Tenth Amendment Center: Let the States Decide on Concealed Carry
Back in August, Suzanne Sherman and Carl Jones outlined why the National Concealed Carry Reciprocity Bill would be a Trojan horse for the Federal government. Today, it is more important than ever that we let states decide this issue on their own. And I’ll explain why.
When I first decided to start carrying a gun, I took all necessary measures to ensure that I was going to be a responsible, law-abiding gun owner. I went for training. I read any and all literature I could find on the subject. And I familiarized myself with the gun laws in my home state.
First and foremost, I applied for a concealed carry permit. Residing as I do in the great State of Virginia, such preparation wasn’t really a requirement. To receive a five-year concealed carry license, all that was required of me was to fill out a form, get it notarized and send it to the applicable department with a check for fifty dollars and a copy of my hunter’s safety card.
There were no laws in place to prevent me from obtaining a permit and legally carrying, even if I had never received any proper firearm training. As long as I could prove that I had competently hunted, no special self-defense or concealed carry courses would have had to be completed.
While it’s all well-and-good for Virginia to be so lenient when it comes to its gun ownership standards and to trust their residents to train on their own time, there is the larger question of whether an individual should be able to use their state-issued permit, under federal law, to carry their gun in more gun-restrictive states…especially if it’s against that state’s will.
What’s more, some states have what is called a “constitutional carry” policy where residents don’t need to have a concealed carry permit to carry a firearm. So the question becomes, will these unlicensed individuals be allowed to roam where they please with a loaded handgun or rifle?
At this time, there are multiple bills in the House and Senate seeking to pass a federal reciprocity law. Back in January, North Carolina Rep. Richard Hudson introduced the first of the reciprocity bills and this was swiftly followed by Texas Senator John Cornyn’s companion bill, the so-called Constitutional Concealed Carry Reciprocity Act.
This, in turn, was followed up by the Personal Protection Reciprocity Act, a bill introduced by Rep. Thomas Massie in response to the shooting of Rep. Steve Scalise at a congressional softball game.
Rep. Richard Hudson’s reciprocity bill in the House would give states no choice but to allow their residents to carry guns with non-resident permits that they acquired in other places, thereby undermining the laws in more restrictive states.
For some, this may sound like a real boon. After all, many gun owners in the Midwest may have family on the East coast where New York laws strongly limit when and where a person can handle a gun.
But it also tramples on the intended constitutional system.
Nullification is a process that empowers states to refuse cooperation with federal rulings and with the enforcement of federal laws. Nullification is based on the fact that the states formed the Union by agreement and are the founders of the federal government. As such, they should have the final say-so when it comes to the limits of power that the government possesses.
From a technical standpoint, mandatory reciprocity may seem constitutionally defensible, but one should not believe the bills’ proponents when they sing its praises. At its core, this is a matter of federal overreach, one that demands that non-residents meet the same concealed carry eligibility as the citizens of a sovereign state.
This does not paint conservatives with a very nice brush. On the contrary, it makes conservatives look shady at best. It is one thing to introduce a bill with legitimate reasoning to back it up, but it’s another story altogether when politicians rally the federal government to do something because of a knee-jerk reaction (see: the Steve Scalise shooting) without upfront constitutional justification.
After years of reciprocity bills being introduced, nary a single Republican has found a constitutional power that would enable them to make such a law mandatory across all states. And they won’t find it because it does not exist.
State governments function autonomously because power needs to be carefully balanced, lest we find ourselves in the position that countries like Germany and Russia have found themselves in the past. It is a protection in place to make sure that America remains a free country, unfettered by totalitarianism or any other abuse or misuse of power.
Those who introduce these bills like to cite the Second Amendment—the right to keep and bear arms—as a justification, but this amendment does not and never has prohibited states from setting standards for their citizens to follow nor does it prevent them from enforcing the same when it comes to non-residents.
As far back as the founding, several states have forbade concealed carry and the courts of this land have invariably found that they were well within their right to do so. The Supreme Court case of Heller notes, “Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.”
Unfortunately, while this is true, three constitutional scholars have recently posited a constitutional defense of reciprocity that is reliant on the obscure and inscrutable Full Faith and Credit Clause which says, “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 be general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”
In lay terms, what this means is that if states are constitutionally obligated to grant “full” faith to other states’ laws, there is nothing left for Congress to “prescribe” about the laws’ “Effects.”
This has been one of the most opaque laws in our history and one that many courts have grappled with. In regards to the matter of national reciprocity, it boils down to desperation. Those seeking to have these bills passed are grasping at straws and this is, essentially, the best justification they can come up with.
So, while the House bill may fall under the auspices of the Full Faith and Credit Clause, allowing for Congress to determine the “Effect” such a bill would have after the fact, it is not a good look for the modern Republican.
American conservatism was founded on a desire to unite the country and foster a dialogue between both major parties. By forcing legislation down the throats of resistant states by federal decree, conservatives would be sending the wrong message, not just to state government but to the general public.
What bills like these and President Trump’s reversal of the ban on surplus military gear to police forces say to the people is that it would be easy for our government agencies to militarize themselves at any given time. Indeed, reciprocity laws, if passed, could then be utilized by the U.S. military and other outfits to rationalize martial law and a national police state.
And even without devolving into theoretical bedlam, it should be obvious that the issue is one of apples and oranges. Quite simply, some states have an extremely laissez-faire attitude when it comes to concealed carry while others insist on extensive red tape. It is not the role of the federal government to determine whether they permit or don’t permit something.
Some statistics have shown that murder rates have fallen substantially as the number of concealed carry handguns have risen, and many speculate that crime plummets when concealed carry laws are more lax.
Rigid training requirements could prevent a guy from shooting himself in the butt at his neighborhood Target store, but if he’s not able to easily obtain a permit, he may not be able to defend himself during a home invasion.
That being said, it is understandable for some states to have their reservations about liberal concealed carry policies when one considers the rash of mass shootings that have plagued the U.S. in recent years. All of these things should be factored in on a case by case basis.
These are things for states, not the federal government, to ponder when passing legislation. Research and vetting should be key considerations. But the biggest consideration of all should be nullification. States should always be able to prevail in the face of federal overreach.
Sam
October 22, 2017 at 02:04PM
