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The Evolving Deal on SHARE and National Reciprocity

This article indicates we could get the SHARE Act, with the Hearing Protection Act component removed, and with National Reciprocity and some restriction on bump stocks added. The SHARE act removes a lot of the “sporting purposes” language in the Gun Control Act, so I’d probably take this deal. I don’t know what they are planning to do about bump stocks, but I’ve heard suggestions that they be classified as AOWs. That would require a change in the National Firearms Act.

If we’re going to start adding things to the NFA, I think it’s only fair that we get something in return, such as moving suppressors to Title I. I’m a bit surprised lawmakers are actually more wary of that than they are about National Reciprocity.

The more I’m seeing from the gun control side, the less I think they really care about bump stocks. They were willing to get excited about a bill that would effectively ban any aftermarket modification to a semi-automatic rifle, but I don’t notice a whole lot of movement to single out bump fire devices and ban those, especially if that means having to eat SHARE or National Reciprocity in return. It’s almost like if we concede we’re willing to trade something, that must not mean it’s important to us, and if it’s not important to us, they aren’t interested in a deal. It’s almost as if the attitude is: “Those people have to be made to pay.” Nope. Sorry. We’ve taken enough blame for the actions of psychos, and we’re done with that.

53 Responses to “The Evolving Deal on SHARE and National Reciprocity”

  1. AnOregonian says:

    “I’m a bit surprised lawmakers are actually more wary of that than they are about National Reciprocity.”

    I’m of the same mindset (130dB still being really damn loud seems a lot easier to demonstrate than a CCer in NYC not being a danger to anyone), but my wife from the very start argued that the general public was going to be opposed to silencers much more than national reciprocity.

    And her general argument goes:
    Concealed carry is out of sight, so out of mind, therefore not scary.

    Silencers on the other hand, look scary and ‘sound’ scary.

  2. Ian Argent says:

    National Reciprocity can be struck down by the courts. Moving suppressors to Title I can’t be.

    (Will the courts do so? No idea. But they could, so…)

    • Mike says:

      No way the courts can strike down national reciprocity. It would require them to throw out 70+ years of precedent that Congress can pass any law they please as long as they sprinkle “interstate commerce” pixy dust on it first.

      • Ah. but you’ve forgotten the “unless it involves guns and then we just vote politically” precedent ;-)

      • Ian Argent says:

        The bill I saw (as explained by the author) said non-resident permits would be forced to be reciprocal. That would mean that states would not have control of their own permit process, it would be down to the lowest requirement for non-resident permits. I don’t see the courts allowing that.

        LEOSA didn’t even go that far – you had to get your permit from the state you were resident of.

        • Matt says:

          The non-resident permit should be a thing in reciprocity. The whole point is to drag the remaining holdouts on carry into the civilized world. They want full faith and credit for other licenses, including marriage, then having a license from another state, resident or not, should not be an issue given those non-resident permits are issued at the same standard or higher than those of residents.

          And I disagree with LEOSA and I think it shouldn’t exist.

          If states won’t honor the Bill of Rights, all of them, then no, they shouldn’t have control over their permitting processes. They can remain “May Issue”, whine and scream and their residents will seek options that will allow them, under Federal law, what their state denies them due to politics.

          I look forward to the screaming. Been too long in the coming.

          • Ian Argent says:

            LEOSA has one use for us in the fight for national shall-issue. It established a precedent that Congress can force the states to issue – which is why NJ (among others) sued, back in the day.

            I’d really have preferred that congress simply made the states recognize each other’s resident permits (or residency for the concarry states), and make states accept “personal self-defense” as a “good, necessary, or proper” reason for issuing a permit, as determined by the applicant, and make them conform to the NICS SLA for any background check requirements. It’s still suck for me, given NJ’s tiny flaming hoops for getting a permit even after you are adjudged having justifiable need, but it tramples on the state’s self-governance the least.

    • ParatrooperJJ says:

      The precedent has already been set by LEOSA.

    • MarkPA says:

      The courts can find a law to be unconstitutional; that is how they can strike the law down. Now, then, how is it that this might happen?

      First, Congress would have to neglect to include a “sever-ability” clause; in essence, saying that if SCOTUS finds one thing unconstitutional then they can only render the entire law unconstitutional. Congress rarely does this; they can by oversight, or deliberately in order to set-up the law with a “poison pill” to ensure that the courts will not tear-out one provision without tearing out the entire law.

      Second, Congress would have to design a law based on a single flawed concept. This would be either by negligence; or, as a clever ploy to hope that SCOTUS would spot that flaw.

      I’m fearful that Congress is not taking this threat seriously. And so, any National Reciprocity law is vulnerable to subjecting innocent inter-state carriers to prosecution (persecution) for a decade before SCOTUS decides whether it likes National Reciprocity or not.

      What good will it do us if dozens of carriers have to rot in prison for 10 years waiting for a SCOTUS ruling? We ought to push Hudson to amend his bill with the foregoing views in mind.

      The N-R bills we have seen have their pretext that a gun has passed in interstate commerce. E.g., a Colt made in CT was shipped to a PA dealer who sold it to a PA resident who drove into NJ. Pity the Colt buyer who is a CT resident buying from a CT dealer who then drives into NY. His gun didn’t cross state lines in commerce. Likewise, a PA resident who made his own gun and carried it into NJ would not have a gun that crossed state lines in commerce.

      The N-R bills also try to pull in residents of Constitutional-Carry States who may carry with their Driver’s Licenses. The bills make no reference to Congress’ power to compel States to recognize the “acts” of other States; a flaw of omission.

      I think Hudson ought to revise his bill to include a list of pretexts. Truck drivers carrying cargo in interstate commerce. Truck drivers carrying cargo (intrastate) that had traveled in interstate commerce. Salesmen, business-travelers etc. traveling interstate in furtherance of commerce. Anyone carrying a CWP issued by his state of residence. Anyone carrying a CWP issued by any state where he is NOT resident.

      Under such an approach, the Won’t-Issue States could fight some pretexts, but NOT ALL pretexts. And, they would have to fight each pretext one-by-one. They could “win” only in a long slog getting SCOTUS to strike-down one pretext at a time, and then, only some (but never ALL) pretexts.

      • Mike says:

        Under Wickard v Filburn even the Colt in CT is involved in interstate commerce because buying the Colt from CT means that you didn’t buy the Les Baer from IA. Not to mention that the steel in the gun wasn’t mined, refined, and smelted in CT. The machine tools that worked on it weren’t made in CT etc. Everything is interstate commerce.

        • MarkPA says:

          I’ve heard the Wickard argument; but, I’m not persuaded.

          If there was no precedent for finding a law unconstitutional because it stretched interstate commerce too far then I would have to give your point great credence. I could claim that there will eventually be a first. But this isn’t the case.

          The first gun-free schools zone act was struct down on grounds of too little association with commerce. The violence against women act was also struck down. Now, there are two precedents that weaken Wickard.

          So, if you were writing a Congressional bill, you should ask yourself whether you want to rely on a relatively weak argument for affecting interstate commerce. If you seek-out the weakest argument you could find then you are tempting SCOTUS to find your Act a third precedent. Shouldn’t you look for the strongest interstate commerce arguments you can apply to your bill? Shouldn’t you look for other Congressional powers to justify your bill?

          Think of the rationale for a law as a “corner-stone”. Do you want to rest your Act on a single weak corner-stone? Or, rest your act on multiple and strong corner-stones? Make it easy/hard for SCOTUS to dismiss your weak/strong rationale?

          It seems to me that it is “cheap” to anticipate this issue when drafting the bill and provide relatively strong rationale(s). It’s expensive to dismiss the issue counting on SCOTUS to find your Act to be constitutional just because you thought it ought to support every bill you write.

      • HSR47 says:

        “Pity the Colt buyer who is a CT resident buying from a CT dealer who then drives into NY. His gun didn’t cross state lines in commerce.”

        Actually, that’s not how the retail gun business generally works. For the most part, local gun stores don’t deal directly with manufacturers, and instead deal with distributors. While there are some distributors that have warehouses in NY, many of them are elsewhere.

        Thus the gun in your hypothetical situation likely actually ended up in the warehouse of a distributor in another state (like OH, SC, TX, LA, NY, or FL).

        That said, I don’t disagree with the basic premise of your argument: We should push for federal gun laws to be absolutely ironclad, and leave no room for the courts to let the bad states weasel out.

  3. Patrick Henry, the 2nd says:

    Getting National Reciprocity and removing the “sporting purposes” language would be a huge win. I’d be sad at not getting HPA, but I think that’s a win for us long term.

  4. Erin Palette says:

    On the one hand, I’d definitely prefer national reciprocity to suppressors, mostly because I’d get more use out of the former.

    On the other hand, I’m upset that we’d have to cave on this. I figured that just giving up bump stocks would be enough.

    • Chris Wilson says:

      I want both along with my bumpstocks (if I wanted to get one).

      If I had to choose, I’d give up the bumpstocks. Suppressors HAVE to come off the NFA list.

      • bor says:

        As someone with severe permanent ear damage from gunfire, I agree. Gunfire noise is causing injury to most shooters every time the shoot and they don’t even know it.

        • HSR47 says:

          What?

          • bor says:

            130 decibles is still loud enough to damage your ears when you shoot. The damage is usually unnoticable until it is too late. The audiogram only picks up hearing damage when you have already killed 90% of the hair cells in your ear at a particular frequency.

            I got hyperacusis from shooting a shotgun while wearing earplugs. The earplugs did not stop it.

            This means I have intolerance to noises and causes severe ear pain. Been going on off and on with me since 2012.

            I am one of the unlucky ones. It could happen to you too though. I shot for years while wearing plugs + muffs with no apparent problems. Then I shot a damn shotgun ONCE and I forgot my muffs (but was wearing plugs) and it screwed my ears.

            If you want to read about hyperacusis go to:

            http://www.hyperacusis.net

    • MarkPA says:

      I wonder if it’s worth-while starting a court case on suppressors. One approach might be to appeal some case of a hobbiest who was convicted. Another might be to start a case based on a Form-1 to make a suppressor while refusing to pay the $200 tax. Make a case that – when adopted – $200 was extortionate and there was no explanation as to why suppressors ought to be regulated out-of-existence. If the law was flawed from the outset it didn’t get any better via devaluation of the currency. And, now, it’s a tax on a safety device. Does Congress have the power to regulate a 1 year delay and a $200 tax on a safety device? If it has this power-to-tax then it has the power to tax nearly anything other than the right-to-vote. Does this pass intermediate scrutiny?

      • HSR47 says:

        For the most part, your arguments are totally non-starters from the perspective of the sort of judicial activism that got us Heller and McDonald: If the courts saw things from our point of view, they never would have upheld the NFA in the first place, and we sure as hell wouldn’t still be dealing with it 80+ years later.

        On the whole, the only thing you mention that has anything approaching a potential for positive jurisprudence is the last pair of arguments: That the $200 tax is illegitimate under the poll tax precedent, and that the indeterminate processing timeline is a violation of the constitutional guarantee of speedy trials.

        Even so, I doubt that the courts would bite, unless they saw a way to turn the screws on us even harder.

        • MarkPA says:

          Perhaps you are correct. However, each time there is turn-over in the make-up of justices in SCOTUS there is a new opportunity. Just because the NFA has stood for 80 years doesn’t mean it has been thoroughly challenged. In fact, it has hardly been challenged at all. The Miller ruling didn’t resolve anything to the degree that it has been thought to resolve the 2A. The case was returned to the trial court for final resolution. By this time the case was mute and the trial court never took it up. Perhaps – this is merely theoretical – the trial court would have found that short-barreled shotguns were part of regular military equipment.

          The poll tax issue is an argument; but it is one by way of analogy. It took a Constitutional amendment to prohibit poll taxes. The counter-argument would be that Congress can tax anything unless there is an explicit Constitutional prohibition.

          Clearly, it’s the case that there is no SCOTUS ruling on taxing silencers $200; nor on waiting a year to get your stamp. Nothing stops us from litigating this particular point.

          Under what argument was the silencer tax Constitutional in 1934? There is no mention of why silencers were included; no mention of gangsters using them. Best guess is that there was fear that they would be used for poaching game during the Depression; but that is mere conjecture. How could the Court decide whether this tax was Constitutional if there remains no record of Congress’s objectives or rationale? On this ground, it seems to be arbitrary.

          Is a silencer an “arm” under the 2A? If it is an “arm” then that drags in the 2A; if not, then the 2A is not involved. Defining an “arm” under the 2A is one of the things SCOTUS must do to rule; and, we need to think this one through.

          Whether a silencer is an “arm” or not, it is clearly a piece of safety equipment. It also reduces the extent to which gunfire at ranges is a public nuisance. The arguments about silencers being used in crimes is pathetic; and, it seems to be contemporary rather than an original Congressional objective. Did Congress have the power to tax a piece of safety equipment out-of-economic-existance? This is an interesting question; and, it colors the whole NFA’34. The $200 tax didn’t necessarily tax machineguns or short-barreled shotguns out-of-economic-existance; yet it had this effect on silencers.

          The whole premise of structuring NFA’34 as a tax was that guns couldn’t be forbidden under the 2A; yet, they could be taxed under the taxing power of the Constitution. History shows that the NFA’34’s $200 tax was not enough to destroy the commercial market for machinguns (or SBSs); but, it was enough to do so for silencers. Would SCOTUS hold that Congress has the power to tax anything (other than the right to vote) out-of-economic-existance because it doesn’t “like” the object of taxation? On nothing more than a whim? Could it impose a $10,000 tax on red cars? On hearing aids? On wheel chairs? Would any such tax pass a “rational basis test”? Intermediate scrutiny? Heightened scrutiny?

          Today, the $200 tax on silencers has become less of an issue. It’s still an issue; just less of an issue. The more important issue today is the waiting period which might be as much as 12 months. Can Congress pass a law requiring a paper-work requirement (applying for and receiving a tax stamp) and then underfund the agency that processes the paper-work so as to delay the buyer from acquiring – a piece of SAFETY EQUIPMENT? Would we force a citizen to wait 12 months for paperwork to buy any other piece of safety equipment?

          How about a requirement that workmen apply for a $5 tax stamp and wait 12 months to buy steel-toed boots. In the interim, they must handle heavy objects with great care lest they injure their feet.

          I really don’t think that either the $200 tax or the 12 month waiting period will fare well at SCOTUS. Moreover, this is pretty obvious to anyone who cared to think about the question for a few minutes. Only Congressmen have an interest in thinking about whether they want to run the risk of SCOTUS taking a silencer case and striking it down. If SCOTUS found that the tax and waiting period for silencers was unconstitutional then that would create a precedent that Congress would fear would constrain their freedom to tax and regulate in other areas. Would Congressmen want to take this chance? Or, would they all much prefer to quietly pass SHARE?

          As long as we don’t threaten Congress with a judicial case on the unconstitutionality of taxing and delaying silencer sales, Congress is happy with the status quo. Why would we want to make Congress happy?

      • Rod says:

        “If it has this power-to-tax then it has the power to tax nearly anything other than the right-to-vote.”

        The court ruled that Obamacare is authorized by neither the commerce nor the necessary-and-proper clause, but bent over backwards to uphold it any way, on the basis of the power to tax your decision to NOT purchase something.

  5. National Reciprocity is such a win I’d go for it in a heart beat and I’d trade a lot for it if it were up to me. I’m amazed at how many once totally anti-gun people I’ve met who at least turned marginally pro (some) guns because they felt endangered (i.e. a stalker) and got a CCW.

    Marginally pro-gun is still a win. And if we’re going to beat the anti-gun cultures in the coastal states we’ve got to find a way to make guns a part of their life and something they can appreciate. Sport shooting ain’t gonna do it, legalized CCW is a good start.

    • Richard says:

      We have got to learn how to be incremental. Take reciprocity now and come back for suppressors the next time.

      • HSR47 says:

        If the deal on the table was SHARE + Reciprocity + an extremely narrowly tailored bump stock regulation (i.e. it applied only to bump-stocks that function like the slidefire, and to nothing else), then it might be acceptable. If it also included the repeal of 18 USC 922(o), then the answer wouldn’t be “yes” it would be “hell yes.”

        If the “deal” is a watered down version of SHARE (it sounds like the proposal involves getting rid of more than just the HPA language) + watered-down reciprocity + a poorly worded bump-stock ban, then it’s not an acceptable trade — the answer isn’t just “no” it’s “hell no.”

      • Bill M Cyrus says:

        Quite honestly we need to say to hell with what the opposition wants and get BOTH reciprocity and HPA. This nonsense of taking orders from the other side needs to stop right here and now.

  6. bor says:

    Crap. I want suppressors deregulated.

    • Bill M Cyrus says:

      If we get suppressors deregulated the other side is pretty much history. We need to win this permanently and removing the #1 thing that intimidates would-be new shooters is the way to do it.

  7. The anti-gunners aren’t in it for the bump stocks. They’re in it because we hate it. If we don’t scream bloody murder about what they’re doing, they don’t get the thrill of hurting people they hate.

    • Sigivald says:

      Now I just want to tar-baby them.

      Find something that’s utterly unimportant and pretend to care deeply about it, just to get them to waste time and energy on it…

  8. Heather says:

    We’re busy writing essays on why we should be “allowed” carry permits for three different states in preparation for our next PCS. I have all of my fingers crossed for national reciprocity.

  9. Bram says:

    As a New Jersey resident, national reciprocity would be a miracle. I could get a permit from FL or Utah and pretend I live in a free state.

  10. dwb says:

    Honestly I do not get the Big Love for National Reciprocity. It wont do anything.

    And, please do not bore me with assertions it will cause CA or NYC to be shall issue. It won’t. CA and NY already have their own version of reciprocity (a permit issued in one county is good statewide) with no effect. The love for National Reciprocity seems premised on the idea that legislators in anti-gun states will be shamed into letting people carry when they see non-residents carrying. Which they won’t, because they have no shame.

    • TheJack says:

      Minor point. NY residents with permits from outside of NYC Cannot legally carry in NYC

    • The Jack says:

      There’s also two other prongs for national reciprocity.

      1) It makes interstate travel easier. Given one has less worry when traveling that they cannot carry. (Mag limits and the like are still a factor though…)

      2) Yes there’s no shaming of the politicians, but ignorance is the gun control advocate’s best friend. The more ignorant people are of guns, gun owners, and the legal usage of guns for self defense, the more amenable to gun control they are.

      Many people in May Issue states don’t even /believe/ May issue works the way it does when you tell them about it.

      • dwb says:

        FOPA was supposed to make interstate travel easier too, and yet here we are with NYC, NJ, and MD Transportation asshats harassing people. Yes, states share CCW information with Maryland so that the police can look you up during a traffic stop and ask you where your gun is.

        Gun hating states will simply find ways of harassing out of state visitors. Much the way small towns in South Carolina create speed traps and hand out traffic tickets on the way to Myrtle Beach. I got one of those once. 500 miles is too far to show up in court and fight it, so you have little choice but to pay the fine. In the end, they will make harassment barely legal and suppress out of state carry.

        As for #2, laws do not educate people. Education educates people.

        The only way to achieve the end goal of national reciprocity (national shall issue) is to get justices on the Supreme Court who will uphold the constitution.

        • Richard says:

          Perhaps we need reciprocity on harassment of visitors. Not honoring drivers licenses from states that harass gun owners would get their attention.

    • Brad says:

      I can’t speak about NY, but you are very very very wrong about Commiefornia.

      Over 75% of the population of Commiefornia live in counties where CCW permit issuing is effectively prohibited. You can only get a permit based upon your county of residence. You can’t just go over to another county which uses reasonable standards in order to get a CCW permit.

      • Hank Archer says:

        In California, it’s not just counties that determine issuance. You can live in a county with very reasonable CCW standards, but if you live within the boundary of a city with a restrictive policy you’ll never get a permit.

  11. Sigivald says:

    As an aside, I’d support a no-end-result-in-what’s-covered change in the NFA that simply made the AOW section make any goddamn sense to normal human beings.

    Because that’s the one part of the NFA that makes my brain ache every time I have to think about it.

    • HSR47 says:

      The question of “where does the line between AOW and not AOW lie?” is certainly a good one. It’s also fairly hard to understand unless you have a fairly broad understanding of the laws and regulations that apply to firearms at the federal level. I’ll try to give a simple list here:

      * Handguns with non-rifled barrel(s).

      * Combination guns (guns with both rifled and smooth-bore barrels) with barrels shorter than 18″. This was a carve-out for the Marble’s Game-getter.

      * Handguns with vertical foregrips — The definition of “handgun” refers to firearms designed to be held/fired using only one hand; A pistol with a VFG is obviously designed to be fired with two hands, ergo it isn’t a “handgun.”

      * “Concealable” firearms — In general, if a firearm doesn’t look like a gun when it is ready to fire, then it’s an AOW. This is why the “Braverman Stinger” pen gun is NOT an AOW, but most other pen guns are — the Stinger needs to be unfolded into a fairly traditional “gun” shape in order to be fired; it can’t be fired in it’s “pen” configuration. The same logic is why the “wallet holsters” for pocket pistols that allow the gun to fire without “unholstering” are verboten: They allow the gun to be fired without externally looking like a gun. This also generally includes things like cane guns, belt buckle guns, and similar.

      Also, if the OAL is over 26″, it generally isn’t an AOW. This isn’t actually part of the governing statute(s), and I don’t believe that it’s in the CFR either. In other words, BATFE basically just made this up; That said, they appear to have largely lifted the 26″ OAL standard from the definitions of SBR/SBS, so it’s actually a fairly solid argument. This is why the Mossberg 500 (590?) Shockwave and Remington Tac-14 are both kosher federally — they’re both over 26″ OAL.

    • Ian Argent says:

      I have said, (over and over) that the non-MG and non-DD categories of the NFA (what is or is not a handgun, longarm, AoW, SBS/SBR) are weak to a well-plotted “unconstitutionally ambiguous” court attack. Sebastian disagrees with me, in that he thinks (or did the last time it came up) that there is no way the federal judiciary will rule to allow sawed off shotguns on Title I (though as long as there’s the “sporting purposes” language and non-SP shotguns are Destructive Devices, that’s not as big an issue).

      It’s just not as low-hanging a fruit as we’ve litigated in the past.

  12. Brad says:

    In theory, I’m in favor of the SHARE compromise described. But in practice?

    I’m skeptical.

    How poorly is the bumpstock ban written? Is it even possible to ban bumpstocks without also endangering all semi-auto rifles?

    Will the bumpstock compromise even aid passage of SHARE? If not, it’s a pointless compromise. Why give up something in exchange for nothing?

  13. Brad says:

    I expect the Democrats in the Senate to filibuster any gun legislation which on balance is NOT anti-gun.

    There just are just too many Democrats in the U.S. Senate for the Republicans to defeat a filibuster.

  14. rd says:

    National Reciprocity will erode the anti-gun forces by regularizing hand gun carry nation wide, especially in the big blue bubbles of NYC and Los Angeles.

    A couple comments, the law should state guns and ammo should be legal in NY, Mass, and NJ if it is legal in the CCW Permit issuing state. There should be no BS make and model or magazine capacity isues. I can just see NY changing their laws again to something stupid like four or five rounds, including revolvers. Yes it will result in Court fights, but Federal Law trumps all.

    My goal is having an NRA Convention in Manhattan, and everyone carrying, just to blow their minds. Maybe include marches to NBC, ABC, CBS, CNN, and NYT?

    • dwb says:

      “state guns and ammo should be legal in NY, Mass, and NJ if it is legal in the CCW Permit issuing state”

      …and also magazine capacity and number of spare mags you are allowed to carry.

      lol, good luck with that.

      All this demonstrates is that what people really wish for is national preemption of all gun laws. We have that, actually, its called the 14th Amendment. All we need to do is enforce it.

  15. Dave says:

    You will not be carrying in NYC. The day N/R passes, states from the 2nd, maybe the 3rd, definitely the 4th and 9th circuits will sue and get an injunction on enforcement of the law. Their respective courts will undoubtedly hold the low unconstitutional, no matter what other circuits say. it’s doubtful SCOTUS takes this up.

    So we may get a week, possibly two weeks before the law is overturned and NRA-ILA, in the midst of either elections, or election prep will not have enough money to raise a court defense.

    They will have enough money to send out mailers 2-3 times per week seeking money from members though.

    • MarkPA says:

      A tactical approach to “National-Reciprocity” occurred to me; I solicit a critique.

      Imagine a gun-rights organization promoted my idea; definitely NOT NAGAR, GOA, nor even NRA. Maybe an organization with a reputation for negotiating a compromise, such as SAF. Here is the scenario:

      1) Something like an open-letter to SCOTUS. Look at DC v. Wrenn; the handwriting is on-the-wall. Eventually, you will have to take up a 2A carry case and the rationale in Wrenn will weigh heavily. You will have no choice but to find the “average” [wo]man has a right to bear arms. It’s only a matter of time.

      2) Lobbying with the leadership of Congress. Given the inevitability of #1, Congress’s prerogative of weighing-in on the gun-carry issue will be diluted. As much as you loath doing anything at all on this issue, you either do something or you acquiesce to SCOTUS calling the shot. You have one tool available to you that suits your purpose: You threaten the last 8 Won’t-Issue States with National-Reciprocity on populist terms if these 8 States refuse to solve the problem and reduce the political pressure for Congress or SCOTUS to act.

      3) Finally, a smoke-filled room meeting with the 8 Won’t-Issue States. You guys have enjoyed self-determination for a long time; but the free ride is coming to an end. Either Congress or SCOTUS could take away all your freedom to do as you wish. You can either act preemptively; or, wait for Congress or SCOTUS to act.

      There is a well-established system of: a) unilateral recognition; b) bilateral reciprocity; and, c) non-resident CWPs. You COULD – if you wish – participate in this system. If you choose to do so then most of the political and judicial pressure for a National-Reciprocity bill or a SCOTUS decision (applying Wrenn nationally), will slacken. You will remain relatively free to set your own standards for carry in your State.

      Your weakest position is refusing to issue CWPs to non-residents. SCOTUS won’t uphold that. Your second weakest position is that your State’s situation is so unique that no other jurisdiction’s CWP is “good enough” for your State.

      Addressing MD: ‘How can you hold that DC’s standards for issuing CWPs is not good-enough for Maryland?’ Addressing NY: ‘How can you hold that NJ’s standards for issuing CWPs is not good-enough for New York?’

      I envision a multi-tiered scheme of bi-lateral reciprocity. It might look as follows. The Eastern States: DC, MD, DE, NJ, NY, MA, RI negotiate a stringent standard for training, testing and live-fire qualification (T-T-Q). The Western States: CA, OR, WA, HI negotiate a somewhat less stringent standard for T-T-Q. The remaining States adopt a “recognition” policy without dickering over T-T-Q. (This is merely one of countless possible outcomes. I think there will be only 3 or 4 tiers; not 25 tiers. I imagine at least 3 or 4 States in a tier, perhaps not so may as 7 as I’ve illustrated for the Eastern tier.)

      Any citizen/green-card-holder, regardless of his residency, could apply for a CWP in 1, 2, 3 (+) States – one each in these several tiers. E.g., an OH resident might be interested in getting a non-resident permit in one of the Eastern tier States; an ID resident might be interested in a non-resident permit in one of the Western tier States. Only a few people would travel so widely as to want to get permits in 3 (+) States giving him 51-jurisdiction coverage. Having to get 2 or 3 CWPs is not so onerous as the situation under which we live today.

      Such a scheme (of a few tiers) completely guts the argument “race-to-the-bottom” that stands in the way of Congress passing National-Reciprocity. Each State would be at liberty to set its T-T-Q standards (impediments) as high as they wish – PROVIDED that the State with the most onerous requirement can get at least 1, preferably 2 other onerous States to grant bi-lateral reciprocity.

      Now, suppose a resident of VA wishes to carry in DC or MD. This VA guy could choose to get a non-resident permit in either DC or MD, whichever is less costly and less inconvenient. MD could set its fees as high as it wishes and make it as difficult as possible to apply; in which case, VA residents would get DC permits. That might be acceptable to MD because – if a VA resident had a N-D in MD – the MD politicians could deflect blame to DC. Likewise, the OH resident could apply to either NJ or NY, whichever was cheaper or less inconvenient.

      The last 8 Won’t-Issue States would be confronted with a choice: begin to implement a tiered scheme of bi-lateral and Non-Resident CWPs; or, wait for Congress or SCOTUS to take the initiative – eventually.

      Turning back to Congress, we tell the leaderships that they should lean on the 8 Won’t-Issue States to act; or, the PotG will take-out their wrath on incumbents who are perceived to be anti-gun. If Congress won’t put pressure on these 8 States then they will pay the consequences politically.

      Turning back to SCOTUS, we tell the justices that the last 8 Won’t-Issue States won’t honor the Constitution; and, Congress – the political body – won’t find an acceptable solution via National-Reciprocity. Therefore, SCOTUS must take a carry case and resolve this important Constitutional issue.

      I think this approach resolves the impediments that Congress uses to duck its responsibilities. I think it also tells SCOTUS that the political bodies (these 8 States’ legislatures and Congress) refuse to do their duty; so the Constitutional issue will have to be resolved by SCOTUS.

      The choice we face is to try to accelerate the liberalization of carry law via an – admittedly – compromise measure; or, wait for a better solution from Congress or SCOTUS.

      • dwb says:

        Read the cert briefs in Florida v Norman. They make a very important and often overlooked point: In Caetano (stun gun case, opinion issued per curium), the Supreme Court reversal presumes that there is a right to carry arms outside the home (Caetano was convicted of carrying outside home).

        The writing is on the wall, but I do not expect the 17 states that wrote a letter to Congress opposing National Reciprocity to just give up. They will fight tooth and nail.

        • MarkPA says:

          Yes, they will want to fight tooth and nail. Yet, they are facing a substantial risk that Congress or SCOTUS will make a move to substantially restrict their power to do as they please. Are they too dense to see this risk? Are they too hide-bound to be willing to play along with a tiered scheme of training-tests-qualifications?

          I acknowledge that the answers to my questions may be ‘Yes – these 8 States are too dense, too hide-bound’.

          Under that assumption, would it make any sense to make the proposal? Then, upon the predicted failure, take our complaints to Congress and SCOTUS? We tell the leadership in Congress that we tried; these States wouldn’t budge. We tell SCOTUS that we tried; these States wouldn’t budge. Now there remains no alternative to Congress/SCOTUS/both to impose the rule of Constitutional law upon the last 8 recalcitrant States.

          Or, should we simply remain quiet until the fullness of time when Congress or SCOTUS takes the initiative without our having made any compromise proposal to the 8 States?

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