14th Amendment, Courts or Congress

This started with a brief Twitter exchange between myself and AntiTango, about whether or not we want Congress involved in enforcing the 14th Amendment through creating a national reciprocity requirement, or whether we should get it through the courts.

I’ll start off by saying that we’re not getting carry in any of the remaining hostile states or localities, save maybe Illinois, without some kind of federal intervention, either through the Courts or through Congress. California, nor Maryland, nor New Jersey are going to pass right-to-carry legislation on their own; it will have to be forced on them through federal action, one way or another. I think it needs to be a combination of the courts and Congress. I don’t think one or the other will suffice.

It would be relatively easy for the courts to impose on, say, California, for instance, that they have to issue licenses in a manner that is not arbitrary or capricious, effectively rendering them shall-issue. I think it’s a tougher sell to suggest the courts impose a national scheme for license recognition. The former only requires striking down a portion of California’s licensing law, while the latter actually requires the courts to enact policy, which I think they would be reluctant to do. I think imposing universal licensing recognition is actually a pretty good use of Congress’ powers under the 14th Amendment.

There is some precedent that makes that use questionable, and shouldn’t be overlooked, but overall, I’d prefer to put the courts in a position where they’d have to thwart the will of Congress, rather than putting them in a position where we are asking them to formulate a national scheme through which licenses would be recognized. It would be far easier, I think, for the courts to uphold licensing, but require the states to issue to non-residents, as a means of satisfying the constitutional requirement. For a lot of reasons, I don’t think this is as ideal as just having forced recognition. The Courts could also prevent states from enforcing those requirements for non-residents, but that seems inconsistent, and I doubt they’d be willing to do that as well.

The argument can be made that Congressional Acts are easier to overturn than precedent, but I would note that our opponents have had zero luck, in the 42 states that have passed RTC so far, of reversing or limiting that policy, and it’s been two decades now. While it’s true that over the long term, it’s hard to predict, but precedent could also be overturned over the long term as well. I don’t think either route is a sure thing, and each has its advantages and disadvantages. I’m not very fussy about the tool, as long as the job gets done.

15 thoughts on “14th Amendment, Courts or Congress”

  1. What about the Full Faith and Credit clause? Seems to me that it specifically gives Congress the job of answering the question “What does my State X carry permit mean in State Y?”

  2. Agree completely with the principle.

    I see the “10th Amendment State’s Rights” Brigade warming their keyboards, so I will do my best to temper their concerns by asking a simple question:

    “Do the rights of the state outweigh the rights of the individual?”

    If the answer is yes, then write a check to Brady today, because their entire premise is that the Second Amendment does not apply to the Individual…it is a “collective right”. Collective means “government controlled”.

    If you believe that the right of the individual trumps the ability of the government to restrict it, then welcome to the team.

    It really is that stark.

    States do not have rights. None. Rights are things given to people. A state is an amorphous ‘thing’. I understand that “State’s Rights” claims are simplistic words to recognize our Federalist system, but it is important to say out loud every once in a while, that “Governments have no rights. Only people have rights.”

    The right of the individual must always trump the ‘right’ of the government to restrict it. That means state and federal government.

    The federalist system means that I have two government to help protect my rights. If one fails, the other can step in and help. In my case (in MD), the state fails me. The US Constitution allows the federal government to come in and help. (14A, 2A)

    Congressional legislation is a floor. It cannot undo the Constitution. They cannot pass “No Carry” laws. All they can do is set some universal rules of the road that apply to the individual, regardless of their state of residence.

    Be more concerned with what the federal legislation does not do: it does not undo evil Gun Free School Zone laws that make it a federal crime for an out-of-state permit holder to come within 1000 foot of a school, even after the proposed legislation passes. Read that again: HR 822 will let you carry out of state, but it won’t protect you from federal charges for driving by a day-care Pre-K when there.

    We could argue philosophy, but I’d prefer we focus on execution.

  3. California, nor Maryland, nor New Jersey are not going to pass right-to-carry legislation on their own

    You’ve got a double-negative there.

  4. I don’t think it’s practical to sit back and wait for any one solution. As you pointed out and I’ve echoed to my friends we’ll never get shall issue in some places but it’s even worse with states like NY prosecuting FELONY possession charges against travelers, any state with a “possession permit” requirement, places like NJ who practically ignore FOPA…

    The list goes on.

    Just as we are never going to convince some gun rights groups that HR822 is a step forward, we will never convince some state governments to undo their restrictions. Look at the response from MD to Williams for some light reading into the mindset of the true believers.

    We got into the pickle we’re in because we weren’t really politically active as a demographic for generations. That is slowly changing.

  5. My understanding is that the 5th section of the 14th amendment gives an additional power to congress, not the courts. To be consistent with that understanding, I think that state laws should stand until (or if) congress steps in and excercises its power.

  6. Laws are easily amended; SCOTUS decisions not so much. I’d rather have a strong SCOTUS opinion than a vague and flimsy piece of legislation. The lower courts may be dragging their butts with the newfangled 2A rights but the SCOTUS may very likely set them on the right path.

  7. A good comparison is on the gay marriage issue. If you want marriage licenses for gay couples in New York to be valid in Texas, New York needs to recognize Texan carry permits.

  8. As much as I respect AntiTango’s argument, he makes it without understanding the past history of similar statutes.

    First, the FOPA Transportation Act is using the same commerce clause provision as HR822 would. Before 1986, the state of New York had the 100 percent full ability to arrest someone for having a handgun in the trunk of one’s car while transiting from Pennsylvania to Vermont. FOPA 1986 put a pretty good stop to that for car transport violations. Not one person can point out that someone was convicted using just car transport. All convictions or attempts at arrest have been airline stuff with the Port Authority of New York and New Jersey.

    Stearns/HR822 works on the same principle. There are some quirks that need to be worked out. Also, the HR822 thing is not the final language. Anything involving reciprocity will come out of the Senate first, probably with different language.

    The reason they are using commerce rather than “bear arms” directly is due to City of Boerne, TX v. Flores.

    So, to recap, HR822 uses the same principle as FOPA Transportation provisions. Opposing it on commerce clause grounds is sort of supporting New York arresting people for handgun possession in the trunk of their cars….

  9. “I would note that our opponents have had zero luck, in the 42 states that have passed RTC so far, of reversing or limiting that policy”

    Not true. Colorado used to recognize non-resident permits, but under Bill Ritter, that changed. This means that people from states that did not have reciprocity with CO, but who also had non-resident FL or UT permits (these state permits are recognized in CO), can no longer carry in CO.

  10. My point in disagreeing with this is two-fold. Yes, I think it COULD be a 10th Amendment violation. Not necessarily, but possibly. The second issue is that the fedgov cannot do anything properly. Anything they “GIVE” to us, they can take away. If they mandate this through an action of Congress before litigation can strike down the offending laws (No carry for YOU!), then “they gave it to us”. They can, and will, take it away or screw it up.

    We need to do this slowly. If this is taken through litigation or through the individual states granting the rights appropriately after the aforementioned litigation, then the fedgov cannot take it away. It’s a slower process, but if they don’t do it right, then like I said, fedgov will screw it up and that’s the real threat.

  11. Tango,
    That’s a static analysis which assumes that the antis make no inroads into RKBA. Keep in mind that each lower court post Heller said it didn’t apply to the states – until McDonald. Each post McDonald lower court ruling (except the 7th circuit IIRC) has said there’s no RKBA outside the home. We are all assuming that the courts are going to decide our way but remember both Heller and McDonald are 5-4 decisions. We are one heartbeat away from a bad and permanent SCOTUS ruling.

    The courts in New Jersey are made up of people IN / FROM New Jersey and they’re never going to change into people who believe there is a right to carry a gun, and they continue to deny there is a right to own one.

    Federally compelled reciprocity or recognition is a step, one that will certainly be challenged in court by a bad actor state and may well product its own court history. A deliberate pace is wise, but not a tortoise like pace in which the issue won’t be solved in the next 250 years…

  12. I am inclined to wait until we can get there through the 14th Amendment by judicial decision. If Congress has the power to require states to recognize permits from other states through full faith and credit, or interstate commerce, then a later Congress might use the same theory to prohibit gun ownership.

    There is a case that Congress could use 14th Amendment, clause 5, to pass a mandate that states recognize the right to keep and bear arms, but then it will be dependent on how the Supreme Court rules on “bear arms.” I think there is a good chance that open carry may be found protected, but concealed carry, almost certainly not, simply because concealed carry had, by 1868, moved into the realm of being unlawful in many states (although perhaps not most). That is hard to defend as being a right, in the same way that open carry was still a right.

  13. The second issue is that the fedgov cannot do anything properly. Anything they “GIVE” to us, they can take away. If they mandate this through an action of Congress before litigation can strike down the offending laws (No carry for YOU!), then “they gave it to us”. They can, and will, take it away or screw it up.

    Then why didn’t they in 1993 and 1994? IF what you say is correct, if they could allow trunk transport via the commerce clause, they could ban it too. Why didn’t they?

  14. Sigh.

    The 14th Amendment amended the 10th Amendment. Higher wins.

    There are two sources of power in the 14th Amendment. Section One gives the court the power to enforce the Constitution on the states (by whichever means, DP or P or I – ignore as one or both allow it.)

    Section 5 gives the Congress the power to pass laws that allow for the protection of DP and/or P or I. Congress however, remains bound by the 2A. Parallel systems aren’t simple, but that’s the reality. And Congress has a separate power under the FFC clause.

    We are already challenging non resident permitting in Denver – Gray Peterson v. Denver Sheriff of the Week. The courts are likely to give people a right to travel based right to at least show up and apply. That’s inferior to reciprocity or remote application, but it does set a constitutional minimum. We do that in the 10th Circuit so that we can import it back to the 9th, 2nd, 1st, etc…


  15. The 10th is NOT annulled by the 14th Amendment. The 14th Amendment simply takes away some of the powers that the States previously have had.

    The 10th Amendment clearly states that “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.” All the 14th Amendment did, was to prohibit the States from violating the rights protected by the Constitution–habias corpus, free speech, keep and bear arms, etc–which, interestingly enough, were mostly protected via State Constitutions anyway, to one degree or another.

    If the 10th Amendment is dead, it’s not because of the 14th, but because our government is only marginally Constitutional, at best.

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