CHARLESTON, S.C. (WCSC) - More cities and counties are enacting ordinances to require masks. While many people are applauding the decision, others are saying it goes against their Constitutional rights.
Tom Winslow is an attorney at Goldfinch Winslow Law Firm, and while he cannot expressly point to a right listed in the Constitution to back the aforementioned claim, he does say local ordinances requiring masks run into the issue of preemption.
If a state makes a law then a lower government, like a city or county, cannot make another law that conflicts with the higher government’s law.
“It’s not about me,” Winslow said. “It’s purely about the law and what the law says you can and cannot do.”
He is a referring to a state law passed in 1962 that prohibits anyone over the age of 16 from wearing a mask in public. South Carolina Attorney General Alan Wilson has already addressed this issue saying the law was intended to prevent members of Ku Klux Klan from “concealing their identities while committing acts of terrorism.”
However, that intention is not expressly written in the law.
“It was designed in regards to that concept but it was just used two or three weeks ago against someone trying to rob a bank wearing a mask,” Winslow said.
He argues selectively choosing which laws to enforce and to which cases opens the door for bigger issues.
“When you start having selective enforcement that’s when you get into situations of discrimination,” Winslow said.
To address the problem, the state legislature could amend the law to make it more specific or do away with it all together. It could also be addressed by a court decision that narrows the interpretation of the law to not apply to a public health crisis.
However, Attorney General Wilson says the 1962 law does not apply because people wearing mask to stop the spread of the coronavirus are not trying to conceal their identity.
His positions is extremely clear.
Wilson says local governments have the authority to require the public to wear masks. He says any other laws that may create conflicts will be settled in court and made inapplicable.