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Right to Carry Reciprocity Introduced

The bill is H.R. 2959, and NRA has a press release out about the bill. Elections are coming up soon, and whether or not we can get this through the Senate (probably not) or through the President (definitely not) it gets lawmakers on record for an important vote. This particular bill doesn’t enumerate specific powers that Congress has to pass such a bill, but that is not strictly required. Certainly Congress has the power under Section 5 of the 14th Amendment to pass such a bill. As I’ve mentioned in the past, there is a potential issue with the case of City of Boerne v. Flores case, in terms of the Court having been willing, in the past, to smack down Congress for getting out ahead of the Supreme Court in defining a right.

However, in this case, Heller contained lengthy discussion that recognized the right to carry a firearm, though not necessarily in any manner one may want, and not necessarily any place. The bill still leaves room for states to ban the carrying of concealed weapons entirely (though, at this point, no state does so). It is as respectful to the right as described in Heller as Congress could muster, so it is arguably a bill that is not getting out in front of Congress. Additionally, even if the 14th Amendment argument fails, there are at least two others that may also work. Though I’ve written before about why I think resting federal reciprocity on the interstate commerce power could be a dubious proposition, even in light of Gonzalez v. Raich, because there’s no real nexus to interstate commerce with this bill, short of arguments the court has rejected in past cases.

I’d note that I don’t think this should be the end of Congress exercising it’s 14th Amendment powers on behalf the Second Amendment, but only the beginning. Just because the Supreme Court has had a turf battle with Congress in one context doesn’t necessarily mean they will choose to in another. At the least, Congress needs to preempt DC City Council from regulating firearms above what federal law does, which it has the clear, plenary power to do. But I’d also like to see such preemption applied to all states, and finally be rid of the two Americas problem.

13 Responses to “Right to Carry Reciprocity Introduced”

  1. Patrick says:

    So last time the bill came up, the commerce clause was the vehicle of choice. I am not going to chase it right now, but all legislation proposed will get a note in the register. Just chase it down and you’ll see the claimed constitutional provision at play.

    To the larger issue, the bill won’t even see the floor of the Senate or be heard in a committee there. It will pass the House.

    More votes on record.

    Also, this thing comes up every year. If the GOP takes the Senate, then it should see the floor at least for a cloture vote (60 seats required to go to a floor vote). Some Dems who have crossed over before will be pressed hard by both sides. In the outward chance that the GOP gets 60 Senators (enough for cloture without Dem support) and picks up more seats in the House, you get to the possibility of overriding a veto, but only if you have the “Second Amendment Dems” on board. That would require some of the Dems who have crossed over on this issue in the past to really cross over when it counts.

    The question is whether the congress could override the veto. I doubt it. For that reason alone, the cloture vote – even in a GOP controlled Senate – would be hard if they don’t do it themselves.

    Then again, if 2014 is a GOP wave then maybe some Dems will want to separate themselves from Obama. That’s the optimist/wishful thinker in me. The realist says even in 2015 this won’t go anywhere.

    The fact a civil right has become a party issue is a shame. But history says that after we win, the right will be picked up even by some of the other side. You are starting to see this with gay marriage. The fight there is largely over…so politicians who once opposed it are happy to support the winning team.

    • Sebastian says:

      I believe HR822 laid out several possibilities, the 14th amendment and commerce clause being among them.

      • Patrick says:

        The official enactment process would have been the commerce clause. HR822 talked about equality in its “findings”, but under the federal register it would have been a commerce action. That is common – to talk grandly but be more pragmatic on paper. The issue was that using the 14th to regulate activity that the Supreme Court was going to likely review in the future opened the door to enterprising judges holding the law, “awaiting review.”

        The Commerce Clause is ridiculously powerful in its most egregious forms, so using it was a no-brainer. It was least likely to get shut down. Also, that’s the reason the law could not be used to force shall-issue in may-issue states (by letting reciprocity cause state residents to carry in their own state with out-of-state permits).

        And yes, I actually do know some of the backstory on this one.

        I also know that there are people on the hill who really give a rat’s ass about this issue. They are mostly staffers, and that makes them the most enduring kind of friends we have.

        As for the 14th – I am totally with you on the potential powers under it. Congress absolutely can protect our enumerated rights from the powers of lower governments. I think our future there could be quite nice if we work it hard. Basically, it would be pre-emption on a national level. Municipalities could not enact laws more restrictive than those of the federal, though they could certainly require less (no-permit states, etc.). But at its core, the laws of the federal would be the law of the land.

        That needs to wait for a more specific ruling from the Supreme Court, and a better Congress. So let’s not hold our breath.

    • HSR47 says:

      I think the real right-wing answer to the question of redefining marriage is deregulation…

  2. Ian Argent says:

    If it gets to the floor of the Senate, there’s at least 60 current senators who have either voted yes on a similar bill or are expected to based on their NRA endorsements. IIRC that includes a number who changed their votes to Aye after Reid determined that the previous bill would not get to 60, though.

    • Patrick says:

      Yup. The scoring of the past is somewhat not indicative of the future.

      If the GOP takes a huge win this coming session, then Dems who are vulnerable in 2016 would probably go along. At the same time, you could see Dems “holding the line” to prop up progressive supplicants in order to make this a presidential issue.

      No way to say from here. I don’t think the Senate is as cut and dry as many say it is. We still got a lot of time between now and November for GOP candidates to say really, really dumb things about sex, drugs or any other line the media declares inviolate.

      I am not the first to say it, but never underestimate the ability of the GOP to snatch defeat from the jaws of victory. It’s damn near their game plan.

  3. Matthew Carberry says:

    From 2012, died in committee.

    http://www.nraila.org/legislation/federal-legislation/2012/national-right-to-carry-reciprocity-act-of-2012-introduced-in-us-senate.aspx

    So, per gov.track, 4 (co-)sponsors:

    Begich, Mark [D-AK]
    Baucus, Max [D-MT]
    Manchin, Joe [D-WV]
    Tester, Jon [D-MT]

    -If- appointed Sen. Davis sticks with Baucus’s position or loses to a pro-gun Rep., and Begich retains his seat or loses to a pro-gun Rep., and they, and Manchin and Tester, don’t turn their coats, there are four “bi-partisan” swing votes there either way. With a pro-gun GOP majority this thing could actually get out of committee, once on the floor the votes are likely there.

    Here’s the link to that year’s companion House bill details for those who don’t remember.

    http://www.nraila.org/news-issues/fact-sheets/2011/the-national-right-to-carry-reciprocity.aspx?s=&st=&ps=

    • Matthew Carberry says:

      The Republican counterpart bill in 2012, S. 2213, had 35 (co-)sponsors. (34 after Luger backed out).

      Together with the 4 Dems that’s almost 2/3’s of the way to a veto-override on clean bill sponsors alone.

      My other Sen., Murkowski, didn’t co-sponsor but has no reason to vote against, given Alaska already has unilateral reciprocity. This bill can only help her constituents and can’t hurt any of them.

    • Ian Argent says:

      I was thinking of the 2008 (?) bill that went to the Senate floor.

      • Matthew Carberry says:

        I remember that one too. I was looking for more recent info and remembered Begich and Manchin had introduced their own bill rather than sign onto the other, bi-partisan, one.

        Wasn’t there a close vote on a “reciprocity amendment” to the failed post-Sandy Hook bill last year as well?

        http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=113&session=1&vote=00100

        Here it is, 57 “yea” votes in 2013. Including the 4 Dems mentioned above. Even given Reid’s politicking, we aren’t that far out from 60 as-is.

        • Patrick says:

          They voted a reciprocity amendment to the Dem gun control bill (AWB, limits, etc.) that actually garnered more Senate votes than the bill itself. It was a bit of an embarrassment to the President and signaled that gun control was not advancing in the Congress. Not even the Senate.

  4. Chris says:

    Certainly the Courts have been helpful is rolling back a few of the most asinine restrictions in my hometown of San Francisco; however, one cannot overstate the importance of federal legislative action in restoring the firearms culture in places where being pro-gun is thoughtcrime.

    As much as this is a civil rights issue that should ideally be addressed under section 5, I lean towards interstate commerce as the likely Congressional power. The right to bear outside the home has an impact on interstate commerce that is closer to Heart of Atlanta Motel v. US, 379 US 241 (1964), than the micromanagement of feline residential accommodations on an island, 907 Whitehead v. USDA, 701 F.3d 1345 (11th Cir., 2012) [cat museum gift shop is sufficient nexus for interstate commerce regulation].

    We have judges here that admittedly know absolutely nothing about firearms, but proclaim that requiring trigger locks on loaded firearms is a reasonable public safety measure (9th Cir. oral arguments in Jackson v. SF), county supervisors that propose bans on “military hollowpoint” ammunition, and an entire state legislature that does not realize that a magazine is just a metal box with a spring. Exposure to a healthy and safe firearms culture is the only cure for this nonsense.

  5. Barry Hirsh says:

    The Congress has the delegated power to mandate full faith and credit by general laws, pursuant to Article IV Section 1.

    Clearly, this is black-letter constitutional authority to pass a reciprocity law.

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