Free Republic
Browse · Search
News/Activism
Topics · Post Article

Skip to comments.

Gun Rights vs. States’ Rights
National Review ^ | November 10, 2011 | Robert VerBruggen

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.


TOPICS: Constitution/Conservatism; Crime/Corruption; Editorial; Politics/Elections
KEYWORDS: banglist; statesrights
Navigation: use the links below to view more comments.
first previous 1-2021-4041-6061-8081-89 next last
To: supercat

What you are saying then, I think, is that the right to bear arms is not an absolute right. But you seem to prefer the arbitrary whims of some unidentified ‘guardian’ to a set policy. If any restrictions are to be made then I prefer that they be made at the state level and not the federal level. As the 10th Amendment provides.


61 posted on 11/15/2011 3:54:56 PM PST by SoJoCo
[ Post Reply | Private Reply | To 59 | View Replies]

To: supercat

So...you’re in the ‘let a felon buy a gun regardless’ category? That’s your right, and if the people in your state agree with you then I don’t have a problem allowing you to set your laws whatever way you choose. But if the people in my state decide that they don’t want to trust those who had been convicted of violent crimes to own a gun when they get out, or allow a person diagnosed with mental issues to own a gun, or allow a 5 year old to buy a gun even if his guardian says it’s OK, then I believe we should have the right to do so. And I don’t want the federal government to say that some other state can override our laws.


62 posted on 11/15/2011 4:00:44 PM PST by SoJoCo
[ Post Reply | Private Reply | To 60 | View Replies]

To: SoJoCo

If a person is inclined to criminally harm others, forbidding that person from possessing some particular kinds of weapons isn’t apt to make much difference. If a criminal who can’t be trusted with a weapon would be inclined to buy one, why is that person being allowed on the street at all?

With regard to children, their parents should be the ones to determine what they are allowed to have. With regard to those who are mentally incompetent, is there any reason that the standard of proof required to disarm someone should be any lower than the standard of proof required to find them incapable of managing their own affairs?


63 posted on 11/15/2011 4:16:18 PM PST by supercat (Barry Soetoro == Bravo Sierra)
[ Post Reply | Private Reply | To 62 | View Replies]

To: SoJoCo
But you seem to prefer the arbitrary whims of some unidentified ‘guardian’ to a set policy.

Subject to Fourteenth Amendment protections, states are free to set their own standards with regard to how people are adjudicated mentally incompetent, and how the affairs of such persons are managed. It would seem that the legal standard for finding someone sufficiently mentally incompetent that they cannot be allowed to do things like make their purchasing decisions should be pretty similar to that required to disarm them on the basis of mental incompetence.

64 posted on 11/15/2011 4:22:45 PM PST by supercat (Barry Soetoro == Bravo Sierra)
[ Post Reply | Private Reply | To 61 | View Replies]

To: neverdem
You don't pay for a right,...

Yes, and no. All too often, you pay for a right in blood.

5.56mm

65 posted on 11/15/2011 4:27:29 PM PST by M Kehoe
[ Post Reply | Private Reply | To 1 | View Replies]

To: neverdem
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.”

So then, there's no problem with a state whose handgun carry licenses aren't recognized by another state thereby denying recognition of that second state's driver's licenses and vehicle license plates?

I predict that the tow truck services around Yellowstone National Park may soon be doing a booming business.

66 posted on 11/15/2011 4:32:05 PM PST by archy (I'd give my right arm to be ambidextrous!)
[ Post Reply | Private Reply | To 1 | View Replies]




Click the Pic               Thank you, JoeProBono

Gary Got Lost, and Mystery Solved! This Is the Reason!

Follow the Exciting Adventures of Gary the Snail!


Sign up to Donate Monthly
Sponsors will contribute $10
For each New Monthly Donor

67 posted on 11/15/2011 4:38:43 PM PST by TheOldLady (FReepmail me to get ON or OFF the ZOT LIGHTNING ping list)
[ Post Reply | Private Reply | View Replies]

To: SoJoCo
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 the individual can't be further trusted with the duties and responsibilities of citizenship, to include firearms use and voting, then it would seem unreasonable to set them loose at all.

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?

Note that the new diagnostic manual for psychiatry, generally known as the DSM-V, will be coming out in a few months. And from what I've seen of it, many of the included *syndromes* and *mental conditions* are about to be utilized to deny civil rights to a very large percentage of the citizenry.

Oh, BTW: you forgot to include the one American in Ten who's currently on prescribed anti-depression or anti-psychotic medications. Shouldn;t they be included too? And all those poor veterans suffering from the terrible mental anguish of their service? Surely you wouldn't want to trust them with weapons....

68 posted on 11/15/2011 5:15:34 PM PST by archy (I'd give my right arm to be ambidextrous!)
[ Post Reply | Private Reply | To 42 | View Replies]

To: ctdonath2
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.

Including, BTW, the loss of second amendment rights for traffic offenses.

69 posted on 11/15/2011 5:17:27 PM PST by archy (I'd give my right arm to be ambidextrous!)
[ Post Reply | Private Reply | To 50 | View Replies]

To: xzins

>I have been told that, while “concealed carry” requires permission, “open carry” does not. Does anyone know if this is true?<

Each state makes it’s own laws.
In NY you need a permit to carry period.


70 posted on 11/15/2011 5:41:36 PM PST by Munz (All tyranny needs to gain a foothold is for people of good conscience to remain silent.)
[ Post Reply | Private Reply | To 9 | View Replies]

To: Repeal The 17th

>Is there some federal law that says Tennessee has to recognize my Georgia drivers license?
Just a curious thought...<

No, some states recognize other states licenses and suspensions and reciprocate with each other. One by one,


71 posted on 11/15/2011 5:43:10 PM PST by Munz (All tyranny needs to gain a foothold is for people of good conscience to remain silent.)
[ Post Reply | Private Reply | To 11 | View Replies]

To: Munz

I wonder if you need a permit to make a speech?


72 posted on 11/15/2011 5:47:46 PM PST by xzins (Retired Army Chaplain and Proud of It! True Supporters of our Troops PRAY for their VICTORY!)
[ Post Reply | Private Reply | To 70 | View Replies]

To: archy
Oh, BTW: you forgot to include the one American in Ten who's currently on prescribed anti-depression or anti-psychotic medications. Shouldn;t they be included too? And all those poor veterans suffering from the terrible mental anguish of their service? Surely you wouldn't want to trust them with weapons....

Do you want my state to tell you and your state who you should decide deserves to be allowed to own a firearm? If not then why should I want your state to do the same to mine?

73 posted on 11/15/2011 5:48:52 PM PST by SoJoCo
[ Post Reply | Private Reply | To 68 | View Replies]

To: supercat
If a person is inclined to criminally harm others, forbidding that person from possessing some particular kinds of weapons isn’t apt to make much difference. If a criminal who can’t be trusted with a weapon would be inclined to buy one, why is that person being allowed on the street at all?

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

With regard to children, their parents should be the ones to determine what they are allowed to have.

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?"

With regard to those who are mentally incompetent, is there any reason that the standard of proof required to disarm someone should be any lower than the standard of proof required to find them incapable of managing their own affairs?

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?

74 posted on 11/15/2011 5:52:41 PM PST by SoJoCo
[ Post Reply | Private Reply | To 63 | View Replies]

To: supercat
Subject to Fourteenth Amendment protections, states are free to set their own standards with regard to how people are adjudicated mentally incompetent, and how the affairs of such persons are managed.

The 14th Amendment says that the state has the right to deprive a person of liberty or property so long as it is done with due process of law. So shouldn't that include the right to decide that a person convicted of a violent crime shouldn't be trusted with a firearm?

75 posted on 11/15/2011 5:55:53 PM PST by SoJoCo
[ Post Reply | Private Reply | To 64 | View Replies]

To: xzins

“...out here in farm country, especially this deer season time of year, folks walk around openly better armed...”

This afternoon in Amish country (Holmes County, Ohio) I saw an Amish fellow walking along Rt 241 carrying a rifle on his shoulder (barrel down, butt on his shoulder)


76 posted on 11/15/2011 6:28:02 PM PST by GGpaX4DumpedTea (I am a tea party descendant - steeped in the Constitutional legacy handed down by the Founders)
[ Post Reply | Private Reply | To 16 | View Replies]

To: archy

The Sullivan Act/Law was passed around 1911 requiring New Yorkers to obtain a permit to carry concealed firearms.


77 posted on 11/15/2011 7:31:40 PM PST by wastedyears (11/11/11 is National Metal Day.)
[ Post Reply | Private Reply | To 21 | View Replies]

To: SoJoCo
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?

You'll find the government making up every excuse they can to make the pool as large as possible in that case.

78 posted on 11/15/2011 7:53:01 PM PST by wastedyears (11/11/11 is National Metal Day.)
[ Post Reply | Private Reply | To 42 | View Replies]

To: supercat; SoJoCo
If a person is inclined to criminally harm others, forbidding that person from possessing some particular kinds of weapons isn’t apt to make much difference. If a criminal who can’t be trusted with a weapon would be inclined to buy one, why is that person being allowed on the street at all?

That is exactly correct. It doesn't matter if the person has a Barrett M82, AR15, 1911, a sword, an ax or a fork. If the will is there, the tool will not matter for someone that wants to harm others.

79 posted on 11/15/2011 7:58:13 PM PST by wastedyears (11/11/11 is National Metal Day.)
[ Post Reply | Private Reply | To 63 | View Replies]

To: archy

Does it include medication for endocrine disorders?


80 posted on 11/15/2011 7:59:59 PM PST by wastedyears (11/11/11 is National Metal Day.)
[ Post Reply | Private Reply | To 68 | View Replies]


Navigation: use the links below to view more comments.
first previous 1-2021-4041-6061-8081-89 next last

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.

Free Republic
Browse · Search
News/Activism
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson