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The Constitutional Authority for National Reciprocity

I’ve run into a few threads over the weekend discussing National Reciprocity, and the power Congress is relying on to pass it. There seem to be a number of misconceptions.

First, Congress is not required to state what power its authority to pass a bill falls under, and so often bills do not discuss that. The argument for whether a bill falls outside of Congress’ enumerated powers is an argument for the courtroom. Previous National Reciprocity Bills have had statements speaking to Congress’ power to pass it, but this latest bill, H.B. 38, does not. It is probably best that the bill does not discuss that. National Reciprocity relies on three powers of, with some arguably weaker than others. I will discuss them from the strongest to the weakest (in my opinion, reasonable people can differ):

Commerce Clause: Much of our federal gun control law rests on Congress’ power to regulate interstate commerce. That’s why in much of federal gun control law you see “in or affecting interstate or foreign commerce, ” and why you’ll also find that type of language in H.B. 38. Granted, I strongly believe the Courts have interpreted this power way too broadly, but if we can prosecute felons for possessing firearms because that firearm was once transported in Interstate or Foreign Commerce, it would be interesting to see the Courts’ reasoning on why it can’t apply to firearms carried by civilians. That’s why I believe this is probably the strongest argument for the bill, even if I don’t personally like it. The apple cart that would be upset by the Courts rejecting what is sometimes called the “Herpes Theory” of the Commerce Clause is big and consequential enough I don’t think the federal courts would want to risk it.

14th Amendment: A lot of people have argued that the 2nd Amendment trumps the 10th Amendment. This is true, but only because the 14th Amendment made it so. The 14th Amendment prevents states from interfering with the civil rights of Americans, and also gives Congress the power to enforce that amendment via legislation. This is the power I’d like to be the most solid, but we have a big complication with City of Bourne v. Flores, which argued Congress could not extend the meaning of a right beyond what the Courts have recognized. I would argue Heller and McDonald both acknowledged a right to carry defensive arms, so in this case, Congress is not overstepping its bounds. Additionally, there is a Right to Travel under the 14th Amendment that is recognized by the Courts, and which provides us with additional structure in this area. Finally, National Reciprocity is something more suitable for Congress’ powers than the courts. The courts can strike down laws, but the creation of a reciprocity regime is something only Congress can do appropriately.

Full Faith and Credit: A lot of people mistakenly believe driver’s licenses are recognized in every state because of this clause. That is not the case. Driver’s licenses are recognized in every state via an interstate compact, or by direct state recognition. It is purely a function of state law. What the Full Faith and Credit Clause means is not terribly well defined, and I believe we’d have trouble with the “public policy” exception the Supreme Court laid out in Pacific Employers Insurance v. Industrial Accident. I think this is the weakest power of the three, but Congress has never done anything quite like National Reciprocity, so it’s still there.

If you want to read a more in-depth analysis of what I’ve discussed here, I’d recommend Clayton Cramer’s new paper: “Congressional Authority to Pass Concealed Carry Reciprocity Legislation” Please keep these arguments in mind when you run into people spouting “states rights” arguments against National Reciprocity. You’ll find a lot of conservatives doing this if you look. Congress has had the power and used the power to protect the civil rights of Americans since the end of the Civil War. It should not be shy about using those powers to protect the Right to Keep and Bear Arms any more than it other civil rights which have been long protected under federal law.

29 Responses to “The Constitutional Authority for National Reciprocity”

  1. ttl says:

    IANAL, and have no understanding of legal subtleties, precedent, or case law, but my citizen’s plain language reading of the words in the Bill of Rights has always made me wonder how anyone could even begin to make the case that the 10 Amendment would trump the 2nd Amendment. This is based simply on the self consistency of the first ten amendments, without bothering to add the 14th as a factor, which of course trumps it all.

    2nd: “… the right of the people to keep and bear arms shall not be infringed.”

    10th: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

    Plainly speaking, the power to infringe the right of the people to keep and bear arms is prohibited, period… the right to keep and bear arms is clearly and unambiguously enumerated as the people’s right. As many other people have pointed out, the 2nd Amendment is written completely differently than, say, the 1st, which includes verbiage such as “Congress shall make no law…”, specifically prohibiting the United States but not the States.

    People who want their own way always find ways to complicate and obfuscate.

  2. JohnnyDerp says:

    From Kramers paper “where Congress’ powers are limited to the relatively narrow list contained in Art. I, § 18.” Huh? The Article has 10 sections

    Let’s leave SCOTUS, and case law and precedent out of it, and use a plain reading of the Constitution, as was intended by the Framers

    Article VI, Clause 2
    This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

    The Constitution, its amendments and any law made by Congress within the powers noted in Article I, are the Supreme Law of the Land and All, I repeat All, Judges shall (must) be bound thereby

    So, in the vain of “let’s enforce existing laws”, let’s enforce the Constitution first, and remove the intolerable acts weighing on the peaceable citizens of the Union

    I realize this makes me sound like an anarchist bomb thrower, but so were the Founders. This is what Individual Liberty looks like if you apply the Constitution as it was written

  3. Patrick says:

    States have no rights. Rights are things that only people can have. States have Powers. It’s in the fracking amendment. The whole point of the Constitution is to ensure that our Rights trump government Powers – state or federal.

    Anytime someone talks about “states rights” I roll my eyes and ignore everything they say immediately after. Especially if they are elected to any type of office or claim to be an expert in anything other than sounding like an idiot.

    States have no right to deny my fundamental rights. If it takes a Federal Power to protect that right from a State Power, so be it. That’s the way it is supposed to work.

    States and the Federal were set up as competitors in a contest to see who could protect my rights best. But somewhere between the Civil War and today we ended up with gun control and automated speeding cameras extracting taxes from The People.

    Reciprocity is not only Constitutional, it’s the whole point of of at least two amendments to it. Keep talking “states rights” and don’t be surprised when everything you do is controlled by a state because it “has the right” to frack you over daily. Don’t complain — your the one saying that a government has “rights”.

  4. Whetherman says:

    I too am going to avoid the subtleties of law, and instead appeal to what my Old Guy’s Gut tells me: If you get National Reciprocity you (or your kids) will come to regret it.

    Many things will look good, initially, relative to what you currently have. I know everyone will dismiss this as a bad analogy, or not really analogous, but I remember when “Instant Background Checks” sounded like nirvana compared to the ubiquitous “waiting periods” we had up to that time. I remember when candidates who answered questionnaires, that they opposed IBCs, were gigged as “anti-gun,” even if they were coming at the question from the libertarian viewpoint that any prior restraint on access to a constitutional right was unacceptable. I had to lobby my county gun rights group for a long time to acknowledge that a simple “do you support…yes/no” question was not sufficient.

    We now see that an automated background check system will slowly evolve into a way to increasingly choke off access to our rights. Here in Pennsylvania, the PICS provided (from the very first day it went online) the backbone for the State Polices’ de facto firearms registration system — which “law” was supposed to prevent them from having. (It didn’t.)

    State gun owners demanded that the tool be given them.

    What will National Reciprocity be a tool for a future (like after January 20?) federal government to do? Establish, eventually, an Instant National Registry of people known to carry firearms? People requiring extra scrutiny when they board airplanes? People whose luggage requires just a little more behind-the-scenes riffling? Whose car gets automatically flagged as “present” when they go through the EZ-Pass lane on a foreign state’s turnpike?

    More than fifty years ago, I remember what “experienced” soldiers (two weeks?) yelled to us as we got off the train at the Reception Center at our Basic Training fort: “You’ll be sor-reeee…”

    • Ian Argent says:

      What’s the mechanism of action there? This bill created no database of licensees, doesn’t even require that the states do so.

      • Whetherman says:

        “This bill created no database of licensees…”

        I am relieved to learn that the bill in question will be the last federal legislation or regulation ever passed.

        And in Pennsylvania, we learned that no legal authority at all is required for law enforcement to do what it wants to do; in fact, the legislation that authorized PICS specifically prohibited the State Police from doing what they do. But later (it took some years even to get to court) courts said it was just fine that they do it.

        I am under the impression that historically, the FBI (e.g.) and other federal “security” agencies have been worse than our PSP in terms of doing things that were “illegal.”

        Get your head out of the realm of law-as-mysticism, and take a course on “reality law.” My contemporaries tell me law schools used to have such courses.

        • Alpheus says:

          I think it’s right to be cautious about this, but I think Sebastian is right, too, that this will provide yet another obstacle to people against gun rights will have to overcome, when they attempt to push their agenda further.

          Whether this bill is passed or not, we can be certain that it won’t be the last federal legislation or regulation on the issue is passed. I don’t see how this bill will open the door for registration legislation, though, because anti-gun types have been pushing for registration for a very long time.

          Additionally, I think that having yet another law where the promise that “this will result in blood flowing in the streets” is unfulfilled yet again — and will even put pressure on the anti-gun States to reform their laws to be more aligned with the federal Constitution, is worth the risk of getting the Federal government involved.

          Regardless, we need to be ever-vigilant, and do what we can to stop any anti-gun legislation and regulation at the pass.

  5. Michael says:

    What about article 1 section 8 clause 16?

    “Congress shall have the power … To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

    Congress could pass a law that one of the disciplines that is proscribed is that every citizen shall have the right to carry arms in defense of themselves and the state. Given the threat posed by ISIS and lone wolf terrorist attacks this isn’t so far out there as a good idea from a national security point of view.

    • Richard says:

      I have wondered about this for the same reasons you cite. I even looked up Federal militia law to see whether this could be done via EO (probably not). It would take modification of militia law as it seems to limited to males 18-45 but that shouldn’t be a problem today. There would be a question about legal resident aliens. The constitutional language would leave the door open to mandatory training. While I support training I don’t support a mandate as it would be too easy to abuse so as to deny the right altogether. Perhaps voluntary training could be funded. This Federal approach would fuel the suspicions on the part of some of our friends and might be avoided for that reason. See Fred’s comment below. I don’t agree but he is on our side and there are others like him.

  6. Fred says:

    Surrendering your right to self defense to the congress is almost the stupidest idea I’ve ever heard. Respectfully, we aren’t losing, why throw a hail-mary pass. Our ground game is killing them. We have legislatures in at least 35 states backing down to our demands, judges are finally forced to recognize the individual right, we are winning 1000’s of new shooters a week, state after state is going permit-less. Why risk it? What possible good can come from having the congress attaching itself to your firearms? We don’t need their “help”. I agree that it would be funny to poke the California and Massachusetts legislatures and attorney generals in the eye but for what? This can’t end well, it just can’t. Everything government touches becomes corrupted. In five years when Shumer is speaker of the house then what? I’ll tell you what, the feds will withhold highway funds (the usual threat) unless SMART guns are mandated. And that’s a best case. Why oh why would anybody want to even suggest congress do anything except go die. Trillions of dollars in debt with no end in site by known categorical psychopathic liars and control freaks. Would you let them in your house? Would you leave your children alone with them? Why are you giving them your rights? Name one single thing, ever, in the history of mankind that government gave back to it’s people after taking it. Name it. This path fraught with danger and WILL BE DESTRUCTIVE TO YOUR LIBERTY.

    • Sebastian says:

      “Surrendering your right to self defense to the congress is almost the stupidest idea I’ve ever heard.”

      Whose suggesting we do that? All this does is force states to recognize American’s right to carry in other states.

      Congress can always pass gun control. It’s not like it’s a novel idea. It’s no excuse for not moving the ball forward when we can.

      • Richard says:

        Plus Bloomberg seems to be trying to kill the gun culture one state at a time and has had some success. That process needs to be reversed and this is one good way to do it. A much better way, IMO, than other proposals about the NFA.

    • Ian Argent says:

      This is not any sort of “national carry permit.” All this says (almost literally) is that states must recognize other states’ carry permits, and provides for penalties when someone is detained illegally instead of the permit being recognized.

      • Whetherman says:

        Using drivers licenses as an analogy, while the states do have significant differences in how they issue drivers licenses, there are a number of features that are imposed directly or indirectly by the federal government; usually with the threat of withholding transportation funding for states that don’t comply.

        For example, in Pennsylvania we recently learned that our drivers licenses would in the future no longer be acceptable as federal ID for boarding airplanes or entering federal facilities.

        That raises an important historical example, since more than 30 years ago, Photo Drivers Licenses conforming to federal standards were imposed by the federal government. I predicted at the time that they would shortly become de facto internal passports, and I was right.

        Gradualism can accomplish anything.

      • GMC70 says:

        ‘This is not any sort of “national carry permit.””

        No, it’s not.

        YET.

        But it sets the precedent to give Congress, especially a future blue congress, an opportunity to impose “national standards” on that reciprocity, and then turn those standards into restrictions and de facto registration. See what happens later.

        Be careful what you wish for.

    • Fred says:

      All congressional regulation is infringement. What are we going to do, pass a another law only this time really super duper mean it? Ridiculous. EVERY congressional act is regulation. Period. All government is rule of law by force, ultimately at gunpoint. What you are actually asking for is Gun Control by the congress. You’re asking for the congress to regulate the wearing of arms for the purposes of self defense. That’s gun control. The congress can kiss my ass. I will not comply. Every single one of those constitution violating, power hungry, money grubbers should be swinging from the lampposts. Government can’t give you freedom. Congress can’t give you freedom, the people of Tennessee and people of Montana and the people of Texas can’t give you freedom. If you have chosen to stay behind enemy lines then you must fight. We can’t fight for you. Either move to one of the free Christian republics in Appalachia or to the desert south west or the rocky mountain west or fight where you are. You have to be willing to lose everything; your family, friends, job, house, your fortune and your sacred honor. Nobody can set another man free. There is a higher order, a natural law. Every living has a self defense mechanism, nobody can take it and nobody can give it. We hold certain truths to be self evident. By His son’s blood, in the name of the LORD Jesus the Christ why would you ask congress for anything?

      You want your rights back? Be the third monkey on the gangway up to Noah’s ark, and brother, it’s starting to rain.

      One phone call, one letter, one new shooter, one $20 dollar bill at a time.

      I just gave sacrificially to get my state to go permit-less. That means peanut butter and jelly and no it’s not good every day for a month. I have to go. I have letters to my reps to right and I have to follow up and see how my latest wins, three teens and their mom, are doing in their new shooter class. God bless you.

  7. Jim W says:

    This isn’t a camel nose under the tent. Congress has passed federal gun control on numerous prior occasions. They don’t do it anymore because of the high political cost, not because of our self restraint.

    Forced reciprocity is a Trojan horse that brings gun culture into the remaining anti gun States. It doesn’t create any federal agencies or give anyone power over licensing- believe me, if the Dems could do that, they already would- it just means that any license is valid everywhere. This is the beginning of the end for Bloomberg. Once gun culture returns to NY and CA, it’s only a matter of time before they go the way of Florida.

    • Michael says:

      THIS! +a million.

      Does anyone think that, if they had the votes, the antis would hesitate to pass a federal law prohibiting concealed carry nationally?

      Note, under this bill it will be legal for a CA resident to carry in CA with a non resident permit from another state. In effect this is national shall issue CCW without creating a new federal bureaucracy to do it. I believe that shall issue CCW has been the greatest motivator of the pro-gun cultural shift that has occurred in the last generation. By forcing it into CA, NY et al. we will drive those states to a much more pro-gun position.

  8. Whetherman says:

    “They don’t do it anymore because of the high political cost…”

    And as we learned recently, nothing about the American political scenario ever changes.

  9. dwb says:

    “It is probably best that the bill does not discuss that. ”

    Also, a sign that Congress is getting serious about passing it because Congress would not want to focus court challenges.

    Groups that are looking to challenge national reciprocity should be careful what they wish for. Current state cases on carry restrictions may not make it to the Supreme Court (Trump’s appointment may come to late for cases like Peruta in the 9th, we will see).

    But this law would be an appropriate vehicle, and the Supreme Court almost certainly would take a challenge. The court could easily uphold City of Bourne v. Flores, by saying that Heller embraced carry rights (“hey, we meant that all along”).

    As for actual enforcement, it will require withholding block grants of money, as with so many other things.

  10. Geoff says:

    It doesn’t matter if National Reciprocity passes. Your permit will be good in all 50 States, BUT NOT YOUR GUN AND/OR AMMO.
    Magazine limits, bans on HP ammo, only certain guns permitted (California).
    So my Permit will be good in New Jersey. Doesn’t do me a darn bit of good.
    I carry a Taurus PT24/7 Pro LS DS 9mm. with a 17 round magazine loaded with Federal Hydro-Shok 135gr. JHP. Illegal in NJ.
    That combination is also illegal in several other States.
    http://smartgunlaws.org/gun-laws/policy-areas/classes-of-weapons/large-capacity-magazines/
    My pistol is illegal in California.
    I do not plan to go to those States anyway.
    But, there ya go. National Reciprocity is a nothing Bill.

    • Sebastian says:

      It preempts that. It allows you to carry any handgun, and makes a point to note that magazines and ammunition count for that.

      Actually, I think the language there needs to be tightened up a good bit, but there’s an intent in the bill to preempt local state bans.

      Personally, I think they need to make the definition of a handgun clearer, and make it more clear they know they are preempting local laws on that. Basically, it should probably say “any handgun that is not prohibited under federal law, or the laws of the state in which the possessor resides.” So basically, if it’s legal in your home state, you’re good to go.

      • Patrick says:

        Rules of construction take hold here. “Handgun” is defined under 18 USC 901:

        (29) The term “handgun” means—
        (A) a firearm which has a short stock and is designed to be held and fired by the use of a single hand; and
        (B) any combination of parts from which a firearm described in subparagraph (A) can be assembled.

        The ambiguity was in magazines and ammunition – are they “parts from which a firearm … can be assembled”? This depends on the court. So by explicitly including mags and ammo, the drafters got rid of the ambiguity and tightened things up nicely.

        Limiting lawful possession to, “lawful in the state the possessor resides” has the contra-effect of increasing regulatory pressure on states, creating confusion as to what is or is not allowed (forcing cops to know all regulations everywhere), and most importantly giving law-enforcement an easy excuse for confiscating firearms without penalty.

        As it stands the police need exactly one standard to use: federal law. Expand that to the 100+ regulations out there nationwide and they can reasonably take a firearm and claim they were following the exact law that should protect us: “I didn’t know the gun was legal in the place the person was from, so we held it until our counsel could confirm with their home state that the firearm met the standard of the federal law.

        I know what you’re trying to get at, but more words are not better here. One standard is best. Every time I read this text, it becomes clear someone who really knew their stuff put it together very carefully.

        That said, there will be test cases and nobody will want to be one. The most impressive part of this act to me is the specific allowance to sue officials as individuals. That’s going to be a big deal, when combined with clear instructions that taking a gun from someone who lawfully possesses one is a violation in need (shall pay fees) of correction.

        Now we just need to get it passed.

  11. sage419 says:

    Government should always be required to state their authority for implementing regulation. If this were the case, we may not be fighting to “regain” rights today.

    • Sebastian says:

      Ultimately it does, but it’s in Court that it happens. I wouldn’t be opposed to a rule in Congress that requires it to be on bills, however. It’d at least force lawmakers to go through the motions of squaring their ideas to their constitutional powers. But where the argument really matters is in court.

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