Gun Rights vs. States’ Rights

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.

I agree 100% with the notion that gun control legislation is a state’s power, not a federal power. The only exceptions I can think of off the top of my head are:

1: Importation of foreign manufactured firearms; not parts, but fully assembled pieces.
2: Denial of rights in all 50 states to people convicted of federal crimes. States should be able to nullify this on a case by case basis.

There is a third instance that I am not 100% sure about and that is the interstate commerce issue. Personally, I think if a state wants to allow or ban firearms sold from other states that’s their business. I am not solid on how the interstate commerce clause (as interpreted constitutionally, not in the liberal manner it is today) would affect these types of transactions.

So shouldn't that include the right to decide that a person convicted of a violent crime shouldn't be trusted with a firearm?

Indeed it would, if such restriction were specified as an explicit part of the sentence for the crime. That's not how such restrictions are usually imposed, however.

Indeed it would, if such restriction were specified as an explicit part of the sentence for the crime. That's not how such restrictions are usually imposed, however.

Such restrictions are specified in state law. In my state anyone convicted of certain specific felonies within a set prior period of time cannot own a gun. Anyone convicted of a felony involving involving a gun cannot own a firearm period. Why should another state's laws override ours?

Then why have any laws at all since a person inclined to criminality isn't apt to follow them anyway?

Among other things, to indicate which people the government may legitimately imprison for the purpose of protecting the reset of society.

And if they decide it's fine with them for their 5 year old to pack a Glock to day school then the rest of us just need to smile and say, "Ain't that cute?"

A person who observes a five-year-old doing something that they would not expect a parent would permit may in some cases reasonably attempt to uphold what they reasonably believe to be the will of the parent. In practice, this will often mean that minors will be prevented from doing a lot of things in many situations when their parents are not present. What is important to note, however, is that such restrictions exist for the purpose of upholding the presumed will of the parent; evidence which would overcome the presumption voids the restriction.

Wouldn't that require some sort of standard to judge them by? If so, then shouldn't the state decide that and not the feds?

The standards for judging incompetence are set by the states. My question remains: is there any reason that the standard of proof required to disarm someone indefinitely should be any lower than the standard of proof required to find someone incapable of managing his own affairs?

I wasn't saying they should. Federal statutes, however, forbid firearm ownership by anyone convicted of a crime for which they could have received 366 or more days in prison, as well as by many people who aren't even alleged to have committed any crime but who have sufficiently vindictive ex-spouses.

Then by your reasoning a State can pass laws limiting my free speech or allow cops to enter my home without search warrants or probable cause. The amendments also apply to the States. Anything not outlined in the constitution is left to the States and not the federal government to decide.

“STATES are to have reserved to them the several rights not reserved or declared by the federal government.”
States agree to uphold the US Constitution prior to statehood. Which means the states cannot pass laws that violate the US Constitution. Gun control laws violate the right to bear arms.

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