Alan Gura: Defeat of Thune amendment runs afoul of Constitution's full faith and credit clause

The Jurist ^ | July 28, 2009 | Alan Gura

[neverdem]

Alan Gura [Partner, Gura & Possessky, PLLC]: "Gun rights opponents at last have cause to rejoice. Only 58 members of a lop-sided Democratic-controlled Senate approved of a provision mandating that states give full faith and credit to each other's gun-carry permits. The laws of forty-eight states, at least in theory, allow their peaceable citizenry to carry guns in public for self-defense. Forty of these states either require no license to do so, or issue such licenses as a matter of routine upon meeting basic qualifications. Even in the small minority of hold-out states, gun carry licenses are often available depending on one's residence. Senator Boxer's Marin County neighbors cannot carry a gun to defend themselves, but her constituents in Fresno and Bakersfield suffer no such disability if they dot their i's and cross their t's.

However, when permit holders travel across state lines, the validity of their permits – and thus their ability to exercise their right of self-defense – depends upon a crazy-quilt patchwork of ever shifting reciprocity agreements hammered out among the states. This is precisely the sort of problem the Constitution empowers Congress to solve, giving it the authority to have states extend "full faith and credit" to each others' public acts. Ensuring that Americans do not trip on internal borders is a basic feature of our national existence. But gun rights opponents, unsafely esconced in their shrinking gun-free fortresses, adamantly oppose mingling with those who exercise their Second Amendment rights – nevermind the fact that gun-carry permitees constitute an incredibly law-abiding population, and that the liberalization of gun carry laws has correlated for the most part with substantial declines in violent crime.

Alas, this celebration will last no longer than the denial about the meaning of the Supreme Court's decision in District of Columbia v. Heller [PDF file]. Heller confirmed that most licensing regimes regulating the carrying of handguns are not unconstitutional – but it also signaled the end of hyper-restrictive laws in the minority of holdout states which print handgun carry licenses on paper made of unobtainium. Rejecting the argument that "keep and bear arms" was a unitary concept referring only to a right to possess weapons in the context of military duty, the Supreme Court held that to "bear arms," as used in the Second Amendment, is to "wear, bear, or carry...upon the person or in the clothing or in a pocket, for the purpose...of being armed and ready for offensive or defensive action in a case of conflict with another person." Twice more, the Court referred to the right to "keep and carry arms." The Court then helpfully noted several exceptions that prove the rule. Explaining that this right is "not unlimited," in that there is no right to "carry any weapon whatsoever in any manner whatsoever and for whatever purpose," the Court confirmed that there is a right to carry at least some weapons, in some manner, for some purpose. The Supreme Court then listed as "presumptively lawful" "laws forbidding the carrying of firearms in sensitive places," confirming both that such "presumptions" may be overcome in appropriate circumstances, and that carrying restrictions are not presumptively lawful in non-sensitive places.

The Supreme Court also offered that the concealed carrying of weapons may be prohibited, and for this proposition it had ample precedential support. A close reading of Heller, and of the cases upon which it relied, reveal that concealed carry bans are lawful only where open carrying is permitted, lest the right to carry a gun be completely abrogated. In an earlier time, where the carrying of guns was commonplace, concealment of one's firearm was viewed as unmanly at best, most probably sneaky. Hence the constitutionality of mandating that guns be carried openly. But today, social norms often prefer that guns be concealed. Post-Heller, hold-out states may still maintain concealed carry bans should they allow open carrying. This is a choice they are unlikely to make, but one they will be forced to confront."

Alan Gura was lead counsel for the respondent in District of Columbia v. Heller. He is currently spearheading a challenge to the constitutionality of policies that deny law-abiding individuals gun carry permits in California. Sykes v. McGinness, U.S. Dist. Court, Eastern Dist. of Calif. No. 09-01235.

[Jo Nuvark]

So? Running afoul of the U.S. Constitution
hasn’t held Obama back one little bit.

[Renegade]

Alas, this celebration will last no longer than the denial about the meaning of the Supreme Court’s decision in District of Columbia v. Heller [PDF file]. Heller confirmed that most licensing regimes regulating the carrying of handguns are not unconstitutional – but it also signaled the end of hyper-restrictive laws in the minority of holdout states which print handgun carry licenses on paper made of unobtainium.”

If this is the case , why the hell has no one in the People’s Republic of New Jersey challenged the states “may” clause which in effect means “ won’t” issue a concealed weapons permit . I know people who work in gun shops that couldn’t get a concealed permit and were told if you have a problem call a cop .

[Lurker]

Justice Scalia was crystal clear in the Heller decision. Concealed carry can be banned, and open carry can be banned. Both cannot be banned.

[Oldpuppymax]

Since when has the Constitution mattered to the left? “Married” homosexuals get the full faith treatment, but not gun owners.

[Renegade]

In New Jersey try to open carry ! In New Jersey concealed permits are scarcer than republicans

[neverdem]

Weapons permit vote missed mark (Thune Amendment)

Mayors offer wise perspective on concealed guns (barf alert)

Up in arms over gun: Replica rifle has Brooklyn man at odds with cops

Obama Administration Begins Opposition To States Claiming Sovereignty And Gun Rights

Ahern signs new gun control act into law (Ireland bans handguns to halt "gun culture" emergence!) My grandparents were Irish. Woe is me.

Some noteworthy articles about politics, foreign or military affairs, IMHO, FReepmail me if you want on or off my list.

[SunkenCiv]

Thanks neverdem.

"What Constitution? Die Infidels!"

[Alamo-Girl]

Thanks for the ping!

[Joe Brower]

[Pistolshot]

This is precisely the sort of problem the Constitution empowers Congress to solve, giving it the authority to have states extend "full faith and credit" to each others' public acts.

Although I believe Alan is going to be one of the more prominent pro-2A lawyers for the next few decades, I believe he misses a vital point in his statement.

When you give Congress ANY 'authority', you subject it to abuse by the anti-gunners.

Say the Thune Amendment was made into law. Now, some anti-gun zealot can use it to put uniform requirements to be met by the states on a national level, including records of permit holders and a set of stringent qualifications that no one can meet, thereby effectively eliminating CCW.

While the variations in qualifications for permits varies from the states, it is put upon the State departments of public safety to resolve those differences.

The Feds have screwed up almost every and any gun law passed.

[Eagle Eye]

Or tax it out of existence.

[neverdem]

Say the Thune Amendment was made into law. Now, some anti-gun zealot can use it to put uniform requirements to be met by the states on a national level, including records of permit holders and a set of stringent qualifications that no one can meet, thereby effectively eliminating CCW.

While the variations in qualifications for permits varies from the states, it is put upon the State departments of public safety to resolve those differences.

The Feds have screwed up almost every and any gun law passed.

Then it's open carry. See how they like them apples.

[neverdem]

Or tax it out of existence.

You can't tax a right. The poll tax is history.

[Eagle Eye]

There is a tax on automatic fire weapons, is there not?

[neverdem]

There is a tax on automatic fire weapons, is there not?

A lot of questionable laws were made before D.C. v. Heller. All of it is now up for litigation. IIRC, all you need are plaintiffs with standing.

[budwiesest]

All this time I thought 'full faith and credit' had to do with the money they printed (and the borrowing that goes with it).

Hey, maybe the states can decide which dollar denominations they'll accept as 'currency'. Or, maybe they can decide which stupid federal regulations they'll comply with. You know, the pick-and-choose republic the founders must have had in mind when they wrote the Constitution.

When it comes to the 2A, the states treat it like a bastard child in light of the language that comprises it. Amazing.

Liberals, be they justices on the SC or mere senators and governors alike, go balls-on-chin for the State when the issue is individuals with a right vs. empowering government. This hasn't come without costs (though no one will ever be able to accurately tabulate them) and has taken a cultural toll on society that we may never recover from.

The Government is completely out-to-lunch on the issue of armed citizens. The carnage and death wreaked on the public by such tunnel vision is probably higher than had the Government itself gone out and shot innocent people at random- say fifty a day- over the last fifty years. In effect, gangs and thuglies are doing their bidding. How's that for a 'government of the people'?

[Durus]

All this time I thought 'full faith and credit' had to do with the money they printed (and the borrowing that goes with it).

It's pretty clear what it was intended to do and money has nothing to do with it.

Article IV Section 1. Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.