From Tenth Amendment Center
Is national concealed carry reciprocity something that should be passed, from a Constitutional perspective?
Many gun owners support this proposal based on their policy preference. They argue that it will simplify the system, and ensure that law-abiding American citizens can enjoy their “Second Amendment Rights nationwide.”
On its face, this seems like a wonderful idea, but the threshold inquiry should be, “Does the general government have the authority to enact such a law?”
Any firearms enthusiast is aware of the variety of regulations governing them among the 50 states. Anyone who has been issued a concealed carry weapons permit (CCW) is also aware that not all states will honor their permit, as reciprocity is not recognized among all of the states, as are, for instance, driver’s licenses.
In 2016, candidate Donald Trump released his official policy position regarding the Second Amendment on his campaign website. He proposed a law that would require states to accept every other state’s CCW permit as valid within its borders. Presently, there is a system in effect, but it is one created among the states. Some have reciprocity with many states, such as Utah, Florida and Wyoming, while others have reciprocity with no states, such as California. Thus, licensed residents of one of the former states must disarm themselves when crossing California’s border. Those who may not be aware of local regulations may find themselves in trouble with local law enforcement agencies if they inadvertently carry their firearm in a manner that does not conform to local standards.
Richard Hudson (R – NC) sponsored a national CCW reciprocity bill in Congress. He cites the Second Amendment in a written Constitutional Authority statement, which essentially requires a bill under considered provide a statement showing that it falls within a power granted to Congress in the Constitution.
Why the Second Amendment?
To gain a more thorough and accurate Constitutional understanding of the Second Amendment, one must consider the context with which it was adopted, and the thinking at the time of the generation that brought it into fruition. Likewise, one must grasp the intent of the Constitution in general, which simply instituted a “union” of sovereign republics and created a “general” government to which certain, specific enumerated powers were delegated.
The founding generation had an immense fear of standing armies. These led to war and, in the overwhelming majority of instances, also led naturally to a centralization of power in government. James Madison said of war that “of all the enemies to public liberty war is, perhaps, the most to be dreaded” and that this is so “because it comprises and develops the germ of every other”. Madison went on to explain that “War is the parent of armies; from these proceed debts and taxes.” Furthermore, “armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few”. Madison further explains that “a standing military force, with an overgrown Executive will not long be safe companions to liberty. The means of defense against foreign danger, have been always the instruments of tyranny at home. Among the Romans it was a standing maxim to excite a war, whenever a revolt was apprehended. Throughout all Europe, the armies kept up under the pretext of defending, have enslaved the people.”
St. George Tucker wrote the first systematic commentary on the Constitution. He provided further context to the right of bearing arms and the prevention of the existence of standing armies when he pointed out, “Wherever standing armies are kept up, and when the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.”
Such was the reasoning of the founding generation, and this should illustrate why they were averse to implementation of standing armies. After all, they’d experienced the negative effects of a standing army first hand.
The Second Amendment thus came about as a means of preventing the need for standing armies by keeping “the militia,” that is to say “every able bodied person,” under the auspices of the individual states.
Article I of the Constitution authorizes Congress to arm the militia. Based on this clause, some feared Congress could likewise either refuse to arm it, or perhaps disarm it. So, the Second amendment served two distinct purposes- avoiding the need to implement standing armies, and reserving to the states the authority to regulate arms in an effort to leave ultimate control over the government within the hands of the states and their respective people. Or, as Madison put it in Federalist 45:
“The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the state governments are numerous and indefinite…The powers reserved to the several states will…concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the state.”
Madison had argued throughout the Philadelphia Convention for a federal “negative” (veto power) over state laws. This idea was rejected on each attempt. When a number of states insisted a Bill of Rights as a condition of ratification, he argued against it saying, as did Alexander Hamilton and James Wilson, among others that it would be redundant since the “general” government had only the powers specifically enumerated.
When he introduced the proposal for a Bill of Rights to Congress, Madison wanted some of the provision to be made applicable against the states. He argued that was where liberty would be most likely threatened. Again, he was defeated unanimously. The Bill of Rights was never understood to be applicable against the states. There is absolutely no historical evidence of the Bill of Rights being made enforceable against the states. Even nationalist John Marshall, in the 1833 case Barron v. Baltimore, was forced to admit this when he said that the first ten “amendments contain no expression indicating an intention to apply them to the state governments. This court cannot so apply them.”
Incorporation
It was not until 1925, in the case of Gitlow vs New York, that the Supreme Court magically “found” the authority to apply the Bill of Rights against the states supposedly hidden away in the 14th Amendment- an amendment which, by the way, was never legally ratified.
This creation of law by the Court is problematic, as well as unhistorical. The 39th Congress, which proposed this amendment, never even discussed such an “incorporation,” and no such premise had been adhered to in the preceding years. But, by 1925 the “progressive” era was in full swing and the Supreme Court was well on its way toward inflicting a complete rewrite of the Constitution onto the states and the American people, thus diminishing the “separation of powers” between the states and the “general” government. This made-up doctrine has been the chief mechanism through which a “one-size-fits-all” form of government, with all rights and powers emanating from Washington, D.C., has arisen.
Many advocates of forced National Reciprocity point to the “Full Faith and Credit Clause” found in Article IV, Section 1 of the Constitution. Such application is likewise problematic because it deviates from the original intent of the clause, which was lifted directly from the Articles of Confederation without any change to its meaning. This clause, as ratified, simply ensured citizens in one state could own land or property in another with the full rights of a citizen of that state. It in no way implied that one state had to recognize the institutions or licensing of another state. Driver’s licenses are acceptable for passing through various states, but it is, like CCW licensing, by mutual assent of the states. In other words, there is no federal statute mandating that one state must honor another state’s driver’s licenses. That CCWs do not receive universal recognition is within the purview of powers the states reserved to themselves, which is the purpose of the Tenth Amendment.
The Danger of National Reciprocity
Assuming support of the bill, notwithstanding its lack of Constitutional authority, let’s address the practical implications and pitfalls.
Standards of issuance vary significantly from state to state. Some grant permits to any law-abiding citizen (these are referred to as “shall issue” jurisdictions), while others reserve the decision to local law enforcement agencies that determine if the applicant has a valid reason to justify being granted a permit (“may issue” jurisdiction). Some states require no permit at all. That each state was to determine social policies such as firearms permits is precisely the point of a federal system.
If this bill becomes law, California will likely take strong exception to an influx of armed visitors, as its residents repeatedly elect representatives who have made it one of the most restrictive states in the Union regarding firearms. What then? Typically, when there is an “inconsistency” of rule of law among the states, the federal judiciary jumps in and addresses the issue, thereby granting themselves and the other two branches of our “federal” government more power. It is an opportunity they rarely, if ever, pass up.
Seeking redress in the federal judiciary, the controversy will likely be heard by the United States Supreme Court, which in all probability will come up with a set of guidelines for permissible standards “Nationwide.”
It was through this very process that “incorporation” of the Bill of Rights has been used to nationalize education standards, to end prayer in school and force Nativity scenes off the lawns of county property, to force states to legalize abortion, strike down state laws concerning same-sex marriage, to create the busing debacle of the sixties and seventies, and on and on. Given this, can one reasonably expect the Court to uphold this law without imparting its own bit of legislation into the mix? If this happens, expect restrictions on magazine capacity, or the types of guns that may be carried, for instance. Expect a wide net of complex rules for carrying “nationwide” – a net likely to ensnare otherwise law-abiding citizens. And make no mistake: it will be the states with the most restrictive rules governing gun right that will serve as the model for these standards. Decades of precedent in other issues establish this.
In other words, national reciprocity is a Trojan Horse that would likely sneak in even more drastic federal regulation of firearms than we have already.
People also suggest it is permissible to enact this law because “our team” is in charge, yet this argument assumes we can trust the general government, despite a long history of violating our God-given, or Natural rights. The government welcomes this stance, as they frequently say, rights are subject to regulation. However, government restrictions leave them no opportunity to expand their power in this area.
Another surprise that may lie in the future is a change of guard, or a shift in the so-called “balance of power” in the courts wherein a faction is placed in charge that is strongly opposed to firearm freedoms. Expect a future administration, or Congress to decide, in the name of safety, to rescind the very permits they forced the states to accept. After all, if we foolishly grant them this authority to tell us what rights We the People have, it is fair to say they can “regulate” these rights, an argument we have heard before repeatedly.
This is the danger of allowing the Second Amendment to be considered a grant of rights, when its purpose was solely to prohibit the federal government from interfering with them at all.
Unconstitutional firearms laws that have gone unaddressed are tantamount to a constitutional convention, only no one invited the states. Moreover, as it stands right now you have fifty layers (each of the states) of protection for your right to bear arms. One we nationalize this issue the preservation of these rights will hang in the balance of power on the Supreme Court. One or two key changes to the makeup of that court, and, as in so many other instances, your gun rights are gone.
If one accepts the fallacious notion that the Second Amendment grants the general government the authority to pass this law, or accepts “incorporation” of the Bill of Rights against the states, then they accept federal dominion over the states and are suggesting that the people of the individual states do not in fact have a right to their own self-government. And if they accept that premise, then it is further proof that we have surrendered our revolutionary legacy as a federal “union” of sovereign republics.
Note: Carl Jones contributed to this article. He is a former active duty U.S. Marine, and a Certified Firearms Instructor. He is a contributing writer for the Abbeville Institute and a member of the Society of Independent Southern Historians.
Suzanne Sherman
August 14, 2017 at 11:39AM
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