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.
I think you have been misinformed. "H.R. 822 allows for carry in any state except for Illinois and the state of ones residence." That is from http://gunowners.org/a111411.htm.
In part, this bill appears to be an attempt to repair flawed judicial reasoning, in particular, corrupt application of the Supreme Court's Presser case. The Presser case says states may NOT infringe the RKBA. Federal courts have uniformly applied the Presser case for the opposite, as allowing states to infringe the RKBA. Total, absolute, abject corruption by the Courts - and it is easy as pie to see for anybody who looks.
Back to the subject of the post, see HR 822 - National Right-to-Carry Reciprocity Act of 2011 for links to the text of the bill and Congressional actions.
If your only reason for supporting the law is to give residents of (for example) CA the ability obtain an out of state license so they can carry in CA, then you should be neutral toward or against the bill, because it does not enable that function.
Do you agree or not? If a person goes to jail for armed robbery, for example, then should they have the right to buy a firearm once they get out of jail? If a person has been judged mentally incompetent to stand trial, or if they have mental retardation or seriously diminished mental capacity, then do they have the right to own a firearm?
Then if we can agree that the right to own a firearm should be as restriction-free as possible but still is not an absolute right, then shouldn't the states be the ones deciding when and upon who that right should be restricted and not the federal government?
If someone goes to jail for shooting someone or for taking a gun and sticking up a liquor store or for any other violent crime then I'm not sure I want them to be able to carry a firearm when they get out. You, on the other hand, may disagree and there nothing wrong with that. I may want a person getting a concealed carry permit to go through a training course before being issued the permit. You, on the other hand, may feel that such training isn't necessary and that's fine, too. I may not be comfortable with people being free to bring a concealed firearm into a police station or a football stadium. Again, you may disagree and there is nothing wrong with that. But in any case, if any sort of restriction is to be placed on who can carry a gun and where I'd rather those restrictions were made at the state level and not the federal. This law goes against that.
I agree with you...It has alway been a rub to me that if I want to carry a firearm for lawful self-defensive purposes, that I have a unalienable, moral right to do so as stated in the Second Amendment, that that right is granted by an authority higher than ANY government instituted amoung men (and women) in this country...
Every chance that the Texas legislature tries to reduce, or limit the feduciary responsibility for Texans to obtain this states CHL “license”, I support with the upmost enthusiasm and fervor...
When I had to stop at the border of California in Yuma, and disarm and render the carry piece I had on me usless away from any semblance of readiness, I wanted to throw up...
I think its due time we get in the face of those that want to take away such rights, to those of us that understand and value the gift and defense of life, in the ability to take a life to protect it...
My last statement sounds ironic, but it is a truth we need to embrace, because we already do it everytime we take on the responsibility and more important, to be accountable for our actions when we do exercise our right to keep and bear arms...
The Federal argument to this issue is so simple, they have to do this to make it seem like it is a difficult decision to ALLOW us to utilize a precident to recognize these damn licenses that we HAVE to buy to exercise such a natural moral right...
The opposition knows for a fact that if we do get this commerce clause recognition of these licenses, that the Genie is out of the bottle, and it is very difficult to put it back in if some force of this government feels it is necessary to do so...
The attempt to take back this extention would be the equivalent to reversing the Emancipation Proclamation...Imagine the absolute travesty that would be...And I would fight that effort with my life...
Time to pony up people...We don’t get chances like this, especially with the people running the show these days...
We know without a doubt what Obama would do with this if it crosses his desk...Lets press the issue anyway...Force him to prove to us what we already know...Give whomever is going to defeat this administration some ammunition for the next election cycle...
All hands on deck...This is not a drill!!!
Every man, woman, and responsible child has an unalienable individual, civil, Constitutional, and human right to obtain, own, and carry, openly or concealed, any weapon -- rifle, shotgun, handgun, machinegun, anything -- any time, any place, without asking anyone's permission. - L. Neil Smith. The Atlanta Declaration
Now, in a fully armed society with more people taking personal responsibility for their own protection, you'd have a FRACTION of the people we do today surviving to reach trial. Those adjudicated to be too dangerous, via criminality or mental issues, should be locked up for life. Again, assuming they survive their initial encounter with their intended victim.
Now, stop fighting the Gun Grabbers battles for them by carrying their water with these specious arguments...
Thing is...they don't. They all have the same fundamental criteria: register, and don't be a criminal. The differences stem from varying degrees and tactics for infringing on the fundamental right, and thus are indefensible.
Every state that issues possession/carry permits does so contingent upon, at core, a criminal background check. This is rendered nigh unto moot by the federal NICS check, which does the same thing. Some states may dig into more records in an impassioned attempt to suppress the right. Some states may tack on other criteria such as training (to wit: "The Four Rules" and basic mechanical operation of a point-and-click interface, rendered as complex and time-consuming as possible), background checks (as if some applicant might not know three people willing to vouch for him), usage restrictions (now that he's got it, if he's going to abuse it a few words on paper won't stop him), and other high-horse heavy-handed tactics for discouraging people from an enumerated inalienable right. Fact is, regardless of the differences in licensing, so long as there IS a license there is NOTHING of substance rendering an out-of-state permit inferior to an in-state one.
I have a carry permit for NY and GA. Short of "Constitutional carry", there is no meaningful difference. Both were issued subject to FBI and other background checks, fingerprints included. Both are monitored for legality. Both allow carry/transport of dangerous machines which are, for all practical purposes, fungible. Both regard objects which are already subject to strict commerce regulations. Short of a differing collection of hoops to jump thru to obtain and retain one, there is no practical difference.
And that leaves "Constitutional carry" states. There is no reason Vermont should be left out. Fact is, the whole point of documented licensing for carry/possession is an unconstitutional preemptive presumption of guilt over innocence. While the famous case excusing felons from CCW registration on grounds of 5th Amendment violation was overturned, methinks the premise remains true: save for a vanishingly small margin, anyone who applies for a permit is exactly who should NOT be required to have one, and anyone who should be refused one (i.e.: convicted felons et al) has an enumerated right against self-incrimination - ergo the whole process is pointless. So residents of Vermont, Alaska, and Wyoming who would, as residents elsewhere, have no trouble getting a permit as required (save for malicious suppression of rights) are as normal American citizens due the presumption of innocence, have already been in all likelihood already subject to relevant criminal background checks, and thus as citizens enjoy the right (at minimum) to exercise their RKBA in any state insofar as any licensed resident thereof may, having been extended full faith and credit in their home state's right to possess lawful items obtained in a lawful manner, and carry them in a lawful manner according to the host state's fair regulations.
That a Leftist/socialist/oppressive legal doctrine has been entrenched for a prolonged period does not render it a Conservative value.
Revocation of natural inalienable enumerated rights MUST happen on a per-case adjudication thereof, to wit you have the right until a judge tells you in no uncertain terms that you’ve lost it. What we have now is the reverse: in most states, the right is preemptively denied UNTIL adjudicated as allowed on a per-case basis - this is, of course, despicable.
I'm concerned about that aspect too. As others have pointed out upthread, the thin edge of the federal wedge is a dangerous thing to let in here for the first time, even if the immediate intent is good. I'm left with the conundrum of what to do in cases where individual states are violating a baseline level of civil rights. Two ideas present themselves.
Do nothing. Let the tyrannical states drive away all their worthwhile citizens into the arms of states that treat them like they are the engine driving the success of the state. (See California)
Or if action (as opposed to inaction) on the federal level is the best way to go, maybe do it judicially, by saying the states are violating the civil rights of visitors from other states and that they're not allowed to do that.
Anyway, I do agree that opening the door to the idea that federal legislation on this issue is even potentially legitimate is worrisome. Hard to get back in the box once you let it out.
Not sure, but I don't believe so. I think that arose because the states wanted it and got together and made agreements between themselves to do it, sort of like professional licensure or CCW reciprocity agreements between pairs of states but on a universal level.
Hey, Hey! Don't leave us Zonies out of that elite group!
Sorry, the club is growing too fast for me to keep up - which is a good thing!
Does beg the question of how those states handle visitors packing. A tip sheet would be helpful, if only to say “yes, you can do X” and point out anything we might assume is legal which isn’t (ex.: bar carry legal?).
The rest of us here in California's populous counties are slogging it out in the courts here. It is going to be a long protracted fight.
Anti-gunners love to read a lot into some pretty simple statements from Heller.
Here's what I found:
It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Courts opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
This is a statement which is historically accurate; that is, "concealed weapons prohibitions have been upheld". That statement is not a prediction of what would be decided in a future case.
Here in Breyer's dissent IS a prediction:
But the majority implicitly, and appropriately, rejects that suggestion by broadly approving a set of lawsprohibitions on concealed weapons, forfeiture by criminals of the Second Amendment right, prohibitions on firearms in certain locales, and governmental regulation of commercial firearm saleswhose constitutionality under a strict scrutiny standard would be far from clear.
What Breyer is saying is that a "strict scrutiny" standard, which is the only standard consistent with such a fundamental right, would likely not permit the banning of concealed firearms. Given that there has been no "blood running in the streets" in any of the majority of states which permit concealed carry, it is ludicrous to suggest that any state, or the federal government, could establish a "compelling interest" in banning such carry.
The anti-gunners, including those on the Supreme Court, know full well that Heller and McDonald spell the death knell of gun control in the United States.
Back in 1989, a California Highway Patrolman pulled me over on Hwy 101 north of LA. He had seen me drive through there with Florida plates once before. He started in about needing to have CA plates and DL and was about halfway through writing a big ticket when I handed him my military ID and informed him I was active duty and exempt from his pissant rules. He walked back to his vehicle mumbling to himself for not looking for a DoD sticker on the windshield.
If enough people wise up to what the old Presser case really says, the federal government will face even more loss of confidence and respect.
It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the [2nd amendment] out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think it clear that the [Illinois parade permit laws] do not have this effect.Presser v. Illinois, 116 U.S. 252 (1886)
The federal courts have read this backwards ever since, holding that states MAY prohibit the people from keeping and bearing arms.
Presser stands for the proposition that the right of the people to keep and bear arms, whatever else its nature, is a right only against the federal government, not against the States. The courts are uniform in this interpretation. See, e.g., Thomas, 730 F.2d at 42 (1st Cir.); Peoples Rights Org., 152 F.3d at 538-39 n. 18 (6th Cir.); Quilici, 695 F.2d at 269 (7th Cir.); Fresno Rifle & Pistol Club, 965 F.2d at 730-31 (9th Cir.). Just as Presser had no federal constitutional right "to keep and bear arms" with which to challenge Illinois's license requirement, Bach has none to assert against New York's regulatory scheme. Under Presser, the right to keep and bear arms is not a limitation on the power of States.Bach v. Pataki, 289 F.Supp.2d 217 (N.D.N.Y. 2003)
I would emphatically NOT trust a federal court to get a RKBA case correct. Scalia screwed the pooch on the Heller case, creating a presumption of constitutionality for what he claimed were long standing prohibitions; but the "long standing" part is a figment of his imagination. While pretending to uphold it, Scalia actually reversed another old RKBA case, Miller.
Either Congress corrects this (and this pseudo reciprocity is not the way to fix corrupt courts), or the people admit the government is boss. I think the latter has been in place for generations, and it's all downhill from here. The Congress isn't on the people 's side either, it's a self-serving organization that is beyond "out of control."
All free persons have the right to keep and bear arms; statutes, regulations, ordinances, and other rules whose purpose or effect is to prevent or impede the free exercise of that right are illegitimate.
That having been said, not all persons are free. Children are subject to the will of their parents, convicted criminals serving their sentences are subject to the will of the state, and persons adjudicated incompetent are (to a significant degree) subject to the will of their guardians. The carriage of arms by such people may be legitimately restricted by those with authority over them.
If a person has authority over a certain building or geographic area, and if that person may legitimately expel visitors whom he doesn't like for any reason he sees fit, such a person could if so inclined expelling people found to be in possession of firearms. The person could also expel people who refuse to be searched for firearms or anything else he doesn't like. A person without the authority to expel arbitrary visitors, however, would not have any special authority to expel visitors carrying firearms.
I'd strike the words "carry a firearm when they". Some individuals will pose a danger to the public if they not kept under very close supervision (as in a prison), whether or not they are legally allowed to acquire firearms. Other individuals will not pose a danger to the public, whether or not they are legally allowed to acquire firearms. While there are a significant number of people who don't pose much a danger to the public without firearms, but would pose a danger if they had them, the vast majority of those people, while legally allowed to buy a gun, are disinclined to do so; there is thus no need to restrict them.
Thus, even if rules restricting firearm ownership by convicted felons would be constitutionally justifiable, it's unclear that any legitimate good they accomplish would outweigh the illegitimate harm caused when they facilitate the denial of the rights of people who are not accused of having done anything illegal, nor of being incompetent to handle their own affairs.