The Constitution applies to all 50 states, even where guns are concerned
courtesy dianerehm.com and Getty

Here’s a novel concept: enumerated civil rights apply equally in every state in the union. Can speech be more stringently regulated in Maryland than it can in Montana? Do police have broader search and seizure latitude in Arkansas than they do in Alaska? Why no, no they don’t. And that means that . . . States have a constitutional duty to recognize gun rights nationwide.

In response to the House of Representatives passing the Concealed Carry Reciprocity Act of 2017 (which would essentially require states to recognize concealed carry permits issued by other states) this month, those who oppose gun rights are invoking states’ rights — an argument conservatives favor in other contexts. But a federalism argument cannot stand where Congress is exercising authority that has been explicitly granted by the Constitution’s Fourteenth Amendment.

The Fourteenth Amendment (along with the Thirteenth and Fifteenth) is one of the Reconstruction Amendments, passed in the immediate wake of the Civil War. It (was) intended to redesign American federalism by requiring the states to respect basic rights of their citizens, including “the personal rights guaranteed and secured by the first eight amendments to the Constitution.”

Isn’t the Second Amendment one of those first eight Amendments in the Bill of Rights? Why yes, yet it is. But wait…aren’t gun rights somehow different?

The question then is: are gun rights protected by the Fourteenth Amendment?  During the debates on the Amendment, and the related Civil Rights Act of 1866 and Second Freedman’s Bureau Act, the right to keep and bear arms was explicitly invoked frequently as one of the elementary civil rights and rights of citizenship that Freedmen, who were regularly and violently disarmed, were entitled to enjoy along with whites. The Supreme Court recognized this and more in 2010, in the case of McDonald v. City of Chicago. In that case, the Court unambiguously held that the Second Amendment is a “fundamental right” that “is fully applicable to the States.”

Huh. A precedent like that could be downright inconvenient for the forces of civilian disarmament if a national concealed carry reciprocity law ever comes before the Supreme Court.

To be sure, there are other considerations that should be part of the reciprocity discussion. For example, moving between and among the several states is a fundamental right upon whose exercise the states may not place a substantial burden. Nor can states discriminate against new residents by treating them differently in matters of importance, like medical care and welfare benefits. This has implications for American gun owners. If a state may not chill the freedom of interstate travel by placing restrictive conditions on certain benefits, it is reasonable to conclude that stripping one’s carry rights in order to cross state lines would also be impermissible under the Fourteenth Amendment.

So while we’re not constitutional law experts, national reciprocity would seem to be on good legal footing should the bill that’s currently in the Senate ever be signed into law, and challenged in the courts. Which you have to expect it would be.

The question now is, what are the chances of a bill reaching President Trump’s desk?

 

 

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64 COMMENTS

  1. If it’s going to happen it needs to happen in the next 8-10 months. The midterms will require us to start from square 1.

    • Which is precisely why it will probably be delayed by the squishy middle. They don’t want to have to take a position on it.

  2. Once again:
    We must always and consistently address this as a civil rights issue – never allow the bigots to mislead the conversation by calling it “Gun safety”, “commonsense gun control”, “Gun violence”, or any of the other preferred euphemisms of theirs.
    It is our civil rights. And what they want is called Gun OWNER Control – anything else we call it is a lie.
    🤠

    • Well said. I’ve been pushing this for a while, along with “standard” capacity magazines and “modern sporting rifle” (still the toughest one). As long as I don’t jab my finger at my liberal audience too forcefully I don’t even get eyerolls anymore.

  3. If the midterms go well and that’s a HUGE if, we might see it happen, but if the doom and gloom crowd predicting that Alabama will forecast the rest of the nation turning to a tide of blue then we had better get our collective asses in gear and really push this bill through in the next few months. I honestly don’t think bama predicts anything other than the fact that a mere suspicion of sexual misbehavior perpetrated decades ago will ruin a politician’s career in short order be it proved true, false, or never proven. Anybody heard anything else about Moore’s accusers? Funny how they quickly disappeared after the election was lost ain’t it?

      • I for one don’t believe there will be a “Tide of Blue”. Putting the bogus left media polls and hype aside, if you’re reading tea leaves, take a look at donations and the amount of hard cash each party has on hand.

        Cash is king – especially in a midterm election cycle. For the 2018 cycle, the RNC has raised twice the cash over DNC with no slow down in sight, and has six times the amount of cash on hand 39.8M (RNC) to 6.42M (DNC). Deduct the DNC’s debts of 2.65M, and that number shrinks to 3.77M cash on hand. In contrast RNC cash on hand is unencumbered, so that makes the ratio of RNC to DNC cash on hand over 10 to 1.

        That doesn’t mean we’re not in for a fight. We most certainly are. The bolshevist gun grabbing left had the taste of victory ripped from their greedy mouths in 2016, and they’re desperately grabbing a straws for any sense of hope and purpose.

        The Governor is right. Moore is a buffoon. The Dems and their left media lapdogs worked overtime to take him down, and succeeded, and there’s a real lesson in that.

        Jones’ single vote does nothing to change the balance of power, especially if one or more Dems truly see the writing on the wall and go rogue in 2018 to keep their seat.

        We can’t be complacent, but in the big picture I think we have a real chance of adding seats in 2018.

        • “Cash is king.” Trump has shown that, like nearly everything else held sacrosanct by politicians and pundits, that isn’t true. The question is whether Trump is the exception that proves the rule or can people learn from him.

          But with more money and more Democrat Senators up for re-election, ten from “Trump” states, we do have a chance to make gains in the Senate. If we have a few legislative accomplishments to tout by election time, we’d have a good chance. If the economic growth improves before the election (or maybe even just stays the same) we’d have a good chance.

        • Trump has shown that the normal political rules do not apply, but the mid-terms will be a bunch of smaller individual elections, which means likely that a lot of the traditional rules may apply more such as cash. A lot think that Trump’s low poll numbers mean that the public will vote against the GOP in the mid-terms, but the problem is that Trump has had low poll numbers since the beginning of his election and landslide victory, in which the polls said Hillary would win a landslide. So as far as Trump goes, I do not much believe the polls. I am not saying that polls are not to be trusted, usually they are right, but with Trump, considering how wrong they were regarding the election and then the fact that they have been low since he was elected, I think they are about as trustworthy now as they were right before the election.

      • I for one thought Moore was a disaster years ago. I do not know of any other judge who was removed from his seat on the State Supreme Court, not once but twice. Nor did I particularly care about the allegations with respect to the teen girls, as nothing he was accused of doing was illegal under Alabama law. Creepy maybe, but not illegal, no matter what words the MSM (who not only wanted to destroy his candidacy but wanted to make him the whipping boy for the entire Republican Party) used to describe his conduct.

    • I’m fairly certain all the Roy Moore means is that Democrats are barely more popular than pedophiles in Alabama. It doesn’t matter whether or not Roy Moore is a pedophile. That’s the way the story was pushed. That’s what a sufficient number of people believed, and the Democrat barely won.

    • Roy Moore’s loss should not be seen as a Blue Rally. (note that I did not say Doug Jone’s win, as it was an anomaly) Moore’s initial reaction and statements cost him the election. He was perceived as a pedophile and still came close.

  4. Can speech be more stringently regulated
    The exercise of rights, speech included, is not regulated in any way.

  5. This bill is unconstitutional. The correct path would be for the Justice Department to sue all of the restrictive states to nullify their UNCONSTITUTIONAL gun laws. That action stands on far better Constitutional ground than another illegal distortion of the ICC.

    • Gman,

      “The correct path would be for the Justice Department to sue all of the restrictive states to nullify their UNCONSTITUTIONAL gun laws.”

      The correct path is for the Justice Department to PROSECUTE all of the governors, attorney generals, mayors, police chiefs, sheriffs, judges, and their underlings under 18 U.S. Code § 242 – Deprivation of rights under color of law.

      After a few of those people head to prison for 20+ years (and pay fines in excess of $10,000 out of their own pockets collected under 42 U.S. Code § 1983 – Civil action for deprivation of rights), they will stop infringing on our rights.

      • The Federal DOJ has NO JURISDICTION over state officials acting in their official capacities to prosecute violations of the Civil Rights Act (42 USC section 1983 et seq.) as specifically provided for by the 11th Amendment of the U.S. Constitution. So just toss that idea in the waste bin. Moreover, state officials are specifically immune under state law for their legislative acts. So it just isn’t EVER going to happen.

        • Mark N.,

          Are you telling me that a state legislature can outlaw free-speech demonstrations in front of City Hall, local/state police can arrest people for it, the governor and attorney general can prosecute people for it, a judge can allow trials to proceed and issue prison sentences for it, and the United States Department of Justice has no jurisdiction to prosecute the police, governor, attorney general, and judges for deprivation of rights under color of law?

          Then what the Hell good is 18 U.S. Code § 242 ???

        • The 11th simply states that no other state or foreign entity can sue a state. There is no proscription for a Federal lawsuit.

        • That’s why they have to be sued in their individual capacities. Then it’s up to the state to step in if they wish.

          But I wouldn’t mind seeing anti gun politician, police, etc go to prison under Sec 242 or lose their homes and children’s college savings via 1983 lawsuit.

    • While I don’t have a settled opinion on whether the legislation is constitutionally valid, I do agree that it is only legislation; legislation that can be easily overturned. Only penalties handed down by the court system can have long term effect. However….the courts are largely (overwhelmingly?) liberal, largely anti-gun, anti-2A. If any court should issue an injunction with jail time for contempt (non-compliance), we would then be left depending upon a hyper-liberal justice department for enforcement.

      Fact is, the second amendment IS different from all other enumerated rights. It is the only one with potential overthrow of the government as a base element. Since the SC determined that “reasonable restrictions” are permitted in curtailing the extent of second amendment protection, arguing “reasonable” becomes “bailing water with a fish net”. No one can thoroughly define “reasonable”, but they know it when they see it.

      National reciprocity is not the cure-all. It might be a lawyer’s retirement plan. The legislation is designed to generate eternal argument, and no definitive resolution. The most long-term temporary settlement of 2A issues is to change the culture such that 75%, or more, of the voters are “pro-gun”. A demographic like that would be hard to ignore (election-wise). But, as it happened before, the culture will reverse again.

      • “reasonable restrictions”
        There are no restrictions whatsoever upon the free exercise of one’s rights. NONE.

        The entire term is nonsensical.

        • Your statement may be true on Ork, but not Terra.

          All “rights” are restricted in some fashion. That is reality. My comment regarded “reality”, not academic imagining.

          How has “shall not be infringed” effectively and actively restored your rights to a status of “absolute”?

          When you can prove that among all of us, you alone have achieved what none of us have, please call in again.

      • It seems to me that society as a whole swings like a pendulum from conservatism to liberalism and back, over and over again. The Courts are always behind the curve, applying the law from the last generation, which in turn acts as a control wheel on social change, preventing change from happening too quickly, and theoretically reducing the disruptions caused by radical change.

        • Agree.

          Protecting the constitution is never finished (as we were warned). The dark forces never give up. They hammer at the light constantly. As it sits, people in the light do not have as their single, zealous goal the daily and personal rule over others. As a result, they lose interest in keeping up the fight. People in the light want matters permanently settled so that they can go about their own affairs (which is precisely what people in the dark hate and detest). People in the light lose heart because they have no desire to make vassals of other people; to force people to live as people in the light do.

    • The correct path is for all government officials to honor their oaths to the Constitution. Legislatures, executives, and judges have all failed us. While all branches have failed us, the only branch that could have unilaterally stopped this is the judiciary. They’ve been blowing it hard for eighty years (on the federal level).

  7. States don’t have rights. They have powers granted to them by the people and enumerated in the Constitution and the 10th Amendment. Only people have rights.

    I would find it hard to believe that it could pass a 60 vote threshold in the Senate, but then the Demoncrats have the vast majority of seats up for reelection next year, so maybe it’s possible. I think they’ve got seats up in Montana and Nebraska, maybe a couple other pro-2A states.

    The mobsters that run states like NJ don’t care about any of your rights and another law won’t change that. Passing national reciprocity might keep you off the felons list, but they c an still slap the cuffs on you, hold you for 72 hours and keep your cash and gat under civil asset forfeiture and you’re only recourse will be to come back and prove in court that you’re not a drug dealer.

    • Sorry Charlie….I mean Bill. States rights are NOT enumerated in the US Constitution; instead, the US Constitution is solely concerned with the creation of the Federal Government. The first ten amendments are express limitations on those governmental powers, i.e., expressions of powers not granted or granted only in part, to the federal government. The Tenth Amendment states that powers not delegated to the United States by the Constitution, “nor prohibited by it to the States, are reserved to the States, respectively, or to the people.” States DO have rights. Go read the Articles of Confederation which expressly recognize that the 13 states are independent sovereigns. The Constitution changes that not at all.

      • Powers are reserved, not rights. A fine and perhaps even meaningless distinction.

        Such a distinction does remind me of Judge Napolitano trying to explain the difference between the Louisiana (or it was a local government) government’s power to force people to do something and their authority to do it to John Gibson on “The Big Story.” The moron couldn’t even see that Napolitano was making a distinction between authority and power.

        • A LEO standing in the road, holding out a badge and command a speeding semi to stop is “authority”. The driver of the semi refusing to stop represents power. When authority and power meet, the LEO is roadkill.

      • I have to admit that I have in the past posted replies without reading the entire comment, but how you missed the very first sentence in my comment is beyond me.

  8. “So while we’re not constitutional law experts …”

    This is perhaps the greatest problem facing our nation today: you have to be a “law expert” to have a snowball’s chance in Hell of prevailing in the courts — assuming that you can even get a court to take your case, much less a court with favorable judges.

    What that means is that our courts no longer exist to serve justice. Rather, our courts are now a tool for the extremely wealthy to exploit the masses with an air of “legitimacy”.

    Anyone of average intelligence should be able to state their case plainly in court before a jury of their peers and be almost guaranteed to prevail if their cause and evidence is right and just. All the procedural garbage and Latin language has no place in a court of the people.

    • “Anyone of average intelligence should be able to state their case plainly in court before a jury of their peers and be almost guaranteed to prevail if their cause and evidence is right and just. All the procedural garbage and Latin language has no place in a court of the people.”

      I really like this concept….if only that were true!

        • 1. It’s not the definition, but an example. 2. It’s a fool, not an idiot. The saying is “a lawyer who represents himself has a fool for a client” and is usually used in the context of trial.

      • TX_Lawyer,

        Whether or not a person of average intelligence is an “idiot”, they know right and wrong and how to explain what happened to them.

        An average person who wants to be armed for self-defense knows that it is wrong for the local police to jail them for having the ability to save their own life. They can plainly explain that they were armed for self-defense and that the police arrested and jailed them for it which is wrong. And a jury should find him/her not guilty.

        There should be no “tricks” that the prosecutor can play — pulling from thousands of pages of codes, procedures, precedents, and legal “art” — that prevent the person from having their day in court, plainly explaining what happened, and getting a fair and just verdict from a jury of their peers. (Or getting a fair and just decision from the U.S. Supreme Court.)

        • “how to explain what happened to them.” – No. They don’t. The first part of representing someone in virtually any legal matter is getting them to explain to you what happened or what result they are looking for and why. This is true for civil or criminal matters. It is true for transactions work or litigation. The average person is very bad at this. People typically get caught up on things that are completely irrelevant, often times, irrelevant and harmful.

          I always thought your name was a reference to the fact that common sense isn’t all that common. That the common (average) person was an idiot. Personally, I’d be an elitist if I thought there was a good way to choose elites. Elites would be people who are smart enough to know they didn’t know enough to run the economy, etc.

  9. “Can speech be more stringently regulated in Maryland than it can in Montana? Do police have broader search and seizure latitude in Arkansas than they do in Alaska? Why no, no they don’t.” The implication is technically incorrect. I don’t know whether or not it is factually correct.

    “Can speech be more stringently regulated in Maryland than it can in Montana?” – Since the question is entirely hypothetical, the answer is yes. The courts allow quite a bit of regulation on speech. The states may, but don’t have to, regulate speech within the bounds laid out by the courts. So one state can regulate more speech than another.

    “Do police have broader search and seizure latitude in Arkansas than they do in Alaska?” I don’t know, but most policing agencies have broader search and seizure latitude than Texan policing agencies. Under the Constitution, it is not prohibited for the government to use evidence obtained illegally by a private party who was not acting as an agent for the government. In Texas, such use is prohibited.

    The Constitution draws a line states can approach but not cross. Some states get closer to the line than others.

    • “Do police have broader search and seizure latitude in Arkansas than they do in Alaska?”

      Yes, they do. The author, presumably by accident, happened to pick one of a very few states (Alaska) which is more restrictive on the issue of police searches than the federal caselaw, at least as it comes to vehicles.

      • Does anyone know if Arkansas is par for the course on search and seizure law? I imagine that’s the case with Hannibal’s reputation for knowledge and his statement of “of a very few states” being any more restrictive on themselves than the feds require.

        • You made me do some looking because I was wondering what the other states were. I can say that Arkansas is NOT one of them, if indeed any exist at this time. Arkansas follows the national standard of the motor vehicle exception. McDaniel v. State (1999) addresses this even if it’s not the single point of appeal.

          Pennsylvania, at one point, joined Alaska in not allowing warrantless searches of vehicles without additional exigency beyond them being vehicles (i.e. Carroll v US) ; however, PA’s supreme court reversed that interpretation relatively recently. Alaska, on the other hand, has a “right to privacy” in its Constitution which its courts can take into account beyond federal caselaw.

          Unfortunately there seems to be no easily found brief on which, if any, other states still further restrict the motor vehicle exception. I found contradictory information on Iowa, but it appears that they decided to allow the exception after some confusion (State v. Storm). CT has some (minor) technical differences regarding impound searches.

          Now I’m trying to find the AK case that establishes its vehicle exigency laws and make sure that it hasn’t changed recently since PA… wouldn’t it be amazing if this kind of information were available on a reasonably easy basis to citizens who aren’t lawyers in every state?

          • “Do police have broader search and seizure latitude in Arkansas than they do in Alaska?” So it turns out the answer is yes, yes they do*. Hilarious.

            *At least as it concerns searches regarding motor vehicles. I’m sure there is an example for every combination of states where the police in state A have more power in a certain situation than in state B and vice versa.

        • I give up. Aside from police practice, I can’t find the defining case for Alaska- other than multiple legal briefs that all say that the Alaska Supreme Court has not adopted the doctrine of the warrantless automobile exception (with exigency baked in more or less automatically).

  10. Some states could care less about the our Constitution. Most political hacks could care less too. Just think of NY and commie kalifornia, the worst of the worst.

  11. “These enforcement clauses were explicitly and implicitly the source of authority for Congress to pass the various Civil Rights Acts, including the Voting Rights Act, for over 150 years.” That’s about half true. “Congress asserted its authority to legislate under several different parts of the United States Constitution, principally its power to regulate interstate commerce under Article One (section 8), its duty to guarantee all citizens equal protection of the laws under the Fourteenth Amendment and its duty to protect voting rights under the Fifteenth Amendment.” – Wikipedia. All the stuff in federal civil rights law about private parties not discriminating based on race, color, religion, sex, or national origin is done through the Commerce Clause. Legislation passed under the 14A is pretty limited.

    “The particular source of the right asserted was the Due Process Clause of the Fourteenth Amendment — with which Justice Clarence Thomas famously and eloquently took issue in his concurrence, arguing that the true source of the right was the Fourteenth Amendment’s Privileges and Immunities Clause.” This is something to look at (link in the article). The argument that the Due Process Clause is how the 14A incorporates the BoR is, frankly, nonsense. That would make most of the BoR surplusage as the BoR has its own Due Process Clause.

  13. Whether either bill progresses in the Senate is in the hands of Mr. McConnell, who does not seem overly concerned with doing so, but why I have no clue.
    Adding to the intrigue is Senator Cornyn who, for reasons that seem to me to be little more than ego, wants his bill to pass and the FixNICS to be considered separately, rather than together as the House bill is. This is utter idiocy. The Democrats want FixNICS and if it is included with reciprocity, and the Democrats vote against the House bill, then they can be accused of failing to act to protect people from others who are barred from owning guns (which would be bad in the midterms). If the bills are separated, reciprocity will fail because there is no hook to hold the Democrats’ feet to the fire.

  14. My favorite reply to the Giuliani types (and Democrats in general) who think there’s a state specific version of the U.S. Bill of Rights for each state:

    “If the 2nd Amendment means something different in the Bronx than it means in Biloxi, does the 13th mean something different in Savannah than it does on Staten Island?”

  15. The Hearing Protection Act is now a distant dream thanks to the jerk in Vegas who, for reasons still unexplained somehow managed to smuggle a bunch of long guns up to a high floor in a casino, then, again, for reasons unexplained, decided to do an ammo-dump into a crowd some 300 yards away. Idiot. This is why the rest of us can’t have nice things.

    Also, it would be great to get real information about his autopsy including the drugs and chemicals in his bloodstream. Why hasn’t that been released? We’ve heard all about the victims.

  16. Nice words, but I live in California.

    I can tell you in no uncertain terms, that the constitution of the United states most certainly does NOT apply here.

  17. The Constitution does not apply in socialist territory. We are one vote away from being all socialist territory. A Socialist Republic will not be bound by The Constitution or any other laws, rights, freedoms that we once had.

  18. The chances of it reaching PRESIDENT Trump’s desk are three, zero, zip and nada. The Senate RINOs will not let this pass. And yes I know that Mc Cain is a sponsor but when it comes to the vote, if he is still around, he WILL vote against it. Mark my words.

  19. The answer to the “Can one state regulate -*(Civil Rights?)*- something more stringently than another…” And all the various examples….TX lawyers statist answer sounds like the usual status Quo of Lawyers ruining the World… We the People should all know…*(That one people from one state..Going into another state…Has the same rights as any other person in any other state…)*

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