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Legal Information: South Dakota

South Dakota State Gun Laws

State Gun Laws

Basic Info and Definitions

What is the difference between federal and state gun laws? Why do I need to understand both?

In these gun laws pages, we refer to both “federal gun laws” and “state gun laws.”  The major difference between the two has to do with who makes the law, who prosecutes someone who violates the law, and what the penalty is for breaking the law.

One reason why it is important for you to know that there are these two sets of gun laws is so that you can understand all of the possible ways that the abuser might be breaking the law, and you can better protect yourself.  Throughout this section, we will be referring mostly to state laws.  Be sure to also read our Federal Gun Laws pages to see if any federal laws apply to your situation as well.  You will need to read both state and federal laws to see which ones, if any, the abuser might be violating.

If you are calling the police because you believe the abuser has violated a gun law, you do not necessarily need to be able to tell the police which law was violated (state versus federal) but local police cannot arrest someone for violating federal law, only for violating state/local laws.  Only federal law enforcement, the Bureau of Alcohol, Tobacco and Firearms (“ATF”), can arrest someone for violating federal laws.  If the local police believe that a state law is being violated, they could arrest the abuser and hand the case over to the state prosecutor.  If the local police believe a federal law is being violated, hopefully, the police department will notify the ATF or perhaps the U.S. Attorney’s office in your state (which is the federal prosecutor).  For information on how you can contact ATF directly to report the violation of federal gun laws, go to Who do I notify if I think the abuser should not have a gun?  If the abuser is breaking both state and federal laws, s/he might be prosecuted in both state and federal court.

What is the definition of a felony?

In South Dakota, a felony is a crime for which someone can or must be sentenced to imprisonment in the state penitentiary. Any other crime is a misdemeanor.1

1 SDCL § 22-1-4

I am a victim of domestic violence and the abuser has a gun. Is that legal?

Under South Dakota state law, it is illegal for someone to have/buy a gun if s/he:

  1. was convicted in South Dakota or another state of a crime of violence; (Note: It is only illegal for 15 years after the person was last discharged from prison, jail, probation, or parole for the crime);1
  2. was convicted of a felony drug crime under the section of the law called “Chapter 22-42. Controlled Substances and Marijuana,”1 which are all listed on the South Dakota Legislature website. (Note: If s/he was convicted of certain felony crimes in Chapter 22-42 that are listed on our website here, then it is illegal to have/buy a gun for 15 years after the person was last discharged from prison, jail, probation, or parole for the crime.1 However, if the conviction was for one of the felony crimes that is listed on the South Dakota Legislature website but not listed on our website here, then it is only illegal to have/buy a gun for 5 years after the person was last discharged from prison, jail, probation, or parole for the crime);2 or
  3. was convicted of a misdemeanor crime involving an act of domestic violence; (Note: It is only illegal to have/buy a gun for the first year after the date of the conviction.)3

In addition, a person cannot get a permit to carry a concealed weapon if s/he:

  • is under age eighteen;
  • pled guilty to, pled no contest (nolo contendere) to, or was convicted of:
    • a felony;
    • a crime of violence;
    • a misdemeanor crime of violence, as defined by federal law; or
    • any crime punishable by imprisonment for more than one year;
  • is habitually in an intoxicated or drugged condition;
  • is an unlawful user of or addicted to any controlled substance;
  • has a history of violence;
    1. was determined to be a “danger to others” or a “danger to self” at some point during the past 10 years;
    2. is currently deemed mentally incompetent by a judge;
    3. has been declared in court (adjudicated) to be a “mental defective;”
    4. has been committed to a mental institution;
    5. has not physically resided the county where the application is being made for at least the past thirty days;4 (although there is an exception to this for members of the military and their spouses);5
    6. has been convicted of a felony or misdemeanor crime under Chapter 23-7, 22-14, or 22-42 within the past five years (or is currently under indictment for one of those crimes);
    7. is not a citizen or legal resident of the United States;
    8. was a citizen but has renounced his/her U.S. citizenship;
    9. is a fugitive from justice;
    10. has been discharged from the Armed Forces under dishonorable conditions;
    11. is prohibited under state law from from receiving, possessing or transporting a firearm; or
    12. iis the respondent on a protection order that was issued after notice and a hearing that:
      1. restrains him/her from:
        • harassing, stalking, or threatening an intimate partner or the child of an intimate partner; or
        • engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
      2. includes a finding that s/he represents a credible threat to the physical safety of an intimate partner or child or specifically prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury.4

    If any of these situations apply to the abuser, it may be illegal for him/her to have a gun. Also, federal laws, which apply to all states, restrict an abuser’s right to have a gun in certain situations. Go to Federal Gun Laws to get more information.

    1 SDCL § 22-14-15
    2 SDCL § 22-14-15.1
    3 SDCL § 22-14-15.2
    4 SDCL §§ 23-7-7; 23-7-7.1; 18 USC § 922​(g), (n)
    5 SDCL § 23-7-7.5

    Guns and Protection Orders

    I have a temporary order against the abuser. Can his/her gun be taken away?

    In South Dakota, as part of an ex parte temporary order, the judge can order the abuser to “immediately turn over all weapons and ammunition to the local sheriff.”1 A person can also be denied a permit to carry a concealed weapon if s/he has a “history of violence,”2 although the law doesn’t specifically define what this means.

    Federal law may also prohibit the abuser from having a firearm while a temporary order is in effect but it’s not likely. If the judge gave you an ex parte temporary protective order (which means that no advance notice was given to the abuser), which is commonly done, it could still be legal for him/her to have a gun under federal law. However, if the judge scheduled a court hearing and gave notice of the hearing to the abuser before giving you the temporary protective order, it is possible that it is illegal for him/her to have a gun under federal law. The protective order must also meet certain other requirements, though. Read I have a final order of protection against the abuser. Can his/her gun be taken away? (in our Federal Gun Laws section) to find out more.

    1 See Domestic Temporary Ex Parte Order of Protection and Stalking Temporary Ex Parte Order of Protection
    2 SDCL §§ 23-7-7; 23-7-7.1(4)

    I have a protection order against the abuser. Can s/he keep a gun or buy a new gun?

    In South Dakota, as part of an ex parte temporary order or a final protection order, the judge can order the abuser to “immediately turn over all weapons and ammunition to the local sheriff.”1

    In addition, a person can be denied a permit to carry a concealed weapon if s/he is the respondent on a protection order that was issued after notice and a hearing that:

    1. restrains him/her from:
      • harassing, stalking, or threatening an intimate partner or the child of an intimate partner; or
      • engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
    2. includes a finding that s/he represents a credible threat to the physical safety of an intimate partner or child or specifically prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury.2

    Federal laws, which apply to all states, restrict an abuser’s right to have a gun if you have a protection order against him/her that meets certain requirements even if the judge does not specifically include on the order that s/he cannot have a gun. Go to the Federal Gun Laws page to get more information.

    If you are afraid for your safety, talk to your local domestic violence program about your options. Go to the SD Advocates and Shelters to find a program in your area.

    1 See Domestic Permanent Order of Protection, Domestic Temporary Ex Parte Order of Protection, Stalking Permanent Order of Protection, and Stalking Temporary Ex Parte Order of Protection
    2 SDCL §§ 23-7-7;. 23-7-7.1(10); 18 USC § 922​(g)

    Is there anything I can do to make it more likely that the abuser's gun is taken away when I get a protection order?

    Here are a few things that may help:

    • If the abuser has a gun, tell the judge how many guns s/he has, and if s/he has ever threatened you with a gun(s);
    • Ask the judge to specifically write in your protective order that the abuser cannot own, buy or have a gun while the order is in effect. The form that you will have to fill out to petition for a protective order will have a place where you can request additional protections. You can ask that the abuser’s gun(s) be taken away in that section; and
    • Before leaving the courthouse, check to make sure that the gun restriction is written on your order.

    It also may be helpful if the judge explains what will happen to the abuser’s guns, who will take them, and where they will be held once you leave the courthouse. If the judge agrees to add language that the abuser cannot keep his/her guns while the protection order is in effect, you may also want to ask that the judge:

    • Require the abuser to give his/her guns to the police, or require the police to go to the abuser’s house and get them;
    • Make it clear to both you and the abuser how long the guns will be kept away from the abuser; and
    • Order that the police notify you when the guns are returned to the abuser.

    Guns and Criminal Convictions

    If the abuser has been convicted of a crime, can s/he keep or buy a gun?

    It may be illegal to have a gun depending on the crime. Under South Dakota state law, it is illegal for someone to have/buy a gun if s/he:

    1. was convicted in South Dakota or another state of a crime of violence; (Note: It is illegal for 15 years after the person was last discharged from prison, jail, probation, or parole for the crime);1
    2. was convicted of a felony drug crime under the section of the law called “Chapter 22-42. Controlled Substances and Marijuana,”1 which are all listed on the South Dakota Legislature website. (Note: If s/he was convicted of certain felony crimes in Chapter 22-42 that are listed on our website here, then it is illegal to have/buy a gun for 15 years after the person was last discharged from prison, jail, probation, or parole for the crime.1 However, if the conviction was for one of the felony crimes that is listed on the South Dakota Legislature website but not listed on our website here, then it is only illegal to have/buy a gun for 5 years after the person was last discharged from prison, jail, probation, or parole for the crime);2 or
    3. was convicted of a misdemeanor crime involving an act of domestic violence; (Note: It is only illegal to have/buy a gun for the first year after the date of the conviction.)3

    In addition, a person cannot get a permit to carry a concealed weapon if s/he:

    • pled guilty to, pled no contest (nolo contendere) to, or was convicted of:
      • a felony;
      • a crime of violence;
      • a misdemeanor crime of violence, as defined by federal law; or
      • any crime punishable by imprisonment for more than one year;
    • has been convicted of a felony or misdemeanor crime under Chapter 23-7, 22-14, or 22-42 within the past five years (or is currently under indictment for one of those crimes); or
    • is a fugitive from justice.4

    Federal laws, which apply to all states, also restrict a person’s right to have a gun if s/he has been convicted of certain crimes. Go to Federal Gun Laws to get more information.

    1 SDCL § 22-14-15
    2 SDCL § 22-14-15.1
    3 SDCL § 22-14-15.2
    4 SDCL §§ 23-7-7; 23-7-7.1; 18 USC § 922​(g), (n)

    How can I find out if the abuser has been convicted of a crime?

    Misdemeanor and felony records are open to the public, but they are not always easy to access.  If you know the exact courthouse where the abuser may have been convicted, you can go to the courthouse and ask the clerk of court for access to those records.

    In addition to the prohibitions under South Dakota laws based on convictions for various crimes, federal law specifically prohibits possession of a firearm if the person is convicted of any felony or of a domestic violence misdemeanor.  Criminal records that would make a person ineligible to purchase a firearm under federal law are also kept in the National Instant Criminal Background Check System (NICS).  However, no one other than law enforcement officials and licensed firearm sellers are allowed to search the NICS.  Your local police department may be willing to search NICS for you if you ask, but they are not required to do so.

    To read more about the NICS, please see the question, What will happen if the abuser tries to purchase a gun?

    The Abuser Isn’t Supposed to Have a Gun…Now What?

    If the abuser's gun is taken away, what will happen to it?

    If the abuser’s gun is ordered to be taken away as part of your protection order, the abuser may be required to turn it over to the local sheriff department.1 It may then either be held by the sheriff department, or in some cases, the authorities may allow the abuser to leave the gun with a friend or relative while your protection order is in effect.

    If the abuser’s gun is taken by the police as part of a criminal case, s/he may be required to turn it over to local law enforcement.2 In most states, guns that are given to law enforcement are either sold or destroyed if the abuser is convicted of the crime. If the abuser is not convicted of the crime, the gun will most likely be given back to him/her.

    1 See Domestic Permanent Order of Protection, Domestic Temporary Ex Parte Order of Protection, Stalking Permanent Order of Protection, and Stalking Temporary Ex Parte Order of Protection
    2 SDCL § 25-10-24

    Who do I notify if I think the abuser should not have a gun?

    If you think the abuser is violating state firearm laws, you can call your local police or sheriff department or the state police.  If you think the abuser is violating federal firearm laws, you can call the Bureau of Alcohol, Tobacco and Firearms (ATF). 

    You can find contact information for sheriff departments in your area on our SD Sheriff Departments page.

    You can find ATF field offices in South Dakota on the ATF website.  For reporting illegal firearm activity, a person can also call 1-800-ATF-GUNS (1-800-283-4867).  Many ATF offices have victim advocates on staff (called “victim/witness coordinators”) and so perhaps you may ask to speak one of these advocates if you are having a hard time connecting with (or receiving a call back from) an ATF officer. 

    A local domestic violence organization in your area may also be able to answer your questions and assist you in talking to the necessary law enforcement officials.  You will find contact information for organizations in your area on our SD Advocates and Shelters page. 

    Note: Generally, the abuser does not have to have knowledge of the law in order to be arrested for breaking the law.  If the abuser has or buys a gun in violation of the law, the abuser can be arrested, whether or not s/he knows that s/he was in violation of the law.1 

    1 United States v. Lippman, 369 F. 3d 1039 (8th Cir. 2004); United States v. Henson, 55 F. Supp. 2d 528 (S.D. W.V. 1999)

    What is the penalty for violating the firearm laws?

    If the judge includes as one of the terms of your protection order that the abuser must turn over his/her firearms, s/he can be charged with a class 1 misdemeanor if s/he violates that term of the protection order.1  If s/he violates the criminal law that prohibits a person convicted of a crime of violence or certain drug crimes from having a firearm, it can be a class 6 felony.2  If s/he violates the criminal law that prohibits a person convicted of a misdemeanor crime involving an act of domestic violence from having a firearm, it can be a class 1 misdemeanor.3

    In addition, anyone who owns, has or buys a gun in violation of the federal firearm laws can be punished by a fine, jail time for up to 10 years, or both.4

    1 SDCL § 25-10-13
    2 SDCL §§ 22-14-15; 22-14-15.1
    3 SDCL § 22-14-15.2
    4 18 USC § 924(a)(2)

    What will happen if the abuser tries to purchase a gun?

    Before purchasing a gun from a licensed firearm dealer, all buyers must undergo a criminal background check that is processed through the National Instant Criminal Background Check System (NICS). The National Instant Criminal Background Check System is used by federal firearms licensees (FFLs), such as firearms dealers or pawnbrokers, to instantly determine whether someone is eligible to receive (own, possess, transport) firearms or explosives.1 If the abuser has a qualifying protection order against him/her, or has been convicted of a felony or domestic violence misdemeanor in any state, those records should be in the NICS, which should prevent the abuser from legally buying a gun. Not all states have automated record keeping systems, making it more difficult to process the criminal background check, and some criminals and abusers do slip through the system. Also, it is important to know that background checks are not required for private and online gun sales and so in those situations, the seller is not looking in the NICS.

    If the abuser is able to purchase a gun and you believe that s/he should not be able to have one under the law, you can alert the police, and ask that his/her gun be taken away and perhaps the police will investigate. Generally, it is not a good idea to assume that because the abuser was able to buy a gun, it is legal for him/her to have one.

    1National Criminal Justice Reference Service website

    More Information and Where to Get Help

    I do not have a protection order against the abuser and s/he has not been convicted of a crime. Can s/he have a gun?

    Under South Dakota law, there are many reasons that a person cannot get a permit to carry a concealed weapon that don’t involve criminal convictions or protection orders. The permit should be denied if s/he:

    • is under age eighteen;
    • is habitually in an intoxicated or drugged condition;
    • has a history of violence;
    • was determined to be a “danger to others” or a “danger to self” at some point during the past 10 years;
    • is currently deemed mentally incompetent by a judge;
    • has not physically resided the county where the application is being made for at least the past thirty days;1 (although there is an exception to this for members of the military and their spouses);2
    • is currently under indictment for a felony or misdemeanor crime under Chapter 23-7, 22-14, or 22-42;
    • is not a citizen or legal resident of the United States; or
    • is a fugitive from justice.1

    If none of these situations apply, you can still make a plan for your safety. See our Safety Tips page for more information. You can also contact your local domestic violence organization for additional help. You may want to talk to them about whether leaving the area - either long term or for a little while - might help improve your safety. See our SD Advocates and Shelters page to find a local domestic violence organization near you.

    For additional information on gun laws in South Dakota, you can go to the Giffords Law Center website.

    Also, federal laws, which apply to all states, restrict an abuser’s right to have a gun under other circumstances. Go to Federal Gun Laws to get more information.

    1 SDCL §§ 23-7-7; 23-7-7.1
    2 SDCL § 23-7-7.5

    I've read through all of this information, and I am still confused. What can I do?

    Trying to understand both federal and state law can be confusing, but there are people out there who can help you better understand the law and your rights under the law.

    • You can contact the National Center on Protection Orders and Full Faith & Credit to get more information about the firearm laws and how they may apply to you at 1-800-903-0111, ext. 2.
    • You can write to our Email Hotline.
    • You can contact a local domestic violence organization in your area by clicking on our SD Places that Help page.