Law & the Courts

Concealed-Carry ‘Reciprocity’ vs. Federalism

(Photo: Gregory Johnston/Dreamstime)
There’s no good reason not to let states work this one out on their own.

I took a number of steps before I started carrying a gun. I got training, I read books and articles by self-defense experts, I learned the laws of my state, I started going to the range regularly, and I did “dry fire” exercises at home to keep my shooting skills up.

I also got a concealed-carry permit, which in Virginia required almost none of the above preparation. All I had to do was get a form notarized and send it in — along with $50 and a copy of the hunter’s-safety card I earned in Wisconsin when I was 13 years old, which allegedly proved my “competency with a handgun.” Nothing would have stopped me from getting a permit and carrying a gun legally if I hadn’t touched a firearm since 1997 and had received no training at all that pertained specifically to concealed carry or self-defense, as opposed to shooting deer in the freezing cold.

It’s perfectly fine, of course, for the state of Virginia to have lax permitting standards and trust that its residents will get the training they need of their own volition and good sense. In fact, a growing number of states don’t require a permit to carry at all — some call it “constitutional carry” — and their streets are not running red with blood.

But the question before us now is whether my Virginia permit should allow me, under federal law, to carry my gun in a much more restrictive state against that state’s wishes — and whether someone from a “constitutional carry” state should be allowed to do the same with no permit at all. Bills in the House and Senate would make this “reciprocity” the law, and the National Rifle Association has made their passage a major goal for this legislative session. The House bill would even force states to let their own residents carry with “non-resident” permits they earned elsewhere, effectively overriding stricter states’ laws entirely.

Mandatory reciprocity is constitutionally defensible, though not for the reasons these bills’ sponsors and most of their supporters seem to think. But it would be a federal overreach, and ultimately a bad tradeoff for conservatives to strike. A sovereign state that requires its own citizens to meet certain requirements before carrying a concealed weapon should be allowed to demand the same of non-residents.

* * *

It’s not a good look for conservatives to decide they want the federal government to do something and only then go hunting for a constitutional justification. But one suspects that is what happened here. Indeed, despite repeatedly introducing reciprocity bills for years now, congressional Republicans still haven’t stumbled upon the one constitutional power that really does allow them to mandate that states recognize one another’s concealed-carry permits.

The seemingly obvious candidate — the Second Amendment, which guarantees an individual right to “keep and bear arms” — is frequently bandied about, and was explicitly mentioned in previous reciprocity bills. But it ultimately fails to justify such bills. It does not forbid states to set the standards citizens must meet if they wish to carry a concealed weapon, nor does it forbid them to enforce the same standards on residents and non-residents alike.

Indeed, since the Founding, many states have banned concealed carry outright, and courts considering these laws typically found they were no violation of the Second Amendment. (The decisions often noted that open carry was a legal alternative, however, perhaps suggesting that open carry is a Second Amendment right, or at least that states must allow one or the other.) The Supreme Court’s Heller ruling specifically noted these decisions:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. [Citations omitted.]

The current House and Senate bills don’t explicitly claim a constitutional justification, but they apply only to the carrying of guns that have traveled in interstate or foreign commerce, which clearly implicates the Commerce Clause. This theory may pass muster in courts bound by decades of outrageous, overreaching judicial interpretations of the clause, but it should not pass muster among conservatives who care about the original meaning of the Constitution.

Per the Commerce Clause, the federal government may “regulate commerce with foreign nations, and among the several states.” Absolutely nothing in that formulation suggests that Congress may regulate in perpetuity every item that is ever sold across state lines; carrying such an item, perhaps decades after it was purchased, cannot in itself possibly be seen as an act of commerce. A similar argument, equally dubious, is that the clause protects the right of interstate travel, and that this in turn somehow enables Congress to force states to recognize travelers’ concealed-carry permits.

There is, however, a constitutional defense of concealed-carry reciprocity that works, one recently advanced by a trio of highly respected constitutional scholars. It’s rooted in the much-neglected and much-misunderstood Full Faith and Credit Clause:

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

To modern eyes, it’s a confusing jumble of words. If states are constitutionally obligated to give “full” faith and credit to other states’ laws, what is there left for Congress to “prescribe” about the laws’ “Effects”?

It’s a question courts have struggled with as well. As the law professor Ralph U. Whitten has explained, current precedent interprets the clause as requiring states to enforce one another’s laws, and the courts themselves, not Congress, get to decide the limits of this requirement. According to the courts, the clause makes an “exacting” demand of states when it comes to other states’ court judgments (particularly monetary judgments), yet simultaneously allows states a lot of leeway when it comes to conflicting statutes (via the “public-policy exception”) — a distinction nowhere to be found in the constitutional text, which puts “public Acts, Records, and judicial Proceedings” on the same footing. The clause’s second sentence, meanwhile, is virtually impotent in this reading, because Congress doesn’t get much say as to the “Effect” of states’ laws outside their borders.

But in recent years, scholars have managed to excavate the original meaning of these two sentences. It turns out that “Faith” and “Credit” are mere evidentiary terms — and thus it’s the first sentence, rather than the second, that should be relatively toothless. As Stephen E. Sachs of Yale has put it, the first sentence “obliged states to admit sister-state records into evidence but did not mandate the substantive effect those records should have. The real significance of the Clause was the power it granted to Congress to specify that effect later.”

It’s not a good look for conservatives to decide they want the federal government to do something and only then go hunting for a constitutional justification.

This reading makes sense of some important elements of the historical record. For instance, the Articles of Confederation contained language similar to the first sentence of the Constitution’s Full Faith and Credit Clause, and yet James Madison presented the latter as a radical improvement in Federalist 42. He paraphrased the new second sentence and wrote that, unlike the previous version, the Constitution’s clause “may be rendered a very convenient instrument of justice, and be particularly beneficial on the borders of contiguous States, where the effects liable to justice may be suddenly and secretly translated, in any stage of the process, within a foreign jurisdiction.”

In addition, as Sachs has spelled out, early Congresses certainly acted as if the clause gave them, rather than the courts, broad authority to decide the effects that one state’s actions would have elsewhere. They considered several bills in this vein, including one that would have allowed bail bondsmen to pursue fugitives across state lines, so long as they presented their authorization to do so to a court in the state they visited. There are obvious parallels between this kind of authorization and a concealed-carry permit.

The upshot of all this is that while the House bill may cross a line by allowing someone to carry in his own state with another state’s permit, the general concept of permit reciprocity clearly fits into Congress’s power under the Full Faith and Credit Clause.

* * *

So, it’s constitutional for Congress to prescribe the effects that one state’s concealed-carry policies and permits will have in another. But not everything that’s constitutional is wise, and conservatives in particular should be wary of forcing their legislative preferences on unwilling states via federal decree.

As noted above, there’s currently a wide variety of concealed-carry policies across the nation. Some states have no restrictions at all; if you can legally own a gun, you can legally carry one. Others have light restrictions. Still others require extensive training and charge high fees. The most restrictive require applicants to demonstrate a “need” to carry a weapon, concealed or otherwise, to the satisfaction of local law-enforcement officials, a policy currently under Second Amendment challenge.

Reasonable people can debate the merits of these different policies, and even of allowing concealed carry at all. Studies hold variously that liberal concealed-carry policies decrease crime, have no measurable effect, and increase crime. Strict training requirements might reduce the chance that someone will shoot himself in the rear end at Walmart, but if they discourage him from getting a permit at all, they also reduce the chance he’ll be able to stop a mugging. These are tradeoffs for states, rather than the federal government, to evaluate, drawing not only on the relevant research but also on the preferences and cultures of the people they represent.

It is the states rather than the federal government that should decide the question of reciprocity.

By the same token, it is the states rather than the federal government that should decide the question of reciprocity. State legislators know the reasoning behind their own permitting regimes, and thus are well-equipped to decide which other states’ policies are similar enough to justify recognizing their permits. Legislators also know their constituents’ comfort levels with civilian-carried guns and their state economy’s dependence on interstate tourism.

Indeed, there is an extensive set of these voluntary reciprocity agreements already; someone with a permit needs only Google to see where it is valid. If his own state doesn’t issue permits, or if its permits are not valid in very many other states, a frequent traveler can earn a non-resident permit from a different state instead.

To be sure, some people can’t be bothered to use Google before roaming about the country packing heat, and liberal states and cities have not always been forgiving of such lapses. New York and New Jersey are particularly aggressive, often charging gun-carrying tourists licensed in other states with felonies that can result in prison sentences, though in practice such charges tend to be either dramatically reduced in a plea deal or wiped out via gubernatorial pardon.

In my opinion, these charges are overly harsh, and states should take the power to bring them out of prosecutors’ hands, stipulating a specific penalty for unwitting travelers guilty of failure-to-Google as opposed to gun-toting scofflaws. But the blunt reality is that if you travel to another state and break that state’s laws, you are subject to that state’s prescribed punishments for your behavior. Up to the point that such punishments become so unreasonable as to violate the Constitution, this is simply not a problem for the federal government to solve.

This is a question not of what the policy should be, but of who should get to make the decision. Conservatives have traditionally held up federalism as an ideal because it minimizes conflicts, allowing different communities to reach different conclusions. That is not always possible, of course — sometimes Congress must protect constitutional rights against infringement by state governments; other times, it is impractical or otherwise problematic for each state to chart its own path. But neither justification for federal action holds here.

READ MORE:

The Need for Smarter Second Amendment Jurisprudence

A Federal Appeals Court Goes to War against the Second Amendment

What Justice Gorsuch Might Mean for the Second Amendment

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