We are all miserably accustomed to being informed that our rights must be curtailed because the Founders “couldn’t have imagined” the way in which they would eventually be exercised. “Well, sure it made sense to have an armed population back when the people only had muskets,” this argument tends to go. “But now that four-year-old children can buy semi-automatic nuclear death-rays with their Happy Meals, it’s just anachronistic.”
Silly as this approach ultimately is — basic individual rights do not rely upon the date for their integrity — it is one that can at least be earnestly entertained. 1789 was, after all, a different world. But what about 1986? Can laws written this recently really be said to have had a meaning then that we cannot apply reasonably now? The Third Circuit certainly thinks so, and a decision it issued last year has led to a significant number of people’s being arrested, charged, and thrown in jail. It is high time that this came to a stop. The problem is this: Because America has a federal system of government, the majority of the gun laws are set at the local level. Thus “assault weapons” that are banned in Connecticut and New York are readily attainable in Texas and Idaho; thus permissive concealed-carry regimes are available to the citizens of Vermont and Arizona but not to those in New Jersey and Illinois; and, thus, as one might expect, the transportation, brandishing, sale, and storage rules differ wildly by location. What is good for one set of people is anathema to another. Up to a certain point, this is all well and good. Indeed, within constitutional bounds, local variation is a good thing. It allows individuals to run their communities as they see fit, and it keeps an out-of-touch central government from imposing a single set of rules upon a big and diverse country. Nevertheless, however fractured the political system becomes, a question remains: What happens to people who are merely traveling through? What, for example, does one do if one wishes to drive across the country with a firearm — to and from places where one has a legal right to possess a gun, but through places where one does not?
It was this problem that an amendment to the 1986 Firearm Owners Protection Act set out to address. In that year, Congress decided that the federal government would preempt states with strict gun-control laws and prevent them from applying these laws to Americans who were just passing through. The text of that provision holds that
notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, that in the case of a vehicle without a compartment separate from the driver’s compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console.
In almost every state, the law has been followed as it is written: that is, as a protection that covers Americans who utilize all forms of transportation. Thus, gun owners across the country have been allowed to drive through all states with impunity, providing that their origin and destination states allow them to carry; they have been afforded the opportunity to check guns at one airport and pick them up at another; and they have been permitted to make short stops in unwelcoming jurisdictions on their way to happier climes. “Almost,” however, is an important word: True to form, both New York and New Jersey have recently decided that their own rules should trump federal law. And the results have been disastrous.
Much to their surprise, many gun owners have been arrested when trying to check in with firearms for flights out of New York and New Jersey airports, when trying to collect their firearms at airports in those states, and even when diverted from other flight paths and given back their bags prematurely. The New York Times reported on the results:
There were 42 arrests for gun possession in the two airports [La Guardia and Kennedy] in 2012, according to the Queens district attorney’s office. Some charges of criminal possession of a weapon bring minimum sentences of three and a half years in prison. Like many arrested in New York, the gun owners can wait a day or more behind bars for a hearing before a judge.
In all cases, the guns were subsequently confiscated and destroyed, sending a clear message to anybody who lives in the most populated area of the country: If you try to fly with your guns, we will arrest you and smash your property.
Unhappily, New York and New Jersey have been helped on their nasty little way by the Third Circuit, which ruled somewhat bizarrely in 2013 that a provision in FOPA that refers only to “vehicles” could not conceivably be held to apply to commercial aircraft. The case was brought by a man named Gregg Revell, a resident of Utah who was arrested by the New Jersey police while on his way to Allentown, Penn. At Newark Airport, Revell missed his connecting flight, necessitating a night’s stay in a hotel. As is standard procedure, he was given back his luggage for the evening and instructed to recheck it the next day. When he attempted to do precisely this, he was arrested — and charged with illegal possession of a firearm.
Revell sued, claiming indignantly that he was protected by FOPA and that the state’s law did not therefore apply. Alas, the courts disagreed. The Third District acknowledged that Section 926A “amended a far more expansive entitlement to ‘transport an unloaded, not readily accessible firearm in interstate commerce,’ which was passed just two months earlier as part of the Firearms Owners’ Protection Act” but it ruled anyway that the amendment “benefits only those who wish to transport firearms in vehicles — and not, therefore, any of the kinds of ‘transportation’ that, by necessity, would be involved should a person#…#wish to transport a firearm by foot through an airport terminal or Port Authority site.”
All told, this was a peculiar decision. For a start, it is very difficult to comprehend why airplanes don’t count as “vehicles” when nowhere in the statute is it defined what a “vehicle” is or is not; when 48 of the 50 states consider airplanes to be protected; and when one is, in fact, less able to access firearms put into cargo from the “passenger compartment” of an aircraft than one is from the passengers’ area of a car. Sure, one has to walk “by foot” with a firearm when embarking or disembarking a plane, and this distinguishes the transaction from, say, walking to and from a car, with the gun remaining in the trunk, when one has stopped to gas up or buy food. Still, it’s peculiar that a federal government that sought to make it easy for Americans to move firearms around the country and that explicitly refrained from defining what “vehicle,” “transporting,” or “transporting vehicle” was supposed to mean would have intended to exempt aircraft from the law. It’s even more peculiar that a court would side with an interpretation that sends an innocent man to prison.
In 2012, a Republican congressman named Morgan Griffith attempted to clear up the confusion with H.R. 4269, a bill that, among other effects, would have made it clear that FOPA protected Americans who were “staying in temporary lodging overnight, stopping for food, fuel, vehicle maintenance, an emergency, medical treatment, and any other activity incidental.” The bill died in committee — and, given the terminal vagueness of its language, this was probably a good thing. Certainly, one can award a good grade to Griffith for his attempt to “more comprehensively address the interstate transportation of firearms or ammunition,” but one cannot give many points for execution. As well as the above definition of “transport,” there was one vague reference to “transportation . . . by other means.” And that was about it: no mention of airplanes; no mention of airports; no firmly worded instruction that New Jersey and New York were henceforth to consider themselves warned. Nothing, in other words, to prevent a future court from making the same mistake.
This is an election year, and Republicans are likely to face a host of wedge issues that have been concocted solely to score political points. They will need some of their own with which to fight back. Enthusiastic as the likes of Michael Bloomberg might be about spending their money in quixotic pursuit of a great gun-control regime, it remains the case that Democrats do not enjoy discussing firearms law, and they most certainly do not wish to go on the record as opposing popular bills. Now is an excellent time for the GOP to introduce a measure that protects everybody who travels with guns, and for their candidates to sell it on the reasonable (dare I say “commonsense”) grounds that innocent Americans should not be sent to prison because they miss their connecting flights or because the weather changes in the skies of the Northeast. If we are to be told that Congress couldn’t have imagined airplanes as long ago as 1986, then we might counter the claim with our own: Well, it can sure as hell imagine them now.
— Charles C. W. Cooke is a staff writer at National Review.