Politics & Policy

The Other Reciprocity Argument that Conservatives Should Make: Gun Rights

Handguns on display at a store in Uniondale, N.Y. (Reuters photo: Shannon Stapleton)
The Constitution may require states to recognize each other’s firearms permits.

It seems likely that Trump’s victory, coupled with the Republican majority in Congress, may soon bear fruit for many gun owners. Though the president-elect is more than a month away from taking office, reports are already circulating about legislation drafted by Representative Richard Hudson (R., N.C.) to require national reciprocity for concealed-carry permit holders — an idea Trump endorsed on the campaign trail. The bill would pave the way for concealed carriers licensed in one state to have their licenses recognized by other states that allow concealed carry. However, the Constitution may actually already require national reciprocity for the more basic right to keep a gun in the home — not because of the Second Amendment, but because of the constitutional right to travel.

More than 40 years ago, in Shapiro v. Thompson, the Supreme Court struck down requirements that new entrants to a state establish residency for at least a year before being allowed to obtain certain welfare benefits, citing the fundamental right to travel within the country. In other words, states may not condition the right to move from state to state on the temporary surrender of certain benefits.

In today’s economy, it’s not unusual for citizens to live in multiple states over the course of their working lives. However, states often have different requirements that citizens must meet to exercise the right to keep a firearm in their home for self-defense. Some jurisdictions require them to obtain permits, which often can’t be obtained until after they have become residents. Indeed, in New York City, for example, a pistol-permit application must be submitted in person. So for citizens who become gun owners in one state but decide to move to another, the lack of reciprocity means that they must temporarily give up their ability to exercise their right to keep and bear arms in order to exercise their right to travel among the states.

As such, viewing the Court’s recognition of an individual right to keep and bear arms in the home in D.C. v. Heller, together with its recognition of a right to travel free of undue burdens, raises an interesting question: Can states condition the exercise of the right protected in Shapiro on the temporary surrender of the right protected in Heller? If the answer is no, citizens should no longer have to sacrifice the security of their households in order to take a job in another state. I am aware of no basis in the Constitution for the claim that a state such as New York, for example, can suspend the gun rights a citizen enjoyed in, say, Illinois — even temporarily — simply because he or she has chosen to work, or enjoy a vacation home, in the former.

#related#While it’s true that Scalia’s opinion in Heller leaves room for states to reasonably regulate the rights protected by the Second Amendment, the analysis is different when it comes to the technically unrelated right to travel. So the fact that a state’s regulations may not violate the Second Amendment doesn’t mean they don’t place an undue burden on the right to travel. It can certainly be claimed that the argument advanced here is distinguishable from those that were before the Court in Shapiro, insofar as states have a stronger interest in minimizing gun violence within their borders than they do in saving money on welfare. However, those concerns would have to be viewed in light of the fact that, unlike the entitlement to welfare at issue in Shapiro, here we would be talking about the effective suspension of a constitutional right.

So if a state may not require you to temporarily give up the ability to enjoy welfare benefits to become a resident, it would hardly seem constitutionally permissible for a state to require the temporary surrender of your legally owned firearms to become a resident. In other words, it may actually be that the constitutional right to travel requires national reciprocity when it comes to a law-abiding citizen’s right to keep a gun in his or her home for self-defense. As such, efforts to achieve national reciprocity ought to be adjusted to remedy what is potentially an ongoing violation of the constitutional rights of many citizens who, like myself, became gun owners in one state, and had to give up their firearms to move into another.

— Rafael A. Mangual, a graduate of the DePaul University College of Law, works in New York City.

Rafael A. Mangual is a fellow and deputy director of legal policy at the Manhattan Institute for Policy Research, and a contributing editor of City Journal.

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