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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?

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.

The Constitutional Authority for National Reciprocity

I’ve run into a few threads over the weekend discussing National Reciprocity, and the power Congress is relying on to pass it. There seem to be a number of misconceptions.

First, Congress is not required to state what power its authority to pass a bill falls under, and so often bills do not discuss that. The argument for whether a bill falls outside of Congress’ enumerated powers is an argument for the courtroom. Previous National Reciprocity Bills have had statements speaking to Congress’ power to pass it, but this latest bill, H.B. 38, does not. It is probably best that the bill does not discuss that. National Reciprocity relies on three powers of, with some arguably weaker than others. I will discuss them from the strongest to the weakest (in my opinion, reasonable people can differ):

Commerce Clause: Much of our federal gun control law rests on Congress’ power to regulate interstate commerce. That’s why in much of federal gun control law you see “in or affecting interstate or foreign commerce, ” and why you’ll also find that type of language in H.B. 38. Granted, I strongly believe the Courts have interpreted this power way too broadly, but if we can prosecute felons for possessing firearms because that firearm was once transported in Interstate or Foreign Commerce, it would be interesting to see the Courts’ reasoning on why it can’t apply to firearms carried by civilians. That’s why I believe this is probably the strongest argument for the bill, even if I don’t personally like it. The apple cart that would be upset by the Courts rejecting what is sometimes called the “Herpes Theory” of the Commerce Clause is big and consequential enough I don’t think the federal courts would want to risk it.

14th Amendment: A lot of people have argued that the 2nd Amendment trumps the 10th Amendment. This is true, but only because the 14th Amendment made it so. The 14th Amendment prevents states from interfering with the civil rights of Americans, and also gives Congress the power to enforce that amendment via legislation. This is the power I’d like to be the most solid, but we have a big complication with City of Bourne v. Flores, which argued Congress could not extend the meaning of a right beyond what the Courts have recognized. I would argue Heller and McDonald both acknowledged a right to carry defensive arms, so in this case, Congress is not overstepping its bounds. Additionally, there is a Right to Travel under the 14th Amendment that is recognized by the Courts, and which provides us with additional structure in this area. Finally, National Reciprocity is something more suitable for Congress’ powers than the courts. The courts can strike down laws, but the creation of a reciprocity regime is something only Congress can do appropriately.

Full Faith and Credit: A lot of people mistakenly believe driver’s licenses are recognized in every state because of this clause. That is not the case. Driver’s licenses are recognized in every state via an interstate compact, or by direct state recognition. It is purely a function of state law. What the Full Faith and Credit Clause means is not terribly well defined, and I believe we’d have trouble with the “public policy” exception the Supreme Court laid out in Pacific Employers Insurance v. Industrial Accident. I think this is the weakest power of the three, but Congress has never done anything quite like National Reciprocity, so it’s still there.

If you want to read a more in-depth analysis of what I’ve discussed here, I’d recommend Clayton Cramer’s new paper: “Congressional Authority to Pass Concealed Carry Reciprocity Legislation” Please keep these arguments in mind when you run into people spouting “states rights” arguments against National Reciprocity. You’ll find a lot of conservatives doing this if you look. Congress has had the power and used the power to protect the civil rights of Americans since the end of the Civil War. It should not be shy about using those powers to protect the Right to Keep and Bear Arms any more than it other civil rights which have been long protected under federal law.

Amish Farmers in New York Denied Gun Rights by SAFE Act

Apparently the SAFE Act is having an unintended consequence for Amish farmers. The Amish maintain a religious objection to being photographed. Before the SAFE Act, private transfers of rifles used to be legal in New York, so the Amish still had means to get a firearm without photo-id. Since SAFE outlawed private transfers, there’s now no way for an Amish person to get around the photo-id issue. New York State has required photo-id for pistol licenses for some time. The Shooter’s Committee on Political Education (SCOPE) is meeting with the farmers to presumably discuss a lawsuit.

The Brady Act essentially requires photo-id to purchase a firearm, and ATF has been pretty clear on the matter:

ATF has been asked whether firearms purchasers may be exempted from the requirement for an identification document with a photograph based on religious objections. The Brady law does not provide for such an exemption. All over-the- counter transfers are subject to the photo identification requirement.

The Brady Act may not provide any exception, but the RFRA certainly does. I would think a plaintiff would easily prevail in a suit against ATF for failing to make a reasonable accommodation under the RFRA.

The SAFE act is another matter, however, being a function of state law. The federal RFRA was ruled not to apply to the states under the 14th Amendment, and unlike most other states, New York has never passed a state analogue. I am not aware of whether or not New York provides religious protection through its courts that is greater than the federal courts provide, but it looks like as of at least 1999 they had not. There has, however, already been a case in the New York courts involving this very subject, from that same article linked previously:

In an interesting application of the state constitution’s free exercise clause, the court in In re Miller recently authorized a religious exemption to a requirement that an applicant for a pistol permit must submit a photograph. An Amish man refused to allow himself to be photographed for the permit on the ground that being photographed was against his religion. In lieu of a photograph, he offered to allow himself to be fingerprinted. The court balanced “the importance of the right asserted” against the governmental “needs and objectives being promoted” and concluded that the defendant’s right to free exercise justified an exemption from the photograph requirement. Although the court did not explicitly spell out a compelling interest test, it did note that “the Assistant Attorney General has argued very ably and cogently that the State’s interests in requiring a photograph are ‘compelling,’ extending beyond mere administrative convenience.” Nevertheless, the court decided that the applicant’s free exercise interest outweighed these compelling state interests because a less restrictive means of identification was available.

This would help them if they pursue relief in state court, but it would seem to me that if it is the federal photo-id requirement that is at issue here, the federal RFRA would be the easiest way to force an accommodation here. If the photo-id requirement is a function of the SAFE act directly, and not just an indirect consequence of banning private transfers, it’s good to see there’s existing cases in the New York Court system that make an accommodation for people’s religious practices and beliefs.

SCOPE may want to consider engaging the ACLU, who has shown a willingness to get involved in these kinds of suits that involve Second Amendment rights, but also touch on some of their traditional areas of litigation, like this case. Their presence on the case may play well with old-school liberal judges (who date back to when liberals cared about civil liberties), and they are experienced at fighting cases like this.

The Whole RFRA Controversy

As many of you have probably heard, Indiana is suffering quite a public relations black eye over passing a state Religious Freedom Restoration Act (RFRA). I tend to side with Professor Reynolds view why this suddenly is:

“Dems need something to agitate the base so it doesn’t pay attention to Iranian nukes, trashed email servers, and an overall culture of corruption. Those who join in are willing enablers.”

There’s also the issue that gay marriage is on the cusp of becoming a settled, and the Dems need red meat for the outrage machine heading into 2016.

Eugene Volokh has an article today on RFRA here. The fact that both sides at various times have hated the Sherbert Test and the RFRA that replaced it, makes me think it probably either offers substantive and good protections that limits both sides in their social experiments, or it’s a weapon too dangerous to let either side play with. I tend to think the former. I have no desire to see people discriminated against because of sexual orientation, but I don’t see much harm or risk of enabling systemic discrimination by carving out some narrow exceptions to accommodate people’s (or closely held corporations) religious viewpoints.

So what’s this have to do with gun rights? Not much. It’s an off topic post. But City of Boerne v. Flores, which is a case that involves the RFRA, and is actually responsible for the many state analogue RFRA’s, is going to be a key case for us when Congress starts using it’s Section 5 powers under the 14th Amendment to preserve Second Amendment rights of American citizens. City of Boerne is going to be Bloomberg’s best friend.

NAGR Opposing National Reciprocity

See NAGR’s release here.

I was previously wary of National Reciprocity supported solely on the herpes theory of the commerce clause, so I don’t outright scoff at people’s concerns with federal involvement in this area. But with the advent of Heller and McDonald rulings, Congress now has another, more constitutional avenue to legislature in this area, namely Section 5 of the 14th Amendment, which grants Congress the power to enforce its provisions that guarantee rights. This has been used to promote civil rights in many contexts in the post-Civil-War period. National Reciprocity is really a quite appropriate exercise of this power, given that the Heller decision assumed a right to carry a firearm, and the Court applied it to the states in McDonald. In fact, I’ll go farther and argue that Congressional action is likely the only way we’re going to restore the Second Amendment to the few remaining states which disrespect it. So let me take on some of NAGR’s arguments.

NAGR argues that the Second Amendment is the only license you should need. No one steeped in this debate disagrees that there should be no licensing requirement for exercising your Second Amendment rights. But Congressional action here doesn’t necessarily legitimize licensing. Previous Supreme Court rulings make Congressional action on unsettled issues like licensing problematic. Even with National Reciprocity, the other side will certainly argue City of Boerne v. Flores, which circumscribed Congressional power under the 14th Amendment. Congress attacking licensing might spark a turf war with the courts, such as happened in the City of Boerne case. We want to be cautious about reaching too far without more guidance from the Court.

NAGR argues that this bill is a trojan horse that will pave the way for federal control of licensing and carry. That is false. This bill gives no federal agency any regulatory control. It will be a law passed by Congress and enforced by the federal courts against the states. Could Congress pass such regulatory control in the future? Sure. But they can do that whether we pass National Reciprocity or not. Groups like NAGR act like anti-gun folks never thought of passing federal gun control before we gave them the idea. Nonsense!

NAGR uses Obama’s lawlessness as a reason not to do this. But this bill offers Obama no regulatory power to abuse. Could he just mandate something anyway? Sure, but again, he could do that right now. It will come down to what the federal courts let him get away with. That’s true with or without federal reciprocity.

NAGR calls this the “National CCW Registration Act,” despite the fact that there is no registration component to the bill. Nothing changes in regards to federal involvement in carry permitting, and nothing could change. All the law does is demand that states recognize each other’s licenses to carry. No more, no less.

NAGR is simply wrong on this issue, very badly wrong. Some Senators and Congressmen may use Dudley Brown’s opposition as cover to avoid taking a hard vote on this.  I’ve made no secret that I don’t like Brown or his organization, but even I honestly don’t know what’s he’s even thinking here.

I don’t think we ought to stop with National Reciprocity either. Lately I’ve liked Glenn Reynolds idea of mandating that, for someone not prohibited by federal law from possessing a firearm, they can’t be sentenced to more than a petty offense, with a fine not to exceed $500 dollars, for any firearm violation not involving the commission of another serious, violent crime. It would be a good next step, and hopefully compatible with City of Boerne. At the least, it represents the kind of remedy we can probably only get from Congressional action under the 14th Amendment.

I would ignore NAGR’s plea to oppose this law, and make sure your friends know it too. NAGR has built up quite a Facebook presence, so Dudley could do serious damage in trying to move this or any other federal civil rights bills forward if more sensible people don’t help educate.

Halfway Through July News Links

Is it the middle of July already? Time does indeed fly when you’re busy. Unfortunately, I don’t think it’s going to let up anytime soon. In addition to working at a client, I’m still doing my regular job, and things there are getting a bit backed up. Running a blog is like having two jobs, so when I have two jobs that I get paid for, three (i.e. this blog) is a bit too much to handle. But I appreciate Bitter filling in. As it often is in the summer, gun news is a bit slow. But let’s see what I have here in the tabs:

Be careful when you leave America. Since my new client is in New Jersey, it’s something I have to be cognizant of. A single .22 hollow point that escaped from your range bag after a day of shooting can land you in New Jersey State Prison for a good while.

Culturally, hunting is in a lot more trouble than shooting. You see plenty of hunters arguing against trophy hunting too when these things come up. It’s never a good idea to feed your presumptive allies to your enemies in the hope that they’ll eat you last.

Do gun owners have any rights liberals are bound to respect? Well, they don’t seem to think so.

Professor Nick Johnson looks at those who are undermining our right to Keep and Bear Arms. He looks into the book “The Second Amendment: A Biography.” I started reading it, got about 1/3rd of the way through. I’ll finish it when I have more time.

Gun control is well and truly a folly with modern technology. But that’s not going to convince people to give it up.

Chicagoland is acting up again, treating shall-issue as may issue. Lawsuits are already filed. It’s funny that the gun control folks justify this intrusion thusly: “If you can’t fly on a plane because of being on a secret government list, you shouldn’t be able to buy a gun.” Well who said that ought to be constitutional in the first place? Last I heard, there was an implicit right to travel.

Is there hope for the future? I think it’s good advice. Of course, one way to neutralize attacks on social issues is to actually not be on the wrong side of younger voter’s values.

I have to agree with Joe. I don’t see any problem with that ad. Even if you’ve taught your kids well, you haven’t taught your friends’ kids.

OSU students sue over illegal campus gun ban.

Does the Religious Freedom Restoration Act violate separation of powers? Not necessary off topic. The article mentions City of Boerne v. Flores (1997). If we get national reciprocity, I can promise you that you’ll be seeing more of that case.

Missouri is considering passing a RKBA provision very similar to the one passed in Louisiana. The more states that do this, the better. It shows that the people aren’t happy with this intermediate scrutiny two-step dance the federal courts have been doing. The Louisiana Supreme Court recently upheld prohibitions on violent felons possessing arms under strict scrutiny, so there should be less credible scaremongering this time.

Just when you thought the stupid couldn’t get any stupider. Seems there’s a lot of stupid going around these days.  I have to agree with Jeff Soyer. The way to convince people we’re not a bunch of loose cannons with guns is not to act like loose cannons with guns.

The Army is looking for a new pistol again. The big problem is the ammunition. Would the world really be a worse place if we announced we were withdrawing from that one aspect of the Hauge Convention?

Why am I not shocked that Bearing Arms is the only place I’ve even heard of this guy?

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.

On Federal Preemption

It’s hard to work through the news of the day to find something to write about waiting for the Verizon guy to run the fiber connection into our bay. But typing a post out on the iPad I can do. A topic that was discussed with some of the academic folks at NRA Annual Meeting is saving the folks in Blue America using the federal government. At this point, it’s mostly wishful thinking. National reciprocity is the only preemptive measure NRA has put on the table, but that is a measure that benefits Red America more than Blue America. In the long term, as I’ve said in a previous post, we can’t tolerate two Americas.

There are several powers of Congress under which this can be accomplished. The familiar ones are the commerce clause and Congress’ Section 5 power of the 14th Amendment. But the Supreme Court has slowly been taking a more narrow information of the commerce clause, and any exercise of the 14 Amendment power runs squarely into the case of City of Boerne v. Flores, which essentially says that the federal courts, and not Congress get to determine the scope of a right.

But when it comes to preempting state bans, and other state restrictions, I think there maybe a power of Congress upon which such an action may most firmly rest:

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
To provide and maintain a navy;
To make rules for the government and regulation of the land and naval forces;
To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
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;

I would argue that it is both necessary and proper for Congress to execute laws that preempt state laws that prohibit or frustrate the ability of ordinary citizens to own, transport, and practice with ordinary small arms, such as, but not necessarily limited to, the AR-15, Beretta 92F, M1911, etc. Congress needs individuals familiar with arms and shooting, in order to have an effective militia from which it may draw to raise an army. I even think in this age of terrorism, National Reciprocity could be plausibly based on Congress’ militia powers.

We ought to be skeptical of federal power, which can used for ill as readily as good, but I don’t see any other means to prevent the spread of this cancer of ignorance. Either we restore a healthy shooting culture to Blue America, or we watch the cancer slowly spread. Colorado was a real wake-up call that we may need to rethink our priorities. If they can beat us in Colorado, it won’t be long before we start losing in other swing states. It wouldn’t be long before they had the votes to screw the rest of us federally anyway. It’s something to think about.

Legislative Priorities in the 112th Congress

I don’t know what NRA is thinking, but I’m thinking our two top priorities need to be:

  • Trying again for national reciprocity.
  • Federal preemption of state and local gun bans.

I know that NRA probably also wants to push ATF reform, and I agree this is important, but these two issues can be carried out using Congress’ Section 5 enforcement powers under the 14th Amendment. There is court precedent in the case of City of Boerne v. Flores, which stated that Congress did not have enforcement powers that were more broad than the Court has established. Justice Kennedy’s opinion from that case:

Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause. Congress does not enforce a constitutional right by changing what the right is. It has been given the power “to enforce,” not the power to determine what constitutes a constitutional violation.

There have been subsequent cases backing up this one, which could make both of these legislative actions problematic. But I am not one to believe the Supreme Court’s rulings were chiseled on stone tablets brought down from Mount Horeb. There is language in Heller to support both of these. Let the Congress tell the Supreme Court what they think the breadth of the Second Amendment is, and let the Supreme Court tell the elected branches of government why that is not the case. Personally, I think they’ll be very reluctant to overturn Congress’ determination.

I believe these two items are more important than ATF reform because they put us on the offensive in the Courts, rather than the defensive. Rather than having to justify why certain restrictions are unconstitutional, we leave our opponents arguing why an Act of Congress is beyond its Section 5 powers under the 14th Amendment. ATF reform is great, but it doesn’t help us much in our struggle to define the meaning of the Second Amendment, which is the most important thing we’re facing right now.

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