Skip to comments.Gun Rights vs. States’ Rights
Posted on 11/14/2011 2:46:06 PM PST by neverdem
Evidently, the House is likely to pass a bill that would require states to respect concealed-carry permits issued in other states — even if the traveler’s home state has very different criteria for awarding a permit.
Concealed carry is a good idea, and so is reciprocity when states enact it voluntarily — but this is a bad idea, as it goes beyond the proper functions of the federal government. The stated constitutional justifications(PDF) for the law are to protect the Second Amendment (as applied to the states through the Fourteenth Amendment), to protect the right of interstate travel, and to protect interstate commerce, but none is even slightly convincing.
As the Supreme Court noted in its Heller decision(PDF), bans on concealed carry do not run afoul of the Second Amendment — they have a long history in the U.S., and courts have typically upheld them under the Second Amendment and state analogues. Thus, states have every right to decide the criteria by which they’ll grant permits (if they grant them at all), and to decide which other states’ permits they’ll respect. In fact, the exceptions written into the law itself — states that completely ban concealed carry don’t have to respect other states’ permits — show that no one takes this argument seriously; if carrying a gun in a state where you’re not licensed to carry is a Second Amendment right, why does it stop at the borders of the most anti-gun states?
While the Supreme Court has recognized a right of interstate travel, surely it doesn’t protect carrying items you’re not licensed to carry in the states you’re traveling to. And while Congress is notorious for abusing the Commerce Clause, I’m not seeing how concealed-carry permit holders’ not being able to carry while traveling “substantially affects” interstate commerce.
The only other justification for the law I can even think of is the “full faith and credit” clause, which requires states to respect each others’ “public acts, records, and judicial proceedings” — but this case would seem to fall under the “public-policy exception.”
And the Constitution aside, this is just bad policy from a conservative perspective, as it tramples on states’ rights. It’s almost an inverse of the Defense of Marriage Act — rather than allowing states to make their own laws and disregard licenses granted by states with different policies, it informs states that out-of-state travelers don’t have to play by their rules.
UPDATE: A commenter points me to Dave Kopel’s defense of the law(PDF). It doesn’t convince me the law is constitutional in the true sense, but it does convince me the law would likely hold up in court — apparently, once a gun moves in interstate commerce, the federal government can regulate it any way it pleases, under Supreme Court precedent.
UPDATE II: Other commenters make a good case for the “full faith and credit” clause. Its second sentence: “And Congress may by general Laws prescribe the manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof.” So far as I can tell, not much has been written about the limits on this power of Congress’s. (Here, they have exercised considerable discretion in declaring that all concealed-carry licenses are valid in all states that respect such licenses, no matter how restrictive or liberal their criteria for granting them, and yet are not valid in states that don’t grant such licenses at all.) I’m surprised that the law’s drafters didn’t invoke this clause explicitly, though I still tend to think that states themselves should decide whether other states’ permits are granted according to acceptable criteria.
That's the way it was throught the first century of American freedom. The first law limitiong the ownership/carry of firearms by former prisoners who had paid their debt to society was instuted in California around the 1920s. It's a relatively recent concept.
A few states don't require any permit for carrying arms any way one pleases. There's no "thing" (compared with drivers license & marriage/birth record) to give full faith and credit to; for people who live in VT, AK, AZ and WY.
Getting the feds involved will lead to trouble. The federal government is as dishonest and untrustworthy as government can get, when it comes to the RKBA.
Open or concealed. no permit needed- it's a right.
At least it is in Wyoming. And in some other free states- four total now, I believe.
There might be another problem here... Is the guy in Vermont, Arizona, or Alaska who is from Illinois not allowed to carry by this travesty?
If you remember the vote on the Thune Amendment, a vote on national reciprocity for concealed carry privileges is going to put a bunch of rats in the Senate in a bind.
No, reciprocity is an “affirmative agreement”, which means that citizens can enjoy the greater benefit between states, not restrictions.
This was recently at issue in Arizona, as no permit of any kind was required, but the state needed to provide a permit to anyone who wanted one to prove in another state with a reciprocity agreement with Arizona that they didn’t need a permit, even if in that state they needed a permit.
Find me ANY other time you found the Congress Clause to conflict with any federal notion, particularly if it concerns some liberal statist wet dream, and I'll take your "article" seriously. Otherwise, STFU, statist scum!
Those prohibitions aren't exactly analogous to a licensing scheme. Even so, yes, the case can and has been made at least WRT felons that those rights SHOULD be automatically restored with the rest of their civil rights.
Over 10% of the US population has no access to concealed carry. This is in part a way to knock those barriers down when Californians will be able to carry in CA with an OR or NV non-resident permit as this bill allows.
The Act relies on the commerce clause and the “right to travel” as its constitutional justification. I admire the goal. But do we really think it is within the enumerated powers of Congress? I think it could be justified as a Congressional protection of the right to keep and bear arms. But the congress critters avoided that for some reason.
“’And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.’ It sound to me exactly like the proper functions of the federal government under the US Constitution.”
Good argument. Too bad congress didn’t write that into the Constitutional justification.
Nor a "compelling state interest".
Of course. Just like your License to vote, aka poll tax, or the license your minister has to get before he can give a sermon.
If we just followed the Constitution, we would not need such a law.
...shall not be infringed.
Needing a permit to carry a weapon is an infringement. Being unable to open carry is an infringement.
Its unconstitutional for States to have these kinds of laws, let alone Congress enacting one.
It's unconstitutional for the FEDERAL government to make such an infringing law. STATES are to have reserved to them the several rights not reserved or declared by the federal government. For example, while CONGRESS cannot make a law establishing a particular religion, any state can (and many have) establish or encourage a particular religion over another.
Right, you’ve got the right to interstate travel, but not interstate self-defense? Liberalism is a mental disorder.
They need to during reconciliation. That’ll fix it.
Try Utah or Florida.
Thanks for the ping!
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