 57701-2889

OFFICIAL OPINION NO. 98-01
SDCL 23-7-7.1; residency requirements for concealed weapons permit

Dear Mr. Holloway:

You have requested an opinion from this Office regarding the following factual situation:

FACTS:

A person (hereinafter "applicant") has applied for a concealed weapons permit in Pennington County. The applicant has moved from another state to Rapid City to work under a contractual agreement for a 12-month period, with a possible 6-month extension. The applicant readily acknowledges that he is maintaining a residence in his home state. The applicant also is claiming his home state for purposes of voting and taxes.

QUESTION:

Does the applicant meet the requirements of SDCL 23-7-7.1, specifically the residency requirement, to obtain a concealed weapons permit in South Dakota?

IN RE QUESTION:

It appears that the applicant is not a resident under SDCL 23-7-7.1, which provides:

A temporary permit to carry a concealed pistol shall be issued within five days of application to a person if the applicant:

(1) Is eighteen years of age or older;

(2) Has never pled guilty to, nolo contendere to, or been convicted of a felony or a crime of violence;

(3) Is not habitually in an intoxicated or drugged condition;

(4) Has no history of violence;

(5) Has not been found in the previous ten years to be a "danger to others" or a "danger to self" as defined in § 27A-1-1 or is not currently adjudged mentally incompetent;

(6) Has been a resident of the county or municipality where the application is being made for at least thirty days;

(7) Has had no violations of chapter 23-7, 22-14, or 22-42 in the two years preceding the date of application; and

(8) Is a citizen of the United States or has been in the United States legally for at least two years.

A person denied a permit may appeal to the circuit court pursuant to chapter 1-26.

(Emphasis added). Black's Law Dictionary defines "resident" in part as:

Any person who occupies a dwelling within the State, has a present intent to remain within the State for a period of time, and manifests the genuineness of that intent by establishing an ongoing physical presence within the State together with indicia that his presence within the State is something other than merely transitory in nature. . . . Word "resident" has many meanings in law, largely determined by statutory context in which it is used.

Black's Law Dictionary 1309 (6th ed. 1990).

South Dakota has not specifically defined the term "resident" for purposes of obtaining a concealed weapons permit. Under SDCL 2-14-4, however, definitions elsewhere in the Code may be utilized. The South Dakota Legislature has delineated several criteria for the determination of one's residency for voting purposes in SDCL 12-1-4, which states:

For the purposes of this title, "residence" shall be the place in which a person has fixed his habitation and to which, whenever he is absent, he has the intention of returning.

A person who has left his home and gone into another state or territory or county of this state for a temporary purpose only shall not be considered to have lost his residence.

A person shall be considered to have gained a residence in any county or municipality of this state in which he actually lives, providing such person has no present intention to remove himself therefrom.

If a person moves to another state, or to any of the other territories, with the intention of making it his permanent home, he shall be considered to have lost his residence in this state.

The South Dakota Legislature has also defined resident in SDCL 41-1-1(20) as:

a person actually living within and intending to make the person's home in this state. No resident may lose rights under this title by reason of the resident's absence on business of the United States or of this state, or armed services of the United States or the spouse of an active duty military person, or any student regularly attending a school of higher learning as a full-time student[.]

These statutes are instructive here in that they consider one's intent in the determination of one's residence.

Here, the applicant is temporarily located in Pennington County. The applicant is maintaining his residence in his home state and is claiming that state as his residence for voting and tax purposes. The applicant obviously has an intent to return to that state. Thus, under the definitions discussed above, the applicant is not residing in South Dakota; the applicant is merely living in South Dakota. The applicant has not manifested the required intent to be considered a resident of South Dakota. The South Dakota Legislature could have stated that an applicant needed merely to live in a county or municipality in South Dakota for at least thirty days to meet the residency requirement for a concealed weapons permit but chose not to use that language; instead, it has required that applicants be a "resident of the county or municipality where the application is being made for at least thirty days."

In conclusion, this applicant does not meet the residency requirement of SDCL 23-7-7.1 to obtain a concealed weapons permit in South Dakota. The answer to your question is, therefore, "No."

Respectfully submitted,

MARK BARNETT
ATTORNEY GENERAL

MB:PC:nan