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Two Gun Bills the New Republican Congress Should Consider

Now that Republicans are in full control of Congress, there are a couple of firearms related bills that I would like to see debated. The first would fix the Firearms Owners Protection Act of 1986 (FOPA), making it clear henceforth that the law’s “safe passage” provision applies to airports as well as to highways. Earlier in the year, I noted that the states of New York and New Jersey have managed to exempt themselves from FOPA’s remit, thereby preventing Americans who rely upon JFK, LaGuardia, and Newark airports from traveling with their guns. As a result of FOPA, I recorded:

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.

. . . 

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.

Congress can easily fix this problem by redrafting the language of the law. It should do so.

The second bill — lets call it the “Shaneen Allen Concealed Carry Reciprocity Act” for fun — would reprise an idea that has died in the last few legislative sessions but whose time may finally have come. Here, the NRA explains how previous versions of such a law would have worked:

The Right-to-Carry Reciprocity Act of 2013 (H.R. 2959) has been introduced in the U.S. House of Representatives by Congressmen Richard Nugent (R-Fla.) and Jim Matheson (D-Utah).  The bill would allow any person who is not prohibited from possessing or receiving a firearm under federal law and who has a valid, concealed firearm permit to carry a concealed handgun in any state that issues its own residents permits to carry concealed firearms.  Persons carrying a handgun in another state pursuant to H.R. 2959 would be subject to the laws of that state with respect to where concealed firearms may be carried.  Similar legislation to H.R. 2959 passed the U.S. House of Representatives in 2011 by an overwhelming bipartisan vote of 272-154.

H.R. 2959 would not create a federal licensing system, nor authorize the federal government to interfere with the powers of the states to set standards for the issuance of carry permits, nor establish federal standards for carry permits, nor override state laws allowing for the carrying of firearms without a permit. Rather, it would simply require the states to recognize each others’ carry permits. 

I have long been uneasy about this proposal on the grounds that it undermines federalism and involves Washington D.C. where it does not belong. Perhaps I still am. And yet, of late, I have begun to wonder. Over at the Patriot Post Greg Taggart argues that this is really ”not an assault on state sovereignty” because:

The proposed law does not empower the Federal Government in any way. It merely requires that any state which issues a concealed carry license, concealed handgun license, whatever your state calls it – must honor a similar license issued by another state. No state is compelled to have a concealed handgun license, and any state that does not, will not be required to recognize one.

Taggart goes on to suggest that “The Full Faith and Credit Clause” dictates that:

States are constitutionally required to recognize magisterial acts (the mundane legal administrative activities) of other states, i.e. a New Mexico driver license is good in Massachusetts and Minnesota, Alabama and Alaska. A court judgment from Oklahoma can be enforced in New Hampshire. A County Clerk’s certificate from Texas is acceptable in Utah.

Why then, he asks, are concealed carry permits excluded?

To dodge the “Full Faith and Credit” bullet, opponents argue that concealed carry licenses are not mundane administrative acts of a state. These folks contend that a carry permit is instead the conferral of a strange and special privilege upon certain rare and deserving people after long and arduous process and deliberation.

This is indeed what “opponents” argue. In 2009, when the idea was first seriously mooted, anonymous progressive blogger, “Marius,” suggested that the conservative desire for such a law is representative of right-wing hypocrisy on the question of states rights. It is, he proposes,

by no means mandatory that any state recognize as valid, or lend any weight whatsoever, to extraordinary state-created privileges like concealed carry laws. Any argument to the contrary would build the concealed carry privilege into a right, which it emphatically is not. Without the full faith & credit argument, though — which would treat the Thune amendment as merely doing what ought to be done, anyways — the Thune amendment starts to look fairly draconian, or at least offensive to any strict notion of “states’ rights.” After all, not all concealed carry laws are created equal, and several states already provide their own form of reciprocity by state law. Who’s Congress to preempt these delicately balanced arrangements?

I am partly convinced by this. And yet this view does seem to be challenged quite seriously by subsequent court decisions. In Peruta v San Diego, the Ninth Circuit held that carrying a firearm is not a privilege, but a constitutional right. Per Dave Kopel:

The Ninth Circuit’s decision in Peruta v. San Diego, released minutes ago, affirms the right of law-abiding citizens to carry handguns for lawful protection in public.

California law has a process for applying for a permit to carry a handgun for protection in public, with requirements for safety training, a background check, and so on. These requirements were not challenged. The statute also requires that the applicant have “good cause,” which was interpreted by San Diego County to mean that the applicant is faced with current specific threats. (Not all California counties have this narrow interpretation.) The Ninth Circuit, in a 2-1 opinion written by Judge O’Scannlain, ruled that Peruta was entitled to Summary Judgement, because the “good cause” provision violates the Second Amendment.

The Court ruled that a government may specify what mode of carrying to allow (open or concealed), but a government may not make it impossible for the vast majority of Californians to exercise their Second Amendment right to bear arms.

Currently, the Ninth and Seventh Circuits have taken this line, while the Second, Third, and Fourth have taken the opposite approach. As of yet, the issue has not been pronounced upon by the Supreme Court. Until such time as it does, I suppose that the question will remain open. 

At the very least, I’d like to see this bill debated. What happened to Shaneen Allen was not a one-off. Indeed, it is reasonably commonplace. And, as more Americans obtain carry permits and firearms, the number of similar incidents seems likely to increase. This is a low priority, of course, but at some point in the next two years, it will be time for Congress to send some fixes to President Obama’s desk.


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