The Licensing Regime for The Right to Bear Arms

An Indiana cop is facing felony charges for carrying in Illinois. One complication of the courts allowing licensing of a right is that it makes how to deal with things like carrying in another state awkward. The courts could certainly mandate that each state recognize the license of every other states, and Congress could also do this under their Section 5 powers of the 14th Amendment.

But the only instance we have of the courts going along with the licensing of a right are with unenumerated rights, namely the right to marry and the right to vote. The right to marry would probably be among the natural rights our founders would have agreed with, but licensing its exercise doesn’t create nearly the complications as with the right to keep and bear arms. The right to vote, prior to the 20th century, was not seen as a right, and the founders probably would not have viewed it as such. This is why we had to use constitutional amendments to grant suffrage to non-whites, women, and 18-21 year olds. But in the 20th century, the courts have ruled it’s a fundamental right, but still allow states to register voters. Again, however, the complications of registering voters is not nearly as apparent.

But the right to bear arms isn’t anything like the right to marry or the right to vote. Generally speaking, weddings are planned events. This makes it much less burdensome to require a license to do so. Every state will issue a license to people who are not residents of that state. They are only required a license to actually marry, they may enter the state to get a license or with the intention of marrying. Likewise, a person can only vote in their local jurisdiction, and only vote once. There’s very little need to travel or move while exercising these other unenumerated rights. The right to keep and bear arms, unlikely voting or marriage, is a mobile right. Indeed, while people are traveling interstate, it could be argued that’s when the need is most acute. Hopefully the courts will come to realize that licensing such a right is ultimately unworkable.

19 thoughts on “The Licensing Regime for The Right to Bear Arms”

  1. Nevermind, I see that he wasn’t in that status now. Either way, hope he wins his case.

    1. He might still be covered. It depends on how long he worked as a police officer and what he was seperated for.

  2. “The right to marry . . . licensing its exercise doesn’t create nearly the complications as with the right to keep and bear arms.”

    It would actually seem to me that the current, ongoing debates about same-sex marriage — i.e., its “legal” or “licensed” status across state borders — contain many of the same complications illustrated by the differences in licensing of the RKBA across political boundaries. The situation may even be analogous in terms of how “cultural differences” play into the question.

  3. I really appreciate the excellent legal history lesson, Sebastian, especially on the “right” to vote. I am burdened with the number of youth who believe voting is/was a universally fundamental right granted by the Founders. My research discovered it to be basically a privilege granted by the people of each State to those whom they felt had the most “skin in the game” – I.e., landowners, business owners, taxpayers, etc. I think the recent perception stems from the mis-labeling of our government as a democracy, instead of a republic. I have several quotes where the Founders loathed or even demonized democracy as tyranny of the majority, two wolves and a lamb voting on what’s for dinner, etc. To prevent the bread and circuses campaigning we have today, they disdained letting the general public elect the President or the Senators. The common man was to only to be DIRECTLY represented in the federal government by the House. I know opinions differ on this, but when I see all the buying of votes with federal socialist handouts, I wonder if those “dead white male Europeans” weren’t a lot smarter than Ivy League professors give them credit.

    1. A couple quick thoughts:

      Those Founders were almost if not as completely class-conscious as their European counterparts they were overthrowing, and putting aside fine phrases, were as fearful of the unwashed masses as anyone across the ocean. They were quite simply protecting themselves.

      While I am a great fan of Anti-Federalist thought, as having been largely vindicated by history in terms of predicted political outcomes, I also have to recognize that the seeds of what would become the Civil War were planted in 1787, and much or most Anti-Federalist suspicion of a strong central government came from southerners, based on awareness that the northern states had almost no dependence on slavery, and northern sentiments already were strongly abolitionist. So, even if Anti-Federalist sentiment was proven prescient in many cases, it too was inspired by the protection of pro-slavery economic self-interest.

      Last I have to point out what you are probably already expecting — that other “democratic” rights, like racial equality, were also not recognized by the Founders, and like voting rights, needed to be discovered in a later era. Their later discovery does not imply in any way that the Founders were right in their first assessment. Just as they were class-conscious, they also were race-conscious and protective of their own status.

      1. …And limiting voting to those with the greatest stake in the future was just *exactly* the same as owning human beings as chattel, hey, Andy B.?

        I simply don’t know what I’d do without the guidance of your insights.

        1. ” limiting voting to those with the greatest stake in the future was just *exactly* the same as owning human beings as chattel. . .”

          I absolutely did not say that. But since you have pointed it out, the denial of voting rights was used to keep many people in something approximating chattel slavery for over a century after slavery was formally declared unconstitutional by constitutional amendment, and, that was accomplished by people who saw limiting the voting rights of others as protecting their own “stake in the future.” So, while not “exact,” the analogy is not quite as stretched as you seem to imply.

          Incidentally, I’m curious how one person’s “stake in the future” is by definition greater than someone else’s? What exactly is that stake denominated in? Does my present net worth (for example) give me a greater stake in the future than I had when I was, say, entering college with a couple bucks to my name? Did a major landholder in 1787 have a greater “stake in the future” than, say, the indentured servant who was penniless but destined someday to be a major landholder or successful merchant? How does that “stake in one’s future” thing work?

      2. Fear of unlimited democracy was widespread across many parts of the populace. There’s a famous saying by a Loyalist in Boston that he was less afraid of one tyrant 3000 miles away than 3000 tyrants one mile away. (And that was before Harvard became what is today.)

        While there was strong hostility towards slavery in the North in 1787, there was strong hostility towards continued importation of slaves in the South, too. By the time Congress used its power to abolish slavery imports in 1808, there was only one state that was doing so: South Carolina. All the rest had prohibited importation of slaves. Some did so because of fear of slave revolt (why bring in more slaves to be afraid of?) and because at least for the first few years after the Revolution, even many slave owners regarded slavery as an obsolete system, one that was obviously not going to be around for much longer. (The cotton gin suddenly changed that.)

        When I explained the idea of voting rights as a somewhat limited concept to my U.S. History class some years ago, one student volunteered the phrase “Skin in the game” to describe why voting was widespread among men, although hardly universal, even in the North. There was a belief that only those who were likely to pay taxes, even at a low level, had any genuine reason to be involved in the decision making process.

      3. Let me point out that Anti-Federalist sentiment was quite strong in states where there were no slaves (New Hampshire, Massachusetts), or slavery was a declining institution (Pennsylvania). Opposition was strong in many slave states, such as Virginia and North Carolina, but slavery is seldom discussed or even mentioned as a reason for opposition to the new national government. Some slave states actually ratified very quickly, such as Delaware. One of my relative actually voted against ratification in the Massachusetts convention.

  4. “There’s a famous saying by a Loyalist in Boston that he was less afraid of one tyrant 3000 miles away than 3000 tyrants one mile away.”

    Dang, and here all along I thought it was Mel Gibson who said that first, in “The Patriot.” :-)

    1. Agreed. Actually I love anything that causes me to go look up further details of something I did not know.

      I seriously always thought that “3000 tyrants” quote was just a very clever (and very apt) line written for the movie — because I never heard otherwise.

      I want to take a moment to agree with something Clayton said above; there was strong Anti-Federalist sentiment in Pennsylvania. But it was not sentiment that had financial backing, as Federalist sentiment did. In fact the Ratifying Convention was rigged such that not many rural delegates could afford the time or the expense of attending. When those that did attend walked out in protest over the conduct of the convention, they were pursued and held bound and gagged at the convention so that their presence would constitute a quorum.

      To return to my original point, I suspect if it were possible to weight sentiments with the wealth and GPS coordinates of those holding those sentiments, it would show the center of gravity of Anti-Federalist sentiment lying somewhere in the south. But I will happily admit that never having pursued that line of investigation, I could very well be wrong. I’ll have to put it on my to-do list. :-)

  5. “But the only instance we have of the courts going along with the licensing of a right”

    Right to drive? What enables all licenses to be recognized? What if PA decided to pass a law not recognizing drivers from say, California or Florida.

    Just curious, if it is just by state acceptance. It’d would be interesting to have a state throw a monkey wrench into it. Fine anyone without a PA driver’s license. If you would like to drive through PA you can purchase a non-resident PA driver’s license.

    I think I will post this on Facebook as a fact. And only after everyone raises a fuss will I point out that I am in fact speaking about gun licenses. Not driver’s licenses.

    But what makes state driver’s licenses universally recognized?

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