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.
IIRC, the essay got 75 comments at the source.
I am concerned about FedGov exercising powers of any kind related to gun ownership. Although it is wonderful to enforce protection of an absolute right, the power to enforce is the power to violate. The unique thing about the Feds is that once they violate a right there is no legal recourse (one could obviously engage in armed rebellion, but...). So I’m not quite so thrilled with pushing this kind of statute forward because that kind of latitude in the hands of the left is a perilous thing indeed.
Congress shall make no law...
“Congress shall make no law....”
Which some 95% of the time, is a pretty good guideline.
The other 5% of the time, they should listen to the constituents who sent them there, and treat the legal code accordingly.
A proliferation of laws, regulations, and arcane specific bills that almost qualify for a “bill of attainder”, a gotcha for certain persons, making their very presence, whether they have committed some crime or not, anathema for the authorities.
The Tenth Amendment is in place for a reason.
That has been my concern as well. Get a leftist SCOTUS and they cancel everyone’s CCW in one fell swoop.
The carrying of firearms should not be licensed in the first place, regardless of how it’s done, precedent be damned.
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.
Then would you also say that laws forbidding convicted felons from owning a firearm or young children or the mentally impaired from owning firearms would be unconstitutional as well? Or laws preventing the carrying of firearms into court houses or police stations or schools?
Such are the perils of using the Enemy’s own weapons against them.
I have been told that, while “concealed carry” requires permission, “open carry” does not. Does anyone know if this is true?
Can Wyatt Earp strap on a 6-shooter and walk down main street as long as it’s open for all to see?
Let's leave aside the Second Amendment for a moment and examine 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. (emphasis mine)
It sound to me exactly like the proper functions of the federal government under the US Constitution.
Is there some federal law that says Tennessee has to recognize my Georgia drivers license?
Just a curious thought...
The law varies state by state. Open carry is illegal in some locations, even (especially) for those who are licensed to carry concealed.
As for the premise of the OP, I agree the federal law is a bit of a joke, in that it does not require a state to admit carry - if a state forbids carry, then (goes the federal law), those are the terms that apply, period. And the law does noting to make uniform the regulations that pertain to "licensed" carry.
Federal second amendment jurisprudence is broken at a fundamental level, and not many people in the government dare to admit it. Lots of precedents built on utter falsehoods, rendered by judges, and Congress did/does squat about it.
Not any statutory law, that I know of. The "full faith and credit" relating to marriage is obtained via court rulings. E.g., see difference in age requirements. But a legally married 13 or 14 year old is still married after moving to a state with a 16 or 18 year age requirement.
I saw what was going to happen from a long way off.
Reciprocity agreements between the states are a states prerogative, and having the federal government try to force reciprocity is inviting the camel into the tent.
Just today, in the senate, a bill was introduced to force reciprocity with respect to homosexual marriage. The Democrats figure on playing that off against the Houses gun reciprocity bill. “You vote for ours and we’ll vote for yours.”
So sorry, it’s just a bad idea to invite the federal camel into the tent. As much as you might like the convenience of camel milk, you’ll have to deal a lot more with camel poop.
I don't think concealed carry is (or should be) a matter of public records; like marriage is. The default condition is a right to keep and bear arms. Do you need a license to practice religion? Speak? Publish? Petition the government?
I was wondering, because out here in farm country, especially this deer season time of year, folks walk around openly better armed than some foreign armies.
And still the deer elude them and wreck my car! LOL.
No, Yes, No; with reservations, Yes, Yes and Yes.
Plus, unrelated to SoJoCo’s question I HATE the title of this thread. People have rights, states have powers, and inanimate objects have...well, nothing they just exist.
It is the full faith and credit clause. Otherwise you would need to obtain a driver’s license whenever you transit a state. I am sure that if California thought that they could get away with it they would require a transit permit. They already force people who drive in California a certain amount of time to obtain a California license plate. Yes, if you live in Arizona, which requires an Arizona license for vehicle owned by residents and used on it’s roads, and work and drive in California a certain amount, you must obtain a California license plate; but not a driver’s license. Even California won’t try that. So I can see this being appropriate.
I don’t agree. Its a stupid argument. Under the 14th Amendment, Congress has the undisputed power to pass a federal law to ensure the unimpeded exercise of the rights guaranteed to Americans and that includes the 2nd Amendment. States’ rights are not absolute. And Congress has the power to ensure all states grant reciprocal treatment to the laws, judicial proceedings and records of other states. Robert Verbruggen thinks the only group of people whom states should be permitted to discriminate at will against are gun owners. Either Congress can ensure every one can freely exercise their rights or there’s no point to the Constitution. By the way, states’ rights has always been a hoary doctrine used to justify slavery and then the wholesale denial of constitutional rights to certain Americans based on their race. It won’t wash - not in this day and age.