Movement on National Reciprocity

House Judiciary Committee approves HR38 by a 19-11 vote. Lately we’ve had some argument within the community about the powers National Reciprocity, and the power that is based on.

H.R.38 should be amended to (1) unhinge it from the constitutionally- antagonistic Commerce Clause doctrine, and (2) expressly provide statutory protection of the fundamental, individual rights under the Second Amendment made applicable to the States and local governments by the Fourteenth Amendment.

I’d note that H.R. 38 does not go into any detail about which federal power it’s based on, and frankly, it doesn’t have to. There’s not requirement that Congress enumerate what powers it’s using and it doesn’t always do this. Any and all arguments about this being within Congress’ enumerated powers can and will be made when this law is inevitably challenged in Court. There is more than one power that plausibly supports H.R. 38 and the Fourteenth Amendment is one of them.

But whether the constitutionalist in us all likes it or not, the most solid framework National Reciprocity rests on is the commerce clause. This shouldn’t be, but based on existing court precedent, it is. There are serious Bourne issues arguing the 14th Amendment. So here’s the question: do you want to win, or do you want to participate in a constitutional debating society? Note that the test cases for this are likely to involved good people risking many years in prison. I’m absolutely comfortable arguing anything that will prevent this from happening. My conscience will be clear, because if the Courts actually did their jobs, the Constitution would mean you can carry anywhere already. If I have to fight within the framework they created to achieve that, so be it.

Understand that the entire felon-in-possession statute, all of 18 USC 922(g), 922(o), rely on “that has been shipped or transported in interstate or foreign commerce.” The federal courts are going to be very reluctant to start rocking that apple cart. But yeah, we could be pure and only make the 14th Amendment argument. And the courts, which are going to be looking six ways from Sunday to invalidate National Reciprocity, especially in the hostile jurisdictions it’s likely to face challenge in, will just cite Bourne and be done with it. Off to jail with the unlucky bastard who ends up being the test case. Good luck with life on the inside while you await your appeal.

No, we make the commerce argument, along with anything else that could possibly uphold this. It might not please the constitutional debate society, but I’m tired of that shit. I want to win. I want our rights protected, and I don’t care if I have to work in whatever shitty framework the courts have laid out for me.

36 thoughts on “Movement on National Reciprocity”

  1. They’ve beaten us to death with the commerce clause for nearly 100 years. It’s time to beat them with whatever club is convenient….

  2. As I’ve said before … to me this law is more critical than any other — possibly even the Heller decision in the long run. Almost a win at any cost.

    Antis have killed the gun culture in bright blue states, which continue to get the most immigrants AND spread that growth to other states. And that means anti-gun votes grow in red states over time.

    Since the courts won’t support Heller, the only way we’ll get the gun culture back in blue states is to make it worthwhile for blue state people.

    My own story is that I’ve always been a guy who liked guns, but in the 90’s I gave up on it and was a Clinton supporter. Back then, as soon as I walked unarmed out of my house the 2nd amendment was meaningless to me, but not to criminals, who had guns anyway. So basically the 2nd amendment just armed criminals.

    What changed me was legal CCW. Now the 2nd amendment was meaningful and actually protected me and my family everywhere we went.

    So pass the right bill and enable blue state people to carry (i.e. if they can get a utah permit and carry in their home state) and we’ll have shifted things in the right direction.

  3. I agree about arguing using whatever clauses in the Constitution support our claim. If that means the commerce clause, then so be it.

    That said, I’ve always believed that the strongest plain-text-reading support for National Reciprocity in the entire U.S. Constitution is the Full Faith and Credit clause (Article IV, Section 1):

    Full Faith and Credit shall be given in each State to the public Acts, Records and judicial Proceedings of every other State. And Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof.

    Full Faith and Credit is how marriage licenses, child support payment judgments, driver licenses, and arrest warrants (among other things) are enforceable and valid in all 50 states, regardless of which state issues them.

    I’ve never understood why CHLs (or whatever acronym your state uses) aren’t honored the same way, but the Constitution clearly says they should be, and empowers Congress to force the issue.

    IANAL, but if I were, any brief I wrote in support would cite any and every clause in the Constitution that even tangentially upholds my point of view. I count three glaring ones to support National Reciprocity. In order of strongest to weakest (case/precedent law notwithstanding): The Full Faith and Credit clause, the Fourteenth Amendment, and the commerce clause.

    Just my $0.02.

    1. You forgot Article 1 section 8 clause 16 “Congress shall have the power…To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;”

      1. I didn’t forget it; I just believe that clause weaker and/or more easily disputed (you’ve heard the “National Guard is the militia” arguments; not Constitutionally valid, but they still get heard). It requires Congress to act expressly in support of gun rights, specifically in the context of militia service, which is only part of RKBA.

        The Full Faith and Credit clause, on the other hand, requires states to honor all “Acts, Records, and Proceedings” of all the other states, whether Congress chooses to say anything or not.

        One requires express direction and intent, the other is automatic (as is the Fourteenth Amendment). I believe the “automatic” ones provide greater safeguards to liberty than ones that need Congress to act.

        Still, as I said, I’d be arguing ALL of it to support my point of view; no matter how weak I think any individual clause is, if it supports my argument, it gets included.

        1. Except that the full faith and credit clause only requires that states acknowledge that the CCW permit is a valid CCW permit. Not that it has any effect in another state. For example, professional licensing is not portable state to state.

          The militia clause has much more fundamental support in the constitution. I would argue that the Congress could use it to override all state laws on firearms possession and require that everyone must own an M16. (I don’t think that they should, you have as much right not to own guns as you do to own them.)

          In any case, they can simply declare that part of the discipline (ie the rules of conduct) for the militia (which is still defined as all military-age males regardless of membership in the National Guard) includes carrying a handgun if they so choose.

          Who knows how all this will play out remember, these are the courts who will happily rule that a cat is a dog and Obamacare is a tax if it suits their political interests.

          1. Except that the full faith and credit clause only requires that states acknowledge that the CCW permit is a valid CCW permit. Not that it has any effect in another state.

            That’s like saying that a state is only required to acknowledge that a marriage certificate is valid, but is not required to honor all the other legal effects of marriage, such as shared ownership of property, health insurance, survivors’ benefits, inheritance, etc. IOW, “Sure, your marriage is valid in your state, but in this state you will be treated as if you’re not married.”

            (SCOTUS agreed in Obergefell, which was how one state’s same-sex marriage statute became the nation’s same-sex marriage model.)

            That does not do justice to Full Faith and Credit, any more than saying you can own guns — but cannot carry them — does justice to “keep and bear Arms”.

            I agree that Congress could use the Militia Clause to ensure 2A rights for everyone if they chose. However, I still believe that the clauses that don’t require Congress to act one way or the other provide more protection for individual rights. The Militia Clause just says Congress has the power; they can (and typically do) choose not to use it.

            IOW, under the Militia Clause, all Congress has to do to effect the continued erosion of 2A rights is … nothing. (And they are very good at doing that!)

            On the other hand, the First Amendment (for example) specifically says “Congress shall make no law….” It’s in force and active whether Congress acts or not, and EVEN IF Congress acts directly against it.

            1. I’ve argued using the full faith and credit clause to push CCW (LTCF) reciprocity for a few years now. Some will claim If you read IV carefully that it was intended to honor only the findings and rulings of the court system. While marriage licenses are often signed by judges and prothonotaries, the original intent was skewed when this ‘club’ was used to honor drivers licenses nationally which are merely ‘acts and records’. Further, it could be argued in some states like PA (a commonwealth) that the sheriffs issuing a license to carry are an extension of the court; transporting prisoners and serving warrants is part of their sworn duty.

              I don’t care how it passes, or what people smarter than I use to do it, just get it done!!

  4. I’m just disgusted by the idea that the Commerce Clause is “sticky” in that it can be used to ban stuff after it’s no longer in interstate commerce.

    “Regulating trade among the several states” is the power to regulate the trade itself, not post-facto uses once the object is no longer in interstate trade.

    A Commerce Clause that lets Congress regulate arbitrary things about objects because they were once in or indirectly affect in a way unrelated to the regulation in question “Interstate Trade” is a Commerce Clause that is a grant of arbitrary power.

    (I agree completely that since we’re in this position, might as well abuse it for the good of civil rights, but I still hate that it’s even made relevant.)

    1. Logically the courts have to uphold national concealed carry.

      If the Constitution means what it says then National Concealed Carry cannot be supported by the Commerce Clause. On the other hand, if the Constitution means what it says then all the restrictions on concealed carry are unconstitutional on their face anyway.

      If the Constitution doesn’t mean what it says (which is what is supported by precedent see Wickard v Filburn) then Congress can mandate anything it wants.

      1. The Constitution ultimately means whatever the Supreme Court says it means (remember Roe v. Wade found a new “right”). IF it passes, I’m optimistic but wouldn’t bet the house.

    2. The good news about using interstate commerce is that it builds on decades of progressive decisions and laws. Watching their heads explode will be so much fun!

      1. To borrow shamelessly from Glenn Reynolds:

        There’s an old joke about a boy who complains to his mother that his little sister keeps pulling his hair.

        “Oh,” responds the mother, “she doesn’t know that it hurts.”

        A few minutes later, the mother hears the girl scream and runs into the other room. “She knows now,” the boy explains.

    3. A nice illustration of how the Commerce Clause is abused is in the text of the Feinstein bill to ban bump stocks. It says that it shall be illegal “… to possess… in Interstate Commerce…”. It’s possible to legislate about selling something in Interstate commerce, but “possess in interstate commerce” is a ludicrous concept even for a Democrat.

  5. Absolutely a must win. By any means possible. We won McDonald with substantive due process which is not only is without constitutional authority but a logical absurdity. So if it takes using the commerce clause or anything else that will stick to the wall, so be it.

  6. Just finishing final work on my upcoming Kansas Journal of Law and Public Policy article about national reciprocity, which argued for either commerce clause, or privileges and immunities clause basis.

  7. Pingback: SayUncle » Good
  8. Any ideas on how this gets past a filibuster? Anything must pass coming up? Debt ceiling increase? I really don’t see this being attached to the tax overhaul.

    1. Last time this made it to the Senate, we got to 56 or 58 votes, and some of the Nays then have been replaced with better-rated people.

      Not a guarantee, since some of the Ayes votes yes because they knew it wouldn’t pass, but it’s not a futile gesture

  9. I agree with the post, but I still think that Congress should state that its interpretation of the 2nd Amendment is that the scope includes the right the bear arms, i.e. carry outside the home. (And that it has the power to enforce the 2nd under the 14th).

    Congress should state this explicitly – it in some respects gives the courts some cover to turn a constitutional question about carry into a statutory one. Courts will broadly defer to Congress.
    It will give some cover to those who are wavering on the fence (and also, the courts can blame congress for any ill effects). It also signals to those retiring that the next justices will be more gun friendly.
    Don’t underestimate the power of psychology and deference to sway the courts.

  10. It’s going to be better for the long term survival of the RKBA that pro RKBA legislation take small bites at a time.

    Our opponents didn’t understand that in 1994…

  11. The actual bill does still appear to force reciprocity of non-resident permits:

    valid license or permit which is issued pursuant to the law of a State and which permits the person to carry a concealed firearm

    It also blocks enforcement of magazine and ammo bans:

    The term ‘handgun’ includes any magazine for use in a handgun and any ammunition loaded into the handgun or its magazine.

    That’s kind of sloppy, in that a loose JHP in your car still puts you in jail in NJ, but as long as all of them are in magazines…

    1. I’m still not entirely sure I like that non-resident CCW permits are forced to be reciprocal. The anti’s are right in their argument that this means permitting goes down to the least-restrictive (non-ConCarry) state.

      I mean, I think we should all be under a ConCarry regime, but sneaking in via the back door isn’t the greatest idea in the world

      1. If I understand the way the proposed law will work, what you are saying is that you don’t think residents of NJ should be able to carry, but only the random tourist who inadvertently wanders over the state line.

        Same situation for CA. Except for the very few who live in the ranching or gold mining areas of the state, no one will have a useful permit without non-resident issue. The current batch of Dems in the non-or may-issue states will not change their attitudes on this matter. End run, or back door, is the only practical way to address it in our lifetime.

        1. I think Congress should explicitly Force the States to issue, rather than this back door method. In av perfect world, anyway, which we don’t live in.

          1. I agree, however congress hasn’t even forced their own personal playground, the District of Columbia, to go shall issue. Instead of putting a foot down as the constitution allows specifically for DC, they continue to defer to local leadership. What makes you think they would force shall issue here? Sneaking one in the back door may gain us more ground and free up the subjects of the ‘People’s Republik’ states.

    2. Counterpoint: law and custom require states to reciprocate recognition of marriage licenses from out of state, even if they were obtained by marriage tourists (hence the Vegas wedding).

      1. Back in the late 00’s, IIRC, there were over 5k Utah permits issued to just one of the SF Bay Area counties. I suspect there may be more issued to CA residents than to Utah residents themselves.

        The annoying thing is that CA cops know if you have a non-resident permit, through western state data sharing.

  12. The second shoe has dropped.
    Dem. leaders have added an amendment to resuscitate The Brady Law.
    Never gonna see 50 State Reciprocity.

    1. Which one? The Brady Law that was struck down by SCOTUS?

      Also, got a link? Because I don’t find anything with a search

  13. I predict that some tin-horn tyrant judge in Hawaii will throw out reciprocity and the Robert’s court will do nothing AGAIN. The Judiciary is the enemy.

    Our side needs to make it exceedingly hard for the courts to kill this.

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