I’ve run into a fewthreads 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.
I spent a lot of time and effort trying to convince people, despite serious flaws in their record on the gun issue, to vote for John McCain and Mitt Romney. I thought Barack Obama was going to be a disaster for gun rights, and he very nearly was! I don’t regret what I did, because we’d be 7-2 on the Second Amendment right now on the Supreme Court if McCain had won. I feared one of the Heller Five would not make it to the end of an Obama second term, and I was right. I did not expect the GOP to grow a pair and block Obama from putting a third Justice on the Court, but thank God they did. Even if the best McCain could do is Papa Bush, we’d at least be 6-3, which is a better place to be than 5-4.
But I can’t ask people to do something I am not willing to do myself, and I just couldn’t work up enough enthusiasm to shill for Trump, and my down ticket races were Toomey and Fitzpatrick. A lot of people were enthusiastic for Trump, and did the necessary and often unenjoyable ground work needed to win elections. The future of the Second Amendment will probably owe them a debt of gratitude. I’m sorry I could not join you this time, but I will continue to do what I can to fight the good fight in a future of hopefully better candidates.
I do not trust Trump, but hopefully he at least knows where his bread is buttered and gives us some decent Supreme Court picks. I am hopeful he’ll be a better President than I expect. The people have spoken! God help us, they have spoken.
I’ve received the following. For those who can remember the beginnings of the 2A movement, Don was the person who took it mainstream, with his article in the Michigan Law Review. He thereafter served an invaluable function in reaching out to academia […]
His work represented a key foundation of the Heller and McDonald decisions. I think it’s reasonable to argue that without Don Kates there would have been no Heller and McDonald. It would be awful for his memory if those cases end up reversed or limited to meaninglessness by future courts. Let us hope that does not happen.
This one pretty much successfully sums up what’s at stake:
I’ve found a lot of folks who don’t seem to understand that the Second Amendment is not self-enforcing. You’d think this would be kind of obvious, but you’d be surprised how many people think just because the words are on a piece of paper that actually means something. When you start explaining it, I think inherently these people get that it’s not, just that they have such a difficult time wrapping their heads around the idea that federal judges would engage in such blatant skulduggery as to suggest the amendment doesn’t mean what it plainly says.
Our only hope for saving the handful of bad states for gun rights is the federal courts. If Hillary picks Scalia’s replacement, that path will be foreclosed for a generation. In that scenario, I’d be lucky, very lucky, to live to see that damage undone. Most of the folks who laid the foundation for Heller and McDonald will not live to see it. We’ll be lucky if we don’t see those cases reversed entirely.
Fact: the word “child” nor “toddler” can be found at all in the Heller decision. It was about whether a 66 year old security guard was allowed to keep a firearm in the home and ready for self-defense. Hillary Clinton has said she is opposed to the Heller decision. When she claims that this is about the children, she is out-and-out lying.
As anybody with an elementary understanding of American law comprehends, one does not need to call an Article V convention in order to effectively remove a provision from the Constitution. If, for example, Donald Trump were to claim tomorrow that the First Amendment did not protect an individual right to speech, how do we imagine that the press corps would react? Do we think that the New York Times’s editorial board would nonchalantly say “well, that’s fine because he hasn’t called for Article V repeal”?
Even without overturning Heller, her nominees would still have the opportunity to narrow to meaninglessness. Sure, outright bans might never come back, but de-facto bans, like the one that exists in New York City, could be upheld. Even Washington D.C. responded to Heller by enacting restrictions that were still quite onerous, and would never be considered acceptable in the context of other Constitutional rights. Chicago fared a little better, but only because the 7th Circuit was unusually cooperative, and it bolstered the negotiating position of the rest of Illinois, which favors gun rights. Without a fourth and strong pro-2A Supreme Court ruling, the Second Amendment is already dead letter.
Eugene Volokh takes a look at various stun gun bans. A lot of states and localities were moving in the direction of repeal before Caetano v. Massachusetts. So far, post Caetano repeals:
The US Virgin Islands
Baltimore County (though it is still on the books, but the County Attorney has announced it will no longer be enforced)
Philadelphia still has its ban in place, but at this point it’s hard to see how it would be enforceable in light of Caetano. Like I said when the ruling came out, I don’t think anything should be read into that ruling in regards to how the liberal justices would treat a firearms case, but I can’t discount the fact that Caetano was a good ruling. If we can defeat Hillary, and get a few more friendly justices on the Court, it would be possible to build on this ruling in a positive way. If things go the other way, I think we’ll be lucky to hold on to Heller and McDonald.
I hate to admit that, because I don’t like Trump, but that’s the way it is.
The Supreme Court has denied cert in Shew v. Malloy, the challenge to Connecticut’s enhanced assault weapons ban, which was passed after Sandy Hook. This will leave the ban in place. It’s probably the best possible outcome after losing Scalia, so we shouldn’t be too disappointed this was the result. It would have been far worse for cert to be granted and to lose the case, which we probably would have.
Reading the tea leaves a bit, which is always dangerous, this at least tells me the four Dem appointees on the Court probably aren’t interested in taking Second Amendment cases while the court is split four to four.
I shan’t re-rehearse my case against the civil use of terror watch lists here; those interested can read my three offerings from last year here and here and here. But I will suggest a modest course for those in Congress who remain opposed to this folly: Why not amend any bill so that it covers the entire Bill of Rights? Hillary Clinton is on record suggesting that the United States should impose some censorship on the Internet so that would-be terrorists cannot communicate with one other. Well, if the prospect of terrorists using the internet really is that dangerous — and if those who oppose Clinton’s coveted reforms are just dogmatically wedded to outdated concepts such as “freedom of speech, et cetera . . .” – then there shouldn’t be any problem with the federal government preventing anybody suspected of terrorism from using a modem, should there? Sure, at one point in American history it made sense to require due process before we stripped core rights. But that was back in the days of pamphlets and printing presses, not now when one can spread information across the world in the blink of an eye.
Read the whole thing. He also has clearly read his Alinsky: make them live up to their own standards. The arguments the Dems will make against this will destroy their own arguments for the gun portion of it.