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Powers to Establish Reciprocity

There are three powers of Congress that HR822, the bill to establish a federal requirement that states recognize each others permits, can be plausibly based on. I think a reasonable order of plausibility goes something like this:

  1. Section 5 power of the 14th Amendment.
  2. Commerce Clause
  3. Full Faith and Credit Clause

HR822 is worded in such a way as to leave open the possibility of arguing all three powers before a court if the law ends up there, which it is nearly certain to. Of all the powers that could be upheld, I think the 14th Amendment power is likely the strongest. HR822, as it stands now, would be a more dubious exercise of the commerce power. Full Faith and Credit is an interesting idea, but the field is undefined enough I wouldn’t want to wager on the outcome. With that in mind, I’ll take a look at each power, plus a few more that Congress could potentially use to legislate in this area.

The Supreme Court has ruled that the Section 5 powers can not impermissibly expand a right beyond that which the courts have interpreted. While the Heller ruling never explicitly reached the subject of bearing arms, except within the home, it did implicitly recognize that there was a pre-existing right to carry a firearm outside the home for self-defense. The Supreme Court was mum on the subject of whether licensing of the right to keep or bear arms is permissible, but given that the vast majority of states have chosen to license the “bear” part, at least outside the home, Congress is probably most comfortably within its Section 5 power not to interfere with licensing standards, and jump ahead of the Courts in establishing the boundaries of the Second Amendment right. We have a pretty clear right to carry firearms in public under Heller, but the definition and boundary of that right are considerably less clear. If Congress is looking to protect this right from state interference, it’s worthwhile to look at opportunities which do not take an expansive definition of the right, leave most of the details in state hands, and performs a lawmaking function the Courts may be reluctant to undertake. Given that licensing can potentially interfere with the right to bear arms, and interferes with the right to travel, it’s a quite plausible exercise of Congress’s Section 5 power to force states to recognize each other’s licenses. It leaves most everything in the hands of individuals states, but merely forces recognition. This is plausibly meant to protect the right to carry in a way that does not interfere with state prerogatives, does not expand the right beyond which the Supreme Court has spoken of, and enacts a policy the Supreme Court is unlikely to reach. Remember that the courts can only strike down laws. Making law is something Congress needs to do.

Aside from the 14th Amendment, the bill is worded in such a way as to claim the commerce power. While a commerce clause claim is almost always plausible, there’s a strong argument that HR822 is outside its scope. First, it’s based on the herpes theory of the commerce clause, which says that if an object moves in interstate commerce, it’s forever within Congress’s prerogative to regulate the object, it’s sale, disposition, or use. The Lopez case, at least in theory eliminated the herpes theory, despite a lack of enthusiasm from lower courts. Absent the herpes theory, one can make a distinction between HR822 and the laws which rely on Congress’ power to ban felons from possessing firearms or ammunition. One could argue that banning felons-in-possesion is part of Congress’ broad, national scheme for the commercial regulations of firearms, with the aim of keeping firearms out of criminal hands as a matter of national policy. In that case it may be said it is necessary and proper to ban possession entirely in order for the national scheme to remain effective. This would be fitting with the standard established in Raich. It’s much harder to make that case with a scheme that mandates reciprocity. How does this scheme contribute to Congress’ national scheme to regulate the commercial market in firearms? One could make the argument that people being afraid to move between states without sufficient protection has a negative net effect in interstate commerce, but this was exactly the argument the Court rejected in Morrison. I think HR822 would stand a chance of being invalidated purely as an exercise of the commerce power, since it is not necessary and proper for the execution of any national regulatory scheme connected to broader commerce.

Could Congress call on the commerce power to establish federal standards for issuance or to establish strict federal standards for reciprocity? Plausibly, yes. But likely only so far as it could be shown that the scheme was “necessary and proper” for the furtherance of national policy on firearms commerce. That’s not as high as standard as I would like, but it’s worth noting that Congress could have done this at any point in the past 20 years. Yet it hasn’t interfered. You can imagine our opponents would have loved federal intervention to put a stop to concealed carry, or frustrate its progress as much as possible. The reason Congress hasn’t is because they are afraid of us as a voting bloc. The reason they will continue not to interfere is the same reason. The commerce powers as they are understood today have existed since the New Deal. These are not new powers.

Finally, Full Faith and Credit is a plausible source of power, which empowers Congress, “by general laws, [to] prescribe the manner in which such acts, records, and proceedings, shall be proved.” As best as I’ve been able to find in my research, this power is relatively undefined. So Congress may have the power to mandate reciprocity as a matter of Full Faith and Credit, though it may not. There’s good arguments to be made on both sides.

So what other powers could Congress claim to interfere with state prerogatives in this matter? One other I could think of is the Compact Clause, which states, “No State shall, without the consent of Congress, enter into any Agreement or Compact with another State.” It’s generally been interpreted to mean that if Congress does not explicitly object, its consent is implicit. But Congress could have, all along over the past twenty years, presumably invalidated every reciprocity agreement if it had so desired. While the reciprocity compacts are ones that I think would be likely to survive a court challenge absent congressional action, with direct Congressional action, it would look bleak for reciprocity.

There is a wide variety of lawmaking Congress is theoretically empowered to do, under well established precedent, that could shred the rights of gun owners. Where HR822 blazes the most new territory is in the 14th Amendment and Full Faith and Credit powers, where Congress’ can only claim power to protect our rights rather than destroy them. Previously, when all we had was the commerce clause, I was quite wary of Congressional action in regards to reciprocity because of the concerns many have raised about federal power to destroy rather than to protect. Given the whole of Heller and McDonald, I now think it’s a wise thing for Congress to dip its toe into its Section 5 powers, and see how the water feels. The only way we’re going to bring states like California, New Jersey, New York and Massachusetts back under the constitutional umbrella is for Congress to establish that it does not fear to use its 14th Amendment powers to protect the rights of Americans to keep and bear arms.

10 Responses to “Powers to Establish Reciprocity”

  1. I think that the central question is the fact that licensing laws treat different categories of people in different ways based upon whether or not they are permanent residents.

    Since it is pretty clear that your rights don’t change just because you are in a different state, acting under the 14th Amendment to require states to tread non-residents the same as residents makes sense. One does not assume that your 4th, 5th, and 1st Amendments rights are lessoned just because you happen to be traveling through New Jersey.

    If bearing arms is a privilege, granted through a special exception to law by a State, then it makes sense to defer entirely to the state as to who, how, and when. But if it is a right of all Americans, then that right exists even outside of your home state. Heller implied that bearing arms, at least outside of ‘sensitive areas,’ is a right.

  2. Much obliged for the in-depth analysis. That old Volokh link was enlightening. I was unaware how ill-defined the Full Faith and Credit powers are.

  3. Gene Hoffman says:

    There is one other major way that this is a valid action of Congress. The 14A clearly protects the right to travel. See Saenz v Roe. There is no right to welfare, but the right to travel does mean that you can’t be treated as an unwelcome visitor. That your state couldn’t get reciprocity for whatever reason is no reason to disallow you even the privilege, much less the right to bear arms. As such, the strongest grounds today is the right to travel and not really the right to bear arms. Even Scott v Stanford understood that point.

    -Gene

  4. Ymal Brucker says:

    FF&C has nothing to do with black-letter law, per se. It refers (mainly) to the judical acts of other states and to the other state’s legislative laws regarding matters of status. That is, if one state says a couple is divorced, or married, other states must recognize such.

    Likewise, a monetary judgement in one state can be enforced in another.

    FF&C does NOT apply to the general laws of a state. No state is going to clap someone in jail for violating a law on the books in another state.

  5. A Critic says:

    “Aside from the 14th Amendment, the bill is worded in such a way as to claim the commerce power. While a commerce clause claim is almost always plausible, there’s a strong argument that HR822 is outside its scope. First, it’s based on the herpes theory of the commerce clause, which says that if an object moves in interstate commerce, it’s forever within Congress’s prerogative to regulate the object, it’s sale, disposition, or use. ”

    Commerce is the large scale trade of commodities. To “regulate” means “to make regular”. Prohibiting, or permitting, my personal firearms are not commerce and has nothing to do with regulating commerce. This “herpes theory” is not plausible.

    “Absent the herpes theory, one can make a distinction between HR822 and the laws which rely on Congress’ power to ban felons from possessing firearms or ammunition.”

    Congress doesn’t have the power to ban citizens from their rights.

    “One could argue that banning felons-in-possesion is part of Congress’ broad, national scheme for the commercial regulations of firearms, with the aim of keeping firearms out of criminal hands as a matter of national policy. In that case it may be said it is necessary and proper to ban possession entirely in order for the national scheme to remain effective. This would be fitting with the standard established in Raich.”

    While invalid, Raich claims the power to pass and enforce laws that are in clear violation of the Constitution even if it kills citizens. If we accept this power as precedent, the federal government can do whatever the hell it wants. If they can murder cancer patients they can ban guns, permit guns, require guns to be permitted, require you to buy guns, make all guns be pink with purple polka dots, et cetera. The continued dancing around Constitutional and legal issues is pretty absurd considering that the right of life is no longer recognized.

  6. Sebastian says:

    My purpose was not to describe constitutional law as I think it should be, my purpose was to describe it as it is.

  7. chris says:

    So I love this bill, I hope it passes…

    But what will stop a state like NY from saying that you can only carry in leather holsters or only carry .38s and 9mms, or that you can only carry left handed. And then arresting and charging people for illegal carry?

    How many criminals will states like NY create before the resulting cases get filtered up the court system? How many people’s lives will they destroy in their temper tantrum which we all know will come.

  8. Sebastian says:

    It’s possible. It’s also possible they get out of it by prohibiting concealed carry entirely.

    But in most of the restrictive jurisdictions, the politically well connected are the ones who get permits. If you give those folks a choice between losing or weakening the privilege, or giving it to the plebes too, they’ll most likely choose the latter.

  9. And at the very least, it puts bad states on the defensive. Far better for NJ antis to have to fight for new laws burdening concealed carry than to let them sit back and enjoy the status quo. If they do get anti-carry laws–and that’s hardly a sure thing–we haven’t lost anything, but they’ve had to burn political capital. I’d rather the antis had to run like crazy just to stay where they are.

  10. Ian Argent says:

    It will force the anti’s to burn political capital against the most politically connected people in the state, namely the ones with the ability to get unrestricted carry permits. I think that won’t end will for the hoplophobes. They already can’t deliver votes, and now they want to restrict the nobs’ ability to carry?

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