Joseph Blocher // 3/16/17 //
A primary goal of President Trump’s gun rights agenda is national concealed carry reciprocity: a federal mandate that all states allowing any form of concealed carry recognize concealed carry licenses issued by other states. Bills are currently pending in the House and Senate that would do exactly that, effectively requiring all states to recognize such licenses, even from the dozen or so “permitless” states that allow concealed carrying for any person of age who is not prohibited from owning a firearm.
Whatever one thinks about the wisdom of these bills, they rest on shaky constitutional foundations.
Federalism and Concealed Carry
Donald Trump called for national reciprocity throughout his campaign, comparing concealed carry permits to driver’s licenses: “If we can do that for driving—which is a privilege, not a right—then surely we can do that for concealed carry, which is a right, not a privilege.”
The day after the election, NRA executive Wayne LaPierre declared that “the individual right to carry a firearm in defense of our lives and our families does not, and should not, end at any state line.” Indeed, national concealed carry reciprocity has long been a priority of gun rights supporters, including the NRA, which argues that it is necessary to avoid “the legal minefield that is the current state reciprocity system.” They point to cases where otherwise law-abiding people have run afoul of carry restrictions when travelling out of state.
Supporters of reciprocity invoke not just policy benefits, but constitutional values. Senate Majority Whip John Cornyn (R-TX), for example, is the lead sponsor of the Senate bill, which he says would strengthen “both the constitutional right of law-abiding citizens to protect themselves and the power of states to implement laws best-suited for the folks who live there.”
Both of these claims are debatable. Law-abiding citizens do have a fundamental constitutional right to keep and bear arms for self-defense—one that does not depend on legislation from Congress. But Cornyn’s bill would expand the ability to carry concealed weapons, and courts have roundly rejected the notion that the Second Amendment protects that particular kind of arms-bearing. In District of Columbia v. Heller itself, Justice Scalia emphasized that “the right secured by the Second Amendment is not unlimited,” noting in particular that “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.”
Cornyn’s second claim is hard to follow. It is almost impossible to see how a federal concealed carry mandate would strengthen the power of states, given that its central function is to explicitly override the judgments that democratically-elected state legislators have made to ensure public safety — thus limiting their power to “implement laws” chosen by “the folks who live there.” Such a law would not completely eliminate state control; out-of-state permit holders could still be subject to other restrictions, like carrying guns in or near schools. But there can be no doubt that national concealed carry reciprocity would represent an exercise of federal power at the expense of some states.
Of course, the invocation of federalism by liberals who oppose the bill, just like the invocation of federal power by conservatives who support it, is likely to elicit howls of indignation and charges of hypocrisy and opportunism. But with regard to concealed carry reciprocity, at least, federalism has not been a purely partisan issue. In fact, of all the constitutional issues on which views of federal power could flip in the coming months and years, gun rights and regulation might be among the few to maintain a semblance of consistency.
Scholars with strong gun rights bona fides have pointed out the constitutional infirmities of a national concealed carry reciprocity bill, and argued for increased Second Amendment deference to state laws. Likewise, many supporters of reasonable gun regulation (myself included) argued for increased local control over firearm policy even in the aftermath of Sandy Hook, when the political prospects for federal regulation seemed bright. Local variation in gun laws has always been the norm in the United States, and for good reason—the traditions, costs, and benefits of gun ownership and use differ throughout the country. Differences in concealed carry permitting are exemplary of this tradition, and go to the heart of the states’ police power. Some but not all states deny permits to abusive partners or stalkers, or impose different age and training requirements.
Finding a Constitutional Foundation
What power, then, might Congress invoke to override the states’ decisions on the matter?
The Commerce Clause is the most obvious candidate, and since the proposed bills limit themselves to the concealed carry of guns that have traveled in interstate commerce, there are strong arguments that it would be satisfied. The addition of a similar jurisdictional hook was sufficient to save the Gun Free School Zones Act after United States v. Lopez. That said, the hook here would arguably be even more attenuated, since the concealed carry bills do not directly regulate guns or even carrying, but rather the recognition of permits.
Whatever its legal merits, endorsing the Commerce Clause may be uncomfortable for those who have long argued against broad interpretations of the commerce power. For that very reason, when a similar concealed carry bill was introduced in 2011, Rep. Justin Amash (R-Mich) and some other conservative politicians opposed it, calling the measure “an unconstitutional bill that improperly applies the Commerce Clause to concealed carry licensing.” He and other constitutional conservatives could do the same this time around.
Amash argued that national concealed carry could instead be accomplished by “legislation premised on the Second Amendment.” The NRA has likewise suggested that protection of the right to keep and bear arms is a sufficient basis for constitutional authority in the area. Jennifer Baker, director of public affairs for the NRA’s Institute for Legislative Action, has argued that concealed carry reciprocity is justified because the current system is “a real problem for law-abiding gun owners who travel across state lines and want to exercise their Second Amendment rights.”
The Second Amendment contains no direct enforcement power, so the suggestion seems to be that Congress could rely on Section Five of the Fourteenth Amendment. That provision gives Congress the power to pass prophylactic legislation to protect constitutional rights from violation by state governments, so long as the means is congruent and proportional to the constitutional injury being prevented or remedied. Reliance on the Fourteenth Amendment is consistent with the fact that the current House bill (though apparently not the Senate version) would abrogate state sovereign immunity and provide for damages, something that the commerce power alone would not allow.
This Section Five argument is a non-starter, however. Courts, beginning with Heller itself, have overwhelmingly held that concealed carrying falls entirely outside the scope of the Second Amendment right, except perhaps in places where open carry is also prohibited. Moreover, even in the absence of a constitutional requirement, all states allow concealed carrying in one way or another, subject to different sets of restrictions—the most stringent of which typically require some kind of “good cause.”
In order to invoke Section Five in service of concealed carry, then, one would have to conclude that concealed carry is a constitutional right (a proposition that courts have rejected), that good cause requirements are unconstitutional (a conclusion that courts have rejected even with regard to public carry more generally), and that national concealed carry reciprocity is a congruent and proportional response. But there is no constitutionally relevant harm, and even if there were, the means chosen by advocates of concealed carry reciprocity would be disproportionate.
A Constitutional Lesson from the President?
Perhaps surprisingly, the President’s reference to driver’s license reciprocity suggests a constitutional foundation for national concealed carry reciprocity—one that doesrespect federalism.
Driver’s license reciprocity is largely governed by individual state statutes and interstate compacts—voluntary agreements among states, rather than a mandate emanating from Washington. Such a solution would be constitutionally appropriate for concealed carry permits as well (Amash suggested as much in his 2011 comments), and indeed many states have already embraced this approach.
Perversely, and in contrast to the status quo, a federal requirement of reciprocity might make uniform treatment less likely, because states including New York or California could choose to forbid concealed carry entirely rather than be required to give equal treatment to permits from states like Mississippi.
Allowing states to reach a voluntary resolution is particularly important because the impositions on states are starkly different in the two scenarios. Driver’s license requirements tend to be more uniform than those for concealed carry, so the costs to federalism are much lower.
And even though differences in the driver’s license system are comparatively minor, that system is still more flexible than the proposed concealed carry system would be. States are not required to recognize all out-of-state licenses from other states—a state with a minimum driving age of 16, for example, might not honor an out-of-state learner’s permit. The proposed concealed carry bills would not give the same latitude to states that issue concealed carry licenses to 21 year olds but not 18 year olds.
These are just a few of the brambles in the constitutional thicket. There may be other possible constitutional foundations for national concealed carry reciprocity—the rarely used Congressional power under the Full Faith and Credit Clause, for example, which raises complications of its own.
But there might also be more fundamental objections, including the anti-commandeering principle, which prohibits the federal government from imposing certain duties on state officials even if there is an Article I basis for the legislation. In Printz v. United States, the Supreme Court struck down a provision of the Brady Handgun Violence Prevention Act that required local law enforcement officers to perform background-checks on prospective handgun purchasers. Might a similar challenge be mounted against a law requiring local law enforcement officers to accept out-of-state permits?
The easiest way to avoid those problems and questions would be to let the states continue handling the issue themselves.