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Should Have Cut a Deal When You Had a Chance

Prof. Adam Winkler is taking to the op-ed pages speaking out against H.R. 38, mostly because it lets people from California get an out of state license and carry in their home state. I’d note that previous versions did not have this feature, and were limited to non-residents and only to people with licenses. If gun control folks had cut a deal with us years ago, that’s the law they would have gotten. But they made us wait hoping things would get better for them. They bet wrong, so I have no sympathy. I have no sympathy for the argument that the law is unconstitutional:

The law is likely also unconstitutional. Congress has only limited powers, and the Supreme Court has expressly held Congress has little authority to regulate carrying guns on public streets.

The carry act has language seeking to work around this problem. It is limited to possessing or carrying a handgun that has traveled in interstate commerce. But this is a clear pretext, as nearly all guns travel in interstate commerce. Whether that pretextual hook will be enough for the courts we will have to see.

It’s enough to ban felons possessing firearms and to ban machine guns, isn’t it? Or does the “herpes theory” of the commerce clause only apply when we’re talking gun control, rather than civil rights protection. I’d give Prof. Winkler that there are potential Bourne issues with the 14th Amendment, but I don’t also see why Congress can’t enact this based either on Full Faith and Credit or its Militia powers. The contours of both have never really been all that extensively litigated. Even Bourne may not really be an issue, since it’s arguable that H.R. 38 compliments the right to carry, which was already assumed to exist in Heller. Additionally, H.R. 38 implements the kind of framework which is actually a more apt exercise of Congressional power than Judicial power. So are the Bourne issues really there? Bourne was meant to reinstate the Sherbert test, which SCOTUS decided to abandon. The RFRA specifically was targeted to overturn a Supreme Court decision. H.R. 38 does not do that. The Supreme Court recognized a right to carry in Heller, and applied it to the states under the 14th Amendment in McDonald. If one believes that the federal government has a role to play in civil rights protection, something that liberals used to strongly support, why should H.R. 38 be unconstitutional, rather than an appropriate exercise of Congress’ Section 5 powers of the 14th Amendment?

31 Responses to “Should Have Cut a Deal When You Had a Chance”

  1. Patrick Henry, the 2nd says:

    Too bad, so sad.

    We were willing to compromise sooner. But you didn’t want too. That’s on you.

    • Patrick says:

      They were unwilling to let DC go shall issue back around 2011, and that deal included giving DC a full-up voting member of Congress. It was a done deal right up to the end.

      The deal would have given a vote to DC, and also added one to Utah, plus shall-issue for the city proper. The votes would have neutralized each other (the proposed Utah district was really red).

      The local radio station WTOP said it was agreed, but the DC council flipped at the last minute because of guns. I guess someone called them and told them to stop compromising.

      Anyway, Utah got their new district anyway due to census, and DC got shall-issue anyway due to Gura. Holmes-Norton still cries every day how she is not a real Rep.

      Win-win-win in my book. It just takes a while.

      Who knows what will happen with HR 38. I’m afraid to be an optimist because the GOPe like to screw with us gun people non-stop. I’d hate them all the more if I hoped and they played Lucy and yanked that football from Charlie once more.

  2. 1911 says:

    HR 38 is dead in the senate. It will never get 60 votes.

  3. aerodawg says:

    They’ve beaten us to death with the commerce clause for 100 years now so I have no sympathy. They can eat it…

    • Patrick says:

      Agreed. Even better, this actually fits within the clause.

      I’m no fan of the expanding federal gov’t, but broken clocks and all that.

      • aerodawg says:

        Heard it best put, you can die on the hill of principles or you can do what it takes to win then do what has to be done. All the principles in the world do you no good when you’re out of power.

  4. Joe says:

    If this is unconstitutional, wouldn’t that mean the Gun-Free School Zones Act is as well?

  5. Brad says:

    Winkler is such a weasel. Always playing to whichever audience he is in front of. I’ve always thought his true inclinations were anti-gun, and this editorial of his hyping the supposed dangers of HR-38 just confirms my suspicion of him.

    With all his going into the weeds of the CCW provisions, It’s hugely telling that he never mentions the NICS fix provisions of HR-38.

    eff him.

    • Sebastian says:

      He’s a gun control supporter, and I don’t think he’s ever really hidden his position there. The difference between Adam Winkler and a lot of other gun control folks is that he’s willing to take us and our arguments seriously, rather than just being dismissive. I disagree with him on this, but he’s OK in my book.

  6. AnOregonian says:

    I’m of the train of thought that the commerce clause really is a good fit.

    For it to even apply in the first place, you have to in fact be traveling interstate, and without even going to the “herpes” level of things, it’s virtually impossible to avoid engaging in commerce while doing so.

    • Sebastian says:

      As Glenn Reynolds noted, this is really Heart of Atlanta Motel for guns.

      • AnOregonian says:

        Yup. It’s well within the bounds of every commerce clause case I’ve ever heard of.

        Heck, I’m fairly pleased that it’s an honest fit to the original intent too. There’s actual interstate commerce occurring, and it makes the commerce regular, ie. imprisonment being tariffs taken to an extreme.

  7. BobInWA says:

    Subsitute “CCW licenses” with “marriage licenses” at court when CA/NY/etc sues. It should be 9-0 for us at SCOTUS if the liberal supreme court justices weren’t hypocrites, treating 2A with a double standard.

  8. SPQR says:

    What an amazingly dishonest piece Winkler writes. He pretends that Los Angeles’ corrupt permit system is an example of all California but it isn’t. Rural California counties often have more permissive sheriff’s issuing permits. And LA will issue permits to those without stalkers who are connected.

  9. Ian Argent says:

    Thought I had just now. What’s with the timing? This had been languishing in committee since the opening of Congress, was getting a lot of lip service, and then, bam, voted out of committee, onto the floor, and onto the Senate as though it was on greased rails.

    The cynical answer is this is covering fire for the tax bill, but I’m not sure I can really make myself believe that. And it’s a little early for a grand futile gesture to burnish House Members’s 2A bona Fides, especially with all the FixNICS nonsense attached.

    The Senate math looks pretty grim, but maybe someone knows something I don’t. I looked up the 2013 vote – we had 13 (!) D Ayes (and 44 R Ayes, for a total for 57 and failure to move to cloture). I’m going to have to do more work than I have time or willingness to do to see which of the Ayes are still likely to vote Aye, and which Nays have flipped, but a quick survey of the D Ayes suggests those seats may still be Ayes (Some holders have left the Senate since then). Maybe tomorrow.

    • Richard says:

      Bennet was reputed to be a fake Aye. Supposedly Schumer gave him permission based on vote count. One R No is gone but replaced by a sure D No (IL). Red State Ds up for reelection are a key element here.

      • Ian Argent says:

        Bill Nelson is a hard NO
        Claire McCaskill is a hard NO
        Sherrod Brown is a hard NO
        Bob Casey is a firm No
        Tammy Baldwin is a hard NO

        That takes care of all the No votes in R states up in 2018. If you think we can primary Bob Casey and his replacement doesn’t get Bloomberged, that gets us to 59. I don’t see the 60th vote.

    • Ian Argent says:

      I did some Senate Math, based on the 2013 vote and reasonable guesses about the voting habits of the replacements since then.

      Assuming everyone still in the Senate today votes as they did in 2013, and the replacements vote as their stances on the subject per a quick google search come back as, we end up at 58.

      I don’t see anyplace for the previous or presumptive Nays to be pressured into changing their votes by NRA or the voters. And I see a couple of previous Ayes that I wouldn’t count on (like, ahem, Pat Toomey)

      • Ian Argent says:

        I take that back – I forgot to score Luther Strange as an Aye. 59 votes for cloture.

        But – I still don’t see 60.

  10. Stacy0311 says:

    The gun control crowd is always screaming about how guns should be regulated like driving. Now that there’s a chance it will be, they don’t like it. Of course if cars and driving were regulated like guns, they REALLY wouldn’t like that…

  11. Chas says:

    RKBA is a national right that should be supported by national law.
    The antis know that if we get reciprocity, there will be no going back because CCW works, and any controversy disappears once it’s been in place for a while, and that’s why it has expanded so successfully across the states.
    They know that if they lose on reciprocity, they will never get the genie back in the bottle in their lifetimes, and that restrictive states’ politicians will be hard pressed to justify denying their own people licenses while armed out-of-state folks come and go while laughing at the stupidity of defenselessness that has been imposed there by the Democrat Party.

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