The Commerce Clause of the Constitution and Concealed Carry Reciprocity

[ISCS Yoda]

I admit that I hang around on line with some very pointy headed, as in brilliant, conservative attorneys who all share an interest in the RKBA. One of them posted this website today:

Trump Supports Concealed Carry Reciprocity

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As far as I can tell, the comments submitted below this article are all irrelevant or legal malarkey. The author's point, which I tend to agree with, is that the Commerce Clause has been used and abused to solve every kind of issue in America for half a century. Because it has been so widely bent out of shape by the Supreme Court and a host of lower courts it could actually be the perfect vehicle to create a legal basis for a national reciprocity law for concealed handgun permits.

Simply put, there are two ways to look at it:

1. Guns are shipped across state lines, whether manufactured in America or imported, that puts them into interstate commerce - ipso facto, any state license with respect to firearms affects interstate commerce so national reciprocity is enforceable under the Commerce Clause.

If you think that's wacky you should really read the cases that exist for wacky applications of the Commerce Clause.

2. Concealed carry holders cross state lines with these permits in their possession; therefore, forbidding their use from state to state has a negative impact on interstate commerce because these people will have their ability to travel from state to state restricted by virtue of their fear of being illegal with a permit and an associated weapon in their possession in a contiguous state (never mind flying; that's another issue).

If you think that's wacky you should really read the cases that exist for wacky applications of the Commerce Clause.

This is going to get very interesting!!!

 

[loonybin]

Just a small flaw in that logic: other wacky applications of the Commerce Clause (read: unconstitutional) do not justify another wacky application of the Commerce Clause. If anything, perhaps the other wacky applications should be reversed...

The most solid analogy is that CCW reciprocity should be enforced the same as driver licenses.

 

[hostler]

I don't know how I feel about this. Ultimately I want to be able to possess a firearm in every state the same as I do my own, BUT, I'm also a big fan of states rights.
The commerce clause would be good because it would make it impossible for any individual state to just change their mind about reciprocity. States have already shown that they will do that at the drop of a hat, look at the changes that take place year to year. The "commerce clause" would be a lot harder to change willy-nilly because a change would have to effect all states.

 

[texmex]

How about this part of the U. S. Constitution?

Article IV, Section 1:
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State

If you can drive in New York with a Texas driver's license, seems like you should be able to carry in New York with a Texas CHL.

Probably just wishful thinking on my part.

If at first you don't secede, try, try again!

 

[hostler]

How about this part of the U. S. Constitution?

Article IV, Section 1:
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State

If you can drive in New York with a Texas driver's license, seems like you should be able to carry in New York with a Texas CHL.

Probably just wishful thinking on my part.

If at first you don't secede, try, try again!

The "full faith and credit section applies more for legal proceedings such as extradition I believe.
Each state does have a specific reciprocity statute that covers driving privilege. Without those specific statutes it would be illegal to drive in another state.

 

[dougb1946]

You can buy a car and operate it on your own property with no license or training or insurance. To take the car into the public world, you are required to take a test to prove you know the laws, and a test to prove you can drive it down the street without killing someone in order to get the license. And then to use it , you are required to have insurance.

 

[OKFC05]

This has been beat to death. Using driving is a horrible example, for several reasons, including that NOTHING about it relies on US Federal laws. The states worked it out among themselves. While the Commerce Clause has been stretched beyond all reason, I don't know if our own conservative Justices would support its use in this case--and it WOULD be challenged. NY, NJ, CA NI, OR WA come to mind as states that would fight to their last taxpayer dollar to challenge the Federal takeover of their power to regulate firearms. Heck, they don't even follow US drug and immigration laws now.
NYC, NJ are two places that don't follow the 1986 FOPA, what makes you think they would allow YOU to carry there?

 

[hostler]

The simplest thing would be for everyone to follow the 2A but even on gun forums we can't agree on how to follow that.

 

[Alk8944]

The "full faith and credit section applies more for legal proceedings such as extradition I believe.
Each state does have a specific reciprocity statute that covers driving privilege. Without those specific statutes it would be illegal to drive in another state.

hostler,

You are absolutely incorrect in your interpretation of the "Full Faith and Credit" clause of the Constitution. The ".. public Acts, Records, and judicial Proceedings of every other State.." are three separate items, exactly as they read, not all related to judicial proceedings. Among (many) other things protected by the "Full Faith and Credit" clause are marriages and divorces (Records and Judicial Proceedings!). This is why when you are married in one state you are legally married in all, and if you are divorced it applies to all states and not just where the proceedings occurred. Driver License reciprocity is specifically protected by this clause, not individual reciprocity agreements. Why? Because free movement between states does directly affect Interstate Commerce, not only on an individual basis but it allows CDL Licensees to operate commercial vehicles hauling goods to cross state lines.

Extraditions have nothing to do with this clause! If a fugitive is arrested in another state one of two things must occur. Either the fugitive must waive extradition and voluntarily submit, or a Governor's Warrant must be issued in the state from which he is fugitive, and the warrant must be recognized and accepted by the governor of the state in which the fugitive is held in custody. You are thinking of extradition treaties between the United States and other countries!

And let me define the phrase "I believe" for you just in case you do not understand. In short it means "I believe, but I really don't know." It means you are expressing an un-substantiated opinion.

 

[Faulkner]

The conflict to defend states rights was, unfortunately, lost in 1865.

 

[hostler]

hostler,

You are absolutely incorrect in your interpretation of the "Full Faith and Credit" clause of the Constitution. The ".. public Acts, Records, and judicial Proceedings of every other State.." are three separate items, exactly as they read, not all related to judicial proceedings. Among (many) other things protected by the "Full Faith and Credit" clause are marriages and divorces (Records and Judicial Proceedings!). This is why when you are married in one state you are legally married in all, and if you are divorced it applies to all states and not just where the proceedings occurred. Driver License reciprocity is specifically protected by this clause, not individual reciprocity agreements. Why? Because free movement between states does directly affect Interstate Commerce, not only on an individual basis but it allows CDL Licensees to operate commercial vehicles hauling goods to cross state lines.

Extraditions have nothing to do with this clause! If a fugitive is arrested in another state one of two things must occur. Either the fugitive must waive extradition and voluntarily submit, or a Governor's Warrant must be issued in the state from which he is fugitive, and the warrant must be recognized and accepted by the governor of the state in which the fugitive is held in custody. You are thinking of extradition treaties between the United States and other countries!

And let me define the phrase "I believe" for you just in case you do not understand. In short it means "I believe, but I really don't know." It means you are expressing an un-substantiated opinion.

OK, sorry...

 

[BB57]

Some folks seem to have a rather extreme view about the issue and see it as a threat to states rights, or see it as a move towards a "federal" permit.

It's neither.

In essence what the concealed carry bill currently in the House would do is allow each and every state to:

1) decide if it wants concealed carry;
2) decide what requirements must be met for concealed carry;
3) decide what other limits may apply, such as 10 round magazines, no hollow points, etc; and
4) apply all theses things to all of it's residents.

You know, just like states can do now.

What this bill would do is to allow a *resident* concealed carry permit holder in one state (who meets all of that state's permit requirements and firearm/bullet type restrictions) to conceal carry his or her handgun in any other state that allows concealed carry for it's own residents.

It effectively does two things:

1) It eliminates the arbitrary application of reciprocity between states; and

2) Allows a concealed carry holder to carry a handgun that is legal to carry in his or her state in any state that allows concealed carry (by defining "handgun" of the purpose of this law as including any magazine size and any bullet type).

I'm not seeing a down side here...

 

[southcoast]

I would expect most lawyers to know, and this may surprise most modern day gun rights activists, but it was a gun case that put a sudden halt on the rapidly expanding reach of the Commerce Clause. See

United States v. Alfonso D. Lopez, Jr., 514 U.S. 549 (1995) was the first United States Supreme Court case since the New Deal to set limits to Congress' power under the Commerce Clause of the United States Constitution.

It's worth a read, and after reading you will see why expecting a gun case to now expand the reach of the Commerce Clause is as likely as finding a unicorn riding leprechaun who delivers you a pot of gold.

 

[Fastbolt]

...

The most solid analogy is that CCW reciprocity should be enforced the same as driver licenses.

Which is a states issue, addressed & resolved by the states (eventually, and with some different attempts), and not the business of the feds.

 

[adwjc]

I would expect most lawyers to know, and this may surprise most modern day gun rights activists, but it was a gun case that put a sudden halt on the rapidly expanding reach of the Commerce Clause. See

United States v. Alfonso D. Lopez, Jr., 514 U.S. 549 (1995) was the first United States Supreme Court case since the New Deal to set limits to Congress' power under the Commerce Clause of the United States Constitution.

It's worth a read, and after reading you will see why expecting a gun case to now expand the reach of the Commerce Clause is as likely as finding a unicorn riding leprechaun who delivers you a pot of gold.

Southcoast,

looking at a portion of the decision in Wikipedia,

"The government's principal argument was that the possession of a firearm in an educational environment would most likely lead to a violent crime, which in turn would affect the general economic condition in two ways.

First, because violent crime causes harm and creates expense, it raises insurance costs, which are spread throughout the economy;

and second, by limiting the willingness to travel in the area perceived to be unsafe.

The government also argued that the presence of firearms within a school would be seen as dangerous, resulting in students' being scared and disturbed; this would, in turn, inhibit learning; and this, in turn, would lead to a weaker national economy since education is clearly a crucial element of the nation's financial health.

The Court, however, found these arguments to create a dangerous slippery slope: what would prevent the federal government from then regulating any activity that might lead to violent crime, regardless of its connection to interstate commerce, because it imposed social costs? What would prevent Congress from regulating any activity that might bear on a person's economic productivity?[8]

Supreme Court decision[edit]

In a 5–4 decision, the Supreme Court affirmed the decision of the Court of Appeals. It held that while Congress had broad lawmaking authority under the Commerce Clause, the power was limited, and did not extend so far from "commerce" as to authorize the regulation of the carrying of handguns, especially when there was no evidence that carrying them affected the economy on a massive scale.[9]

Chief Justice Rehnquist, delivering the opinion of the Court, identified the three broad categories of activity that Congress could regulate under the Commerce Clause:

The channels of interstate commerce

The instrumentalities of interstate commerce, or persons or things in interstate commerce[10]

Activities that substantially affect or substantially relate to interstate commerce[11]

The Court summarily dismissed any consideration of the first two categories and concluded that the resolution of the case depended only on consideration of the third category—regulation of activities that substantially affect interstate commerce. The Court essentially concluded that in no way was the carrying of handguns a commercial activity or even related to any sort of economic enterprise, even under the most extravagant definitions.[12]

The opinion rejected the government's argument that because crime negatively impacted education, Congress might have reasonably concluded that crime in schools substantially affects commerce.

The Court reasoned that if Congress could regulate something so far removed from commerce, then it could regulate anything, and since the Constitution clearly creates Congress as a body with enumerated powers, this could not be so. Rehnquist concluded:

“ To uphold the Government's contentions here, we have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local. This we are unwilling to do. ”

The Court specifically looked to four factors in determining whether legislation represents a valid effort to use the Commerce Clause power to regulate activities that substantially affect interstate commerce:

1.Whether the activity was non-economic as opposed to economic activity; previous cases involved economic activity

2.Jurisdictional element: whether the gun had moved in interstate commerce

3.Whether there had been congressional findings of an economic link between guns and education

4.How attenuated the link was between the regulated activity and interstate commerce

Although the ruling stopped a decades-long trend of inclusiveness under the commerce clause, it did not reverse any past ruling about the meaning of the clause. Later, Rehnquist stated that the Court had the duty to prevent the legislative branch from usurping state powers over policing the conduct of their citizens. He admitted that the Supreme Court had upheld certain governmental steps towards taking power away from the states, and cited Lopez as a decision that finally stepped in to check the government's authority by defining clearly between state and federal powers.[13]"

This decision today would be considered an activist ruling or legislating from the bench - so how has the pendulum swung since 1995?

 

[southcoast]

On the contrary, if one were to look at cases cited as "activist" given the magnitude and impact of this case at the time it is not listed as one by the legal scholars then and now.

Even assuming for the sake of argument one were to characterize this as an "activist decision" the current Supreme Court 4-4 split on fed v/s state's rights would maintain the status quo. When the current nominee is sworn in the numbers would again favor a 5-4 split leaning towards the same State's rights logic outlined in Lopez, which would keep concealed laws regulated by the individual states rather than the Fed govt.
Especially when the case speaks directly to the carrying of handguns, "It held that while Congress had broad lawmaking authority under the Commerce Clause, the power was limited, and did not extend so far from "commerce" as to authorize the regulation of the carrying of handguns, especially when there was no evidence that carrying them affected the economy on a massive scale."

 

[deadin]

In essence what the concealed carry bill currently in the House would do is allow each and every state to:

1) decide if it wants concealed carry;
2) decide what requirements must be met for concealed carry;
3) decide what other limits may apply, such as 10 round magazines, no hollow points, etc; and
4) apply all theses things to all of it's residents.

Were I a State and the Feds tried to cram this down my throat and I really really didn't want non-residents CCing in my State, I might just consider removing CCing for everybody.

Or I would make the requirements (#'s 2 & 3) so onerous and expensive that most people wouldn't be interested.

 

[BB57]

Were I a State and the Feds tried to cram this down my throat and I really really didn't want non-residents CCing in my State, I might just consider removing CCing for everybody.

Or I would make the requirements (#'s 2 & 3) so onerous and expensive that most people wouldn't be interested.

That's not likely to happen in states that already allow widespread concealed carry.

First, allowing non residents to carry in your state just isn't a big deal. Reciprocity is already widespread - just a little too arbitrary. We are not talking large numbers of people with concealed carry permits running around in the state. We are basically talking about a minor extension of the pass through provision that's ben around since the FOPA was passed in 1986.

Second, we are also not talking about non resident permits - like the UT non resident permit - being used to allow the same concealed carry rights as a resident permit. In fact, this law would remove the benefit of getting non resident permits, and would arguably decrease the number of "non resident" permits in use.

Consider for example, that someone moving to NC from MD can get a VA non resident permit quicker, cheaper and easier (no live fire training) than they can get an NC resident permit, and then use it in NC until that permit expires in 5 years. For that matter they can renew the VA non resident permit and NEVER get an NC permit (provided NC never pulls the reciprocity plug).

This non resident permit mis-use should be an issue that alarms these same states you're talking about - but it hasn't become an issue. This law won't create that concern either, but rather goes a long way toward incentivizing residents to get resident permits - an action states will support.

Finally, the political back lash in the state - where it matters to state representatives and senators - would be enormous if a state with wide spread concealed carry decided to end it. So that's not going to happen.

It might be a problem in states like MD, but let's be honest, it's almost impossible to get a permit in MD anyway, so the difference between the current situation and your catastrophized situation is for all practical purposes none.

 

[deadin]

OK, I have some questions...

Given the following:

In essence what the concealed carry bill currently in the House would do is allow each and every state to:

1) decide if it wants concealed carry;
2) decide what requirements must be met for concealed carry;
3) decide what other limits may apply, such as 10 round magazines, no hollow points, etc; and
4) apply all theses things to all of it's residents.

1) If a State opts out of CC, is it just removed from the equation and nobody (including residents) can carry?

2) Will all States have to meet the requirements of the strictest State? (Example: I am in Washington State, we do not have any classes or shooting requirements. Will WA have to require classes and testing? If it doesn't, what then? Do we expect the States that do require classes, etc. to accept our permit? ( I don't think this will fly.) One solution would be to go to a National CC permit with all issuance done by the Feds. (Good luck with that).

3) Will these requirement be universal or will each State have its own and non-residents will have to be aware of them if they decide to carry in a given State. (Isn't this pretty much the way it is now with whatever reciprocity currently exists ?)_

4) Redundant if all States are the same.....

 

[Flattop5]

Nearly every law that came down the pike under the miserable, often-illegal Roosevelt cabal (in this case, the left-wing extremist justice, and Roosevelt appointee, Felix Frankfurter was point man for the Commerce Clause) is unconstitutional and should be overturned. Maybe new justice Neil Gorsuch can help with that. (Many of FDR's actions were illegal, yet he was never impeached).

Wise judges ignore anything The Hotdog said or wrote -- he co-founded the ACLU, for God's sake. What a horrible time for America: the FDR era.




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