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Kopel: 14th Amendment gives Congress power to pass concealed carry reciprocity
Greely Tribune ^ | 17 January, 2017 | David Kopel

Posted on 01/18/2018 8:10:53 AM PST by marktwain

David B. Kopel

The House of Representatives recently passed the Concealed Carry Reciprocity Act of 2017 with bipartisan support. The act would allow people eligible to carry a concealed firearm in their home state to carry in other states, as well.

Opponents contend the act violates federalism. Actually, the act is well within congressional powers under the 14th Amendment. That amendment was enacted specifically to give Congress the power to act against state infringements of national civil rights.

Section one of the 14th Amendment forbids states to violate civil rights. Section five of the amendment grants Congress "the power to enforce, by appropriate legislation, the provisions of this article." Enacted during reconstruction, the 14th Amendment was a remedy to ex-Confederate states denying freedmen the right to arms and other civil rights.

One of the civil rights protected by Concealed Carry Reciprocity is the right to interstate travel. It is "a virtually unconditional personal right, guaranteed by the Constitution to us all," the Supreme Court said in Sáenz v. Roe (1999). The Sáenz court explained that travelers have the "right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second state."

Yet some states, such as New Jersey, do not allow nonresidents to apply for carry permits, and do not recognize permits issued by other states. The penalty for unlicensed carry is a mandatory sentence of at least 3.5 years in prison. New Jersey thus treats interstate travelers as unfriendly aliens.

New Jersey's policy is especially unfair because travelers are especially vulnerable to crime. Travelers, including tourists, often carry large sums of money, and may be unfamiliar with the area they are visiting, not necessarily knowing the safest routes to take when walking.

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The 14th Amendment grants Congress the power to enact a remedy against state mistreatment of interstate travelers.

Another national civil right that is protected by the Reciprocity Act is the Second Amendment right to bear arms. As the Supreme Court wrote in D.C. v. Heller in 2008, "the inherent right of self-defense has been central to the Second Amendment right." Thus, the amendment guarantees "the individual right to possess and carry weapons in case of confrontation."

Like other constitutional rights, the right protected by the Second Amendment is not limited to one's state of residence. The 14th Amendment made the Second Amendment (and most of the rest of the Bill of Rights) directly enforceable against the states. Coloradans must be free to practice their religion in Utah. Ohioans' free speech must be protected in Michigan. North Dakotans must be free from unreasonable searches in South Dakota. And Idahoans' right to bear arms must be recognized in Oregon.

In Heller, the court suggested that concealed carry is not part of the Second Amendment right. The court cited with approval several 19th century state cases that upheld concealed carry bans because open carry was still lawful. However, some states make it nearly impossible for visitors to bear arms lawfully in any manner at all.

For example, Illinois prohibits open carry, does not honor concealed-carry permits from any other state, and allows residents of only four other states to apply for an Illinois permit — effectively prohibiting the residents of 45 states from bearing arms within its boundaries.

The opponents of the Reciprocity Act do not argue that the bill should protect open carry rather than concealed carry. The opponents prefer wholesale denial of the exercise of the right to bear arms in any manner.

In general, courts are deferential to the means that Congress chooses to exercise its 14th Amendment powers against state intrusions on civil rights. As with similar congressional powers under the 13th Amendment (banning slavery) and the 15th Amendment (voting rights), Congress can prohibit state actions even when the Supreme Court has held that such actions are not per se violations of the Constitution. For example, the Supreme Court upheld literacy tests for voters, as long as the tests were administered fairly. Yet when Congress's Voting Rights Act of 1965 banned literacy tests, the court upheld Congress's discretionary exercise of its power.

Even if a court were to hold that the Reciprocity Act is not a proper enforcement of the Second Amendment, the act would still be valid as enforcement of the right to interstate travel.

Moreover, the Reciprocity Act also is supported by the same jurisdictional predicate as many other federal gun control laws: namely, that the firearm in question was once sold or transported in interstate commerce. This is not really consistent with the original meaning of the Interstate Commerce Clause. But if the Reciprocity Act were held to exceed Congress' commerce powers, then much of the federal Gun Control Act would also be unconstitutional — such as laws that ban a person today from possessing a gun just because the gun was sold in interstate commerce four decades ago.

In short, whether you prefer that the Constitution be interpreted based on modern precedents, or based on original meaning, Congress has the discretion to pass the Reciprocity Act.

— David Kopel is research director at the Independence Institute, a free market think tank in Denver. Follow him on twitter @DaveKopel. Joseph Greenlee is a fellow at the Millennial Policy Center in Denver.



TOPICS: Constitution/Conservatism; Culture/Society; Government; News/Current Events
KEYWORDS: banglist; concealedcarry; reciprocity; secondamendment
Excellent article on the Constitutionality of national reciprocity.

I did not see a copywrite, I beleive it is taken from the Independence Institute.

1 posted on 01/18/2018 8:10:53 AM PST by marktwain
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To: marktwain

Great article; thanks for posting it!


2 posted on 01/18/2018 8:19:56 AM PST by WildHighlander57 ((WildHighlander57, returning after lurking since 2000)
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To: marktwain

Fat lot of good that does NJ residents where it is next to impossible to even obtain a carry license unless you are an ex-cop or security person. The NRA didn’t help me so I don’t send them dues anymore.


3 posted on 01/18/2018 8:24:24 AM PST by New Jersey Realist ( (Be Nice To Your Kids. They Will Pick Out Your Nursing Home))
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To: New Jersey Realist

Change your state legislature first.


4 posted on 01/18/2018 8:32:07 AM PST by Wizdum (Buckle up! It's going to be one hell of a ride.)
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To: marktwain

It is time for Congress, now the Senate, to take up and pass the national reciprocity bill and put it on Trump’s desk for signature. Take a break from immigration drama and do this today! Yes, please.


5 posted on 01/18/2018 8:33:45 AM PST by Reno89519 (PRESIDENT TRUMP, KEEP YOUR PROMISES! NO AMNESTY AND BUILD THAT WALL.)
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To: New Jersey Realist

Fix your state. For the rest of us, your state should not take away our 2nd amendment rights. Congress needs to preempt this, maybe uses civil rights investigations and prosecutions to protect our civil rights, which include the 2nd amendment. Hey, someone wake up Sessions.


6 posted on 01/18/2018 8:35:37 AM PST by Reno89519 (PRESIDENT TRUMP, KEEP YOUR PROMISES! NO AMNESTY AND BUILD THAT WALL.)
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To: marktwain

So let’s have a vote.


7 posted on 01/18/2018 8:37:45 AM PST by 1Old Pro
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To: marktwain

All gun control laws violate the snd amendment.


8 posted on 01/18/2018 8:48:10 AM PST by fella ("As it was before Noah so shall it be again,")
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To: marktwain

Fork the State. Fork registration. The 2nd Amendment is clear. Anyone and every one carries. If fired upon, return it.

The Constitution doesn’t require permits or licenses for any other rights under the first ten amendments.


9 posted on 01/18/2018 8:52:38 AM PST by onedoug
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To: onedoug
The Constitution doesn’t require permits or licenses for any other rights under the first ten amendments.

Agree, but not all states respect that, and you can land in jail. That being said, I'd rather be judged by 12 than carried by 6.
10 posted on 01/18/2018 8:54:59 AM PST by TexasGunLover ("Either you're with us or you're with the terrorists."-- President George W. Bush)
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To: marktwain
New Jersey thus treats interstate travelers as unfriendly aliens.

Ha! That's a laugh since 'unfriendly aliens' to New Jersey are given free medical care and a host of other services at the expense of taxpayers.

It's the guns baby. It's all about the guns.

11 posted on 01/18/2018 9:04:16 AM PST by Bloody Sam Roberts (Ban pre-shredded cheese now! Make America Grate Again.)
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To: Wizdum

“Change your state legislature first.”

Ha ha ha! You really think that that’s going to happen in blue states? I guess all the DREAMERS aren’t illegals.


12 posted on 01/18/2018 9:20:41 AM PST by vette6387
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To: WildHighlander57

This bill is a great goal to shoot for!


13 posted on 01/18/2018 10:36:36 AM PST by 2harddrive
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To: marktwain

It’s not a 14th Amendment issue, it’s a 10th Amendment issue. The Supreme Court has given states the right to enact “reasonable” restrictions on firearms.


14 posted on 01/18/2018 10:48:58 AM PST by DoodleDawg
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To: marktwain
David Kopel is an excellent 2A scholar.

...I beleive it is taken from the Independence Institute.

Likely, he is a fellow there with Jon Caldara.

15 posted on 01/18/2018 10:57:52 AM PST by MileHi (Liberalism is an ideology of parasites, hypocrites, grievance mongers, victims, and control freaks.)
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To: DoodleDawg
The Supreme Court has given states the right to enact “reasonable” restrictions on firearms.

The Supreme Court "gives" rights?

I'll think I'll go with Kopels expertise in this area.

16 posted on 01/18/2018 11:03:09 AM PST by MileHi (Liberalism is an ideology of parasites, hypocrites, grievance mongers, victims, and control freaks.)
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To: MileHi
Fair enough. How about the Supreme Court has ruled that the 10th Amendment gives states the power to enact "reasonable" restrictions on firearms? Happy now?
17 posted on 01/18/2018 11:06:48 AM PST by DoodleDawg
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To: TexasGunLover

I’d like to think that I could make that Constitutional argument. Otherwise I’d appeal it as far as I could.

Article IV & VI.


18 posted on 01/18/2018 11:25:07 AM PST by onedoug
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To: DoodleDawg

I don’t know that making any form of carry outside the home, especially for visitors, virtually impossible is “reasonable”.


19 posted on 01/18/2018 11:45:19 AM PST by MileHi (Liberalism is an ideology of parasites, hypocrites, grievance mongers, victims, and control freaks.)
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To: MileHi
I don’t know that making any form of carry outside the home, especially for visitors, virtually impossible is “reasonable”.

I don't disagree with you in principle, but it is a matter for the states and I'd rather leave it with them. If the federal government can mandate that states accept other state's concealed carry then what's to stop them at some future date from mandating what would be required to qualify for a CCW permit?

20 posted on 01/18/2018 12:17:06 PM PST by DoodleDawg
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