Common Arguments Against National Reciprocity

Glock 43

I’ve been watching the debate unfold, and wanted to address some common arguments I see from people on our side. I’ll address them one-by-one:

The constitution is the only carry permit I need! It should be, but that is not the current reality we live with. We’re now double digits on the number of states that don’t require a permit, and hopefully that will continue to spread. I actually think H.B. 38 deserves kudos for recognizing the Vermont situation, and codifying nationwide Constitutional Carry for citizens whose states don’t require permits. I don’t know if that will survive the final vote, but it’s worth reaching for.

Most Americans are living under some kind of permitting regime, with about 1/3rd of our fellow citizens still living in may-issue states. None of these states will go shall-issue, let alone Constitutional Carry on their own. The only way you’ll ever carry in New York City, for instance, is if the federal courts or Congress force them to allow it, and they might not get into the finer points of reciprocity. There aren’t enough votes in Congress for just preempting permitting altogether, and if you think we have City of Bourne v. Flores problems with National Reciprocity now, wait until Congress tries to do something more appropriate for the Courts to do, like striking down state permitting laws.

This will be the federal camel’s nose under the tent! The federal nose got under the tent in 1934. In 1938, we let it under a little more. Then in 1968 we got half the camel under the tent. Then in 1994, three quarters camel. My point is, the Congress knows how to pass gun control laws. They’ve been doing it a long time. I’m not of the opinion that we shouldn’t move the ball forward because a future hostile Congress might pass gun control. That can happen regardless of whether we pass National Reciprocity. The question is this: do you want a future hostile Congress to have to start from farther away from your rights or closer? Would you like Bloomberg focused on repealing gains we can make now, or focused on gains we made last decade, like getting rid of gun bans and passing FOPA? I know I’d prefer fighting him back to today rather than fighting him back to what I already won last decade. That’s the choice.

Let me address the Brady Act analogy here, because I think it’s worthwhile. We made a number of concessions in the Brady Act that weakened our arguing position. We ended up arguing that instant background checks were great in order to stave off waiting periods. Well, if instant background checks are great for retail sales, why aren’t they great for every sale? You see where the other side can go with this. Well, since every sale gets phoned in to the FBI or State Police along with the buyer information, why can’t we just keep that? Just a little record keeping, you know. Nothing to worry about!

The compromises that went into the Brady Act inherently weakened our position for future fights. Where does National Reciprocity weaken our arguing position? That there should be no federal gun laws? I’m sympathetic, but if the Second Amendment is a recognized fundamental right, I want the federal government to be empowered to protect it against state encroachment, just like it does with other fundamental rights. Are we to believe that a hostile Congress has never thought of using its power to screw us until we came along and decided to use it to help? Congress liberally used its power to our detriment for most of the last century! Believe me, whatever your fears about what a Congress will do to state permit systems the anti-gun legislators have already thought about, and they’ll do that to us if they have the votes even if we never pass National Reciprocity.

Let me take one common fear: a future hostile Congress will mandate state standards for issuance, like they’ve done with Real ID. OK. I’ll buy that. Say a future hostile Congress decides that only states that require 8 hours or more of training and a live fire test qualify for national recognition. I would certainly oppose that. But are we still ahead of where we are now? Yes. Did the future  hostile Congress just blow political capitol pissing off 10 million people who have permits in this country just getting halfway back to where they were? Yes. Would you rather them chip away at gains we made a decade ago instead? Right now their goal is extending the Brady Ac, repealing FOPA, and as a stretch goal banning “assault weapons.” If we pass National Reciprocity, that’s going to become their target. That’s a good thing.

It’s a useless bill. My guns are illegal in the hostile states!  H.B. 38, and most of the other proposed National Reciprocity laws that have been proposed have attempted to preempt local gun bans. If you look at the language of H.B. 38, it allows anyone to carry a handgun (other than a machinegun or destructive device). It makes clear that magazines and ammunition are included. Now, I actually think H.B. 38 needs to be made more clear that Congress is intending to preempt state law in this matter. It should make clear that any handgun legal under federal law is covered, regardless of state laws on magazine capacity or ammunition type. But there is an attempt to ensure you can carry everywhere with the guns you own.

New Jersey will just change its laws to eliminate the permits. So will other states! That might be so. But I’d still argue we’re way ahead. Will states that issue but have bad reciprocity arrangements, like Minnesota, Nevada and Oregon, repeal their laws? Probably not. Will New York City, which hands out carry permits as patronage, repeal theirs? Maybe. But maybe not. Don’t underestimate how powerful patronage is. We don’t know what will happen. Also, what happens if a future Supreme Court rules that outright prohibitions on carry are unconstitutional? This puts a lot of the hostile states in an outright bind. It’s worth doing. Also, don’t underestimate our ability to make improvements to the law after they pass it and the sky doesn’t fall. Perhaps repealing concealed carry won’t get New Jersey out of recognition forever.

26 thoughts on “Common Arguments Against National Reciprocity”

  1. You make a lot of good points, and I agree with most.

    My biggest concern is another Hughes amendment. 55th minute of the 11th hour and someone poisons the bill and it gets passed – then how screwed are we?

    I don’t trust the bunch in Washington to not screw this up.

    That said, I don’t think nothing should happen either.

    1. That’s always an issue when you’re running pro-gun legislation. The difference today is that we have the votes to stop that kind of thing, whereas we didn’t in 1986. We had to get FOPA through a Dem controlled Congress, though back when there were a number of pro-gun Dems, who are actually the lawmakers who drove the bill.

      NRA could have tried to kill the bill once Hughes was tacked on it, and I have little doubt today they’d probably do that since chances are we’d get another chance at bat… but back then killing FOPA over Hughes would have put FOPA in the grave. Most of the people I know who were involved in the FOPA fight agreed that FOPA had to pass anyway, because to save machine guns would have sacrificed everything else.

    2. We were screwed before because the speaker decided to let the amendment through on a voice vote, which is not a vote at all. The speaker just decides if he wants to side with the people saying yea or nay without a tally. This time we have a pro-gun speaker who would not do that to us.

      1. Voice votes are a legitimate part of House procedure, and under House rules members can object to a voice vote and call for a recorded vote, but none did.

        There’s a lot of lore floating around out there that Hughes wasn’t legitimately passed, but it’s not only not true, even if it was true, it wouldn’t matter because it’s not actionable in Court.

  2. Rules of construction take hold here. “Handgun” is defined under 18 USC 901:

    (29) The term “handgun” means—
    (A) a firearm which has a short stock and is designed to be held and fired by the use of a single hand; and
    (B) any combination of parts from which a firearm described in subparagraph (A) can be assembled.

    The ambiguity was in magazines and ammunition – are they “parts from which a firearm … can be assembled”? This depends on the court. So by explicitly including mags and ammo, the drafters got rid of the ambiguity and tightened things up nicely.

    Limiting lawful possession to, “lawful in the state the possessor resides” has the contra-effect of increasing regulatory pressure on states, creating confusion as to what is or is not allowed (forcing cops to know all regulations everywhere), and most importantly giving law-enforcement an easy excuse for confiscating firearms without penalty.

    As it stands the police need exactly one standard to use: federal law. Expand that to the 100+ regulations out there nationwide and they can reasonably take a firearm and claim they were following the exact law that should protect us: “I didn’t know the gun was legal in the place the person was from, so we held it until our counsel could confirm with their home state that the firearm met the standard of the federal law.”

    More words are not better here. One standard is best. Every time I read this text, it becomes clear someone who really knew their stuff put it together very carefully.

    That said, there will be test cases and nobody will want to be one. The most impressive part of this act to me is the specific allowance to sue officials as individuals. That’s going to be a big deal, when combined with clear instructions that taking a gun from someone who lawfully possesses one is a violation in need (shall pay fees) of correction.

    Now we just need to get it passed.

    Note: I shamelessly copied this from an earlier post – Sebastian was posting this one as I was replying to the other.

  3. “Where does National Reciprocity weaken our arguing position?”

    We are saying it is desirable that the federal government enforce what we believe is a net good.

    We have to expect that when someone promulgates the notion that the net good, perhaps isn’t so good, but could be made much better by imposition of some “standards” — like universal mandatory training (to what standards, by whom, and what does it cost?) — that net good will also be enforced by the federal government. It could be enforced easily by withholding federal law enforcement funds, and/or simply denying reciprocity to non-compliant states. (I once again invoke the analogy, that shortly our Pennsylvania Photo ID drivers licenses will no longer be acceptable for boarding airliners or entering federal facilities, because they don’t adhere sufficiently to federal standards.)

    Many people are making the argument that by making the “gun culture” more universal, National Reciprocity would work in our favor. I would counter, what if National Qualification Requirements resulted in fewer people bothering with seeking permits? (Not everyone feels a strong compulsion to go carry a gun in East Japip.)

    Last, and this is very personal, but — my casual observation (though over many years) has been that carry permits create a culture of regulation-lovers, who regard their carry permits as Badges of Real-Gunnyship, who really don’t like their status as Officially Endorsed Firearms Carriers to be too easily shared. Here in PA I knew of “gun rights” leaders who publicly gave lip-service to Constitutional Carry, while privately confiding that they didn’t support it, because too many of Those People might start carrying guns — and worst of all, it would be legal!

    1. I think that’s a concern. But my argument is that Congress could do all of those things regardless of whether we pass a bill now. The bill doesn’t enable those things to happen, or concede mandatory training is great. If we were to pass a bill that included a training requirement, I would agree that’s dangerous, because we’d be conceding that training is fine and good.

      1. “my argument is that Congress could do all of those things regardless of whether we pass a bill now.”

        I’ll stop here because if I continued I’d just be, being argumentative, but Congress is more likely to do some things if an excuse for doing them is provided. We already have states that will not establish carry reciprocity with states that have looser permit issuance standards, and those states will scream bloody murder if the feds forced them to accept it.

        At present I am reasonably satisfied with Pennsylvania’s “shall issue” requirements. Only making permits free and lifetime without requiring renewal — or Constitutional Carry — would make me happier. I would not be happy if new requirements were added, at the demand of some states I likely will never visit.

        But I will accept it’s a judgment call, and admit that where I’m coming from is mainly that National Reciprocity is something I just have a visceral bad feeling about.

      2. Training is good. It’s the mandate that is bad. Too easy to abuse by anti-self defense people. Plus training requirements would be considered an infringement of any other of the bill of rights. No religious freedom for you without formal instruction. No freedom of speech unless you pass the grammar nazi test.

    2. my casual observation (though over many years) has been that carry permits create a culture of regulation-lovers, who regard their carry permits as Badges of Real-Gunnyship, who really don’t like their status as Officially Endorsed Firearms Carriers to be too easily shared

      Except that’s clear disproven as in the past 15 years we’ve added nearly 10 states via legislation that don’t require permits! I’m sure there are some like that, but the majority buys into the idea that “the constitution is my permit”.

  4. This is an area where the anti gun crowd is much smarter than we are. What they want is to outlaw guns. If they can’t have that, they pass whatever restrictions that they can, and use THAT as the starting point for the next time. Boiling the frog, as it were.
    Pro-gunners aren’t that smart. If we can’t pass one law that gives us everything that we want, then we refuse to pass anything, thus ceding the field to the anti-gunners.

    We need to take a page from their playbook, pass what we can now, and use that as a starting point for next time.

    1. Everyone knows a series of Hail Mary passes every 1st and 10 is the best way to win the game. Why work your way down the field when you can just chuck it and pray?

  5. Slightly off topic, but Minnesota is trying to pass a universal reciprocity bill that will have us honor any permit. We are also pushing to pass constitutional carry this year along with other pro-gun bills.

    1. Someone we all know and love is going to have a serious case of the vapors if even half of that passes. Good luck! I shall enjoy watching it.

      1. Minnesota, at the State level, is trending GOP very quickly and forcefully. Governor Dayton threatened to veto an omnibus gun bill that legalized SBR’s and suppressors, BUT…..he signed the Bill because to many Rural DFL members voted for it, and even though the DFL (Democrats) had control of the Minnesota Senate in 2015, there were enough votes in the GOP State House of Representatives and DFL State Senate to override a veto. Constitutional Carry is coming (most likely, looking at it now) to Minnesota within the next 4 years. Too many DFL members, even though the DFL are in the minority now, are from rural and smalltown parts of Minnesota, and even those Democrats will support it. A Constitutional Carry bill will likely pass the GOP Legislature, and, get to Governor Dayton’s desk, and the numbers could be veto proof against him if he rejects/vetoes the bill

        Remember also, that Constitutional Carry passed in Maine with a Democrat State House of Representatives and GOP State Senate, but, Maine still has Paul LePage (R) as governor as it did in 2015 to sign it. It was never in danger of being in a situation where a veto override would be needed to enact it.

        1. “Minnesota, at the State level, is trending GOP very quickly”

          Once the GOP has no serious competition, what incentive will they have to care what gun owners think about anything?

          You don’t really believe they’re guided by ideology, do you?

  6. Every state but one that now has Constitutional Carry passed through a period of shall issue permitting. Most states that now have shall issue started as may issue. Incremental changes work.

  7. Divemedic is right: pass what we can, when we can, then come back for more. Nearly all of our shall-issue CCW laws were badly flawed upon inception, but most have been liberalized over the years once folks found that the bad things didn’t happen.

    Let’s get what we can now, then go for more later.

  8. Excellent arguments in the original post. Some of the best I’ve seen articulated on this subject. I’ll make two comments.
    1) The reaction of staunch gun control supporters is always a good litmus test in these situations. They are vehemently opposed to any sort of national reciprocity.
    2) I’ve long been bewildered by 2A supporters who wring their hands, oppose, and even attempt to scuttle good pro-gun bills (like reciprocity in this case) that are not perfect. Like many ideologues, these people lack some grasp of reality.

  9. It should be easier for a law-abiding citizen to carry a gun than for a criminal. So, since criminals don’t do any paperwork, or pay any fees to get a carry license for their guns, how do we do that?
    $1,000 federal tax deduction to those who carry. Any criminal who applies for it would be cross-checked against a prohibited list, and guess what? We come looking for you.
    Those who go out of their way to help maintain our civilization should be rewarded for that, and that is enough to make our enemies cringe and writhe in despair, as they should.

  10. “The question is this: do you want a future hostile Congress to have to start from farther away from your rights or closer?”
    “If you look at the language of H.B. 38, it allows anyone to carry a handgun (other than a machinegun or destructive device). It makes clear that magazines and ammunition are included.”

    You make my case, of against, for me. This is indeed closer. By your own admission, the Congress will be telling my state what guns I can carry. Oh, right now, in this version of the bill, so far, it looks good but sir, this is congressional regulation for the carrying of common handgun weapons in self-defense. A power congress doesn’t currently claim. You are advocating for congressional gun control over my wearing of arms for the purpose of self-defense.

    You even use the word ‘allows’ to describe what the law does. Right now I only have to fight my state for what I am ‘allowed’. You want me to have to fight my state and the federal government. It is so much easier to get our states legislature’s attention than the congress.

    It’s awfully nice of you to ask the Congress to allow me to defend myself. Thank you missuh, massa. You are truly a benevolent owner of men’s rights.

    1. No, it’s not telling your state what guns you can carry. You carry in your own state under the laws of your own state. This only applies when you’re carrying in a state that does not have explicit reciprocity with your state of residence.

      Congress has long had the power to protect civil rights from state infringement. That’s what this is about.

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