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The Right to Pack Heat

November 15, 2011

I’ve debated for a couple days on whether to post on this.  What the heck, I have some time at lunch, and I have an opinion…

The House of Representatives today is likely voting on a bill to allow reciprocal concealed carry of firearms across state lines.  While the law is viewed as a wonderful strategic move (and yes, I’m a member of the NRA) for those who support a “robust” second ammendment reading, I’m not positive that it’s the best move, either strategically or tactically for a pro-gun movement.  Let me caveat that I’m not a lawyer and that I don’t have a totally clear understanding of all the current and future legal ramifications around this issue.  That said, I have been brushing up quite a bit.

Currently there’s little that any state or government entity can legally do to a person who is OPENLY carrying a gun in any state.  Yes, there are restrictions in certain federal areas, as well as other state restrictions.  For instance, most courts do not allow any carrying of weapons, and private property owners have quite a lot of say in the matter on their specific plots of land.  But if one wants to openly wear a gun on the streets of NY and pay the legal fees to defend himself, he would win.

Concealed carry is currently the “law of the land” in 49 of 50 states, and DC is somewhere in limbo on the “yep, have to do it,” side of things.  However, the laws in each state are vastly different.  For instance, the GOA notes this in a nice analysis of the current bill:

In Vermont, it has long been the case that law-abiding residents and non-residents alike could carry a concealed firearm, except for use in the commission of a crime.  The state, incidentally, also has the distinction of consistently being ranked one of the safest states in the country.

H.R. 822 does not grant reciprocity to residents of Vermont, as the bill requires the presence of a physical permit in order to qualify.  The state would be forced to move to a permit system for purposes of reciprocity, in effect being punished for having a system that is “too pro-gun.”

So there are obviously flaws in the system, and ones that affect Vermont, Arizona, and other states that enable concealed carry without a specific license or permit.  There are also a number of questions about whether people could get an out-of-state permit (Utah has a nice business around permitting, for instance) and carry in a state where laws are more restrictive in terms of getting a permit.  This opens up a can of worms on “national permitting” that I’m not sure anyone is really ready to entertain.  And that’s another point:

H.R. 822 relies on an abused and expansive view of the Constitution’s Commerce Clause.  The bill states that because firearms “have been shipped in interstate commerce,” the Congress in justified in passing this legislation.  That is not the “commerce” the Founder’s envisioned as they sought to remove barriers of interstate trade. 

The modern and broad interpretation of the Commerce Clause would, in the words of Supreme Court Justice Clarence Thomas (Gonzales v. Raich), confer on the federal government the power to “regulate virtually anything – [until] the federal Government is no longer one of limited and enumerated powers.”

When it all comes down to it, I’m more of a states-rights kind of guy.  If a state wants to limit a freedom, then people have a choice of whether to abide by that to some extent.  They can fix the law in the state, or they can move (yes, both simpler statements than the action would imply… work with me here).  But this is an enforced legislation on states that would rather enact different controls, and I think the paperwork and legal wrangling could end up affecting the second ammendment conversation the wrong way.

I remain an enthusiastic supporter of the people’s right to bear arms and defend themselves, and I support concealed carry as a movement across the nation.  I’d like to see it done in a way that enables the people of the state to make the decision, and this isn’t it.  And as a strategy, it’s not helpful to the cause.

Updated 11/16: Ed Morrissey at Hot Air seems to be taking a similar position.  He’s got a poll, so go vote.

8 Comments leave one →
  1. Inquisitor permalink
    November 16, 2011 10:21 am

    “shall not be infringed” does not give (or reserve to) the Federal Government OR the States the power to infringe; instead it specifically DENIES the Federal Government AND the States that power. “THE 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.” The RIGHT (and the power) to “keep and bear arms” is reserved to (belongs to) the people.
    This is not an issue of States’ rights but rather is an issue of the Federal Government fulfilling its obligations to prevent States from denying citizens’ US Constitutional rights!

    Below are the applicable sections of the US Constitution:

    The United States Constitution
    Article IV – The States
    Section 1 – Each State to Honor all others
    Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
    Article VI – Debts, Supremacy, Oaths
    · · ·
    This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
    The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
    [The Speaker of the House administers the oath of office as follows:
    “I, (name of Member), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”]
    The Amendments
    AMENDMENT II – Ratified 12/15/1791.
    A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
    AMENDMENT X – Ratified 12/15/1791.
    The 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.
    AMENDMENT XIV – Passed by Congress June 13, 1866. Ratified July 9, 1868.
    Section 1.
    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
    · · ·
    Section 5.
    The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

    • November 16, 2011 10:34 am

      …and open carry is pretty much the law of the land, excepting places where it is deemed to be a risk to society. This is much like the free speech exception of shouting “fire” in a crowded building, though I don’t think the two really equate.

      Concealed Carry is a separate issue, which has mostly been delegated to the states.

      • Inquisitor permalink
        November 16, 2011 10:42 am

        Under our current legal system, the Federal Government has declared that some people are disenfranchised from having rights under the 2nd Amendment. The power of the Federal Government to disinfranchise people from having 2nd Amendment rights needs to be challenged in SCOTUS; but, until the ability to exercise that power is overturned, that power remains. Once the ability of the Federal Government to disinfranchise people from exercising 2nd Amendment rights is established, then there must be identification of those actions that would cause a person to be disinfranchised. The Federal Government currently has such a set of criteria.

        The Federal Government has declared that some people are disenfranchised from having rights under the 2nd Amendment. The following classes of people are ineligible to possess, receive, ship, or transport firearms or ammunition:
        o Those convicted of crimes punishable by imprisonment for over one year, except state misdemeanors punishable by two years or less.
        o Fugitives from justice.
        o Unlawful users of certain depressant, narcotic, or stimulant drugs.
        o Those adjudicated as mental defectives or incompetents or those committed to any mental institution.
        o Illegal aliens.
        o Citizens who have renounced their citizenship.
        o Those persons dishonorably discharged from the Armed Forces.
        o Persons less than 18 years of age for the purchase of a shotgun or rifle.
        o Persons less than 21 years of age for the purchase of a firearm that is other than a shotgun or rifle.
        o Persons subject to a court order that restrains such persons from harassing, stalking, or threatening an intimate partner.
        o Persons convicted in any court of a misdemeanor crime of domestic violence.
        Persons under indictment for a crime punishable by imprisonment for more than one year are ineligible to receive, transport, or ship any firearm or ammunition. Under limited conditions, relief from disability may be obtained from the U.S. Secretary of the Treasury, or through a pardon, expungement, restoration of rights, or setting aside of a conviction.
        Those criteria must be reviewed, by the voters, Congress, and SCOTUS to insure that they are the absolute minimum criteria required to protect the life, liberty, safety, and welfare of the people and if any or all of those criteria are even applicable. If, as now, those criteria are too broad or even not relevant, then we need to work to change or eliminate those criteria through legislation and/or the courts.

        Once there is a set of criteria, there must be some means of identifying those people that, by their own actions, have violated those criteria and therefore have been disinfranchised from exercising 2nd Amendment rights and/or conversely identifying those people that have NOT been disinfranchised from exercising 2nd Amendment rights. A system, such as Vermont’s, whereby each and every time a person’s ability to exercise 2nd Amendment rights is challenged, an independent verification must be done, is extremely cumbersome. Under such a system, people will be treated as if they have been disinfranchised until the authorities get around to finding out otherwise, since “the danger” has already been neutralized.

        So, who is going to certify that individuals are NOT disinfranchised from exercising 2nd Amendment rights? The Federal Government or State governments? Right now, the States have assumed that responsibility. However, the States in assuming that power have also assumed that they have the power to add even more criteria and/or restrictions to the people’s 2nd Amendment rights. Some States have further assumed that power extends to denying anyone the “right to keep and bear arms” (known as “may issue” or “discretionary issue”) for any reason. Those State criteria and/or restrictions must be reviewed, by the voters, State Legislatures, Congress, and SCOTUS to insure that they are the absolute minimum criteria required to protect the life, liberty, safety, and welfare of the people. A prima facia assumption in that review should be: “Are any criteria and/or regulations beyond those at the Federal Government level necessary or even permissible?” If, as now, those criteria and/or restrictions are too broad or even not relevant, then we need to work to change or eliminate those criteria and/or restrictions through legislation and/or the courts.

        Once a person has been certified as NOT being disinfranchised from rights under the 2nd Amendment, there needs to be a way for that person to prove they are NOT disinfranchised. A concealed weapons permit issued by a State is currently recognized as acceptable proof of that person’s ability to exercise their rights under the 2nd Amendment. However, some States have assumed, in addition to their power to regulate the peoples’ rights under the 2nd Amendment, that they also have the power (and right) to NOT recognize concealed weapons permits issued by other States. Such action is prohibited under the US Constitution and must be eliminated through the courts and/or legislation.
        In summary, until all regulation and/or restriction of 2nd Amendment rights are eliminated, there is a need for the issuance of concealed weapons permits and interstate recognition of those permits.

        Our ultimate goal remains, however, to reduce those regulations and/or restrictions to the absolute minimum or eliminate them. Only when all regulations and/or restrictions applied to 2nd Amendment rights are eliminated, can we get to Constitutional Carry.

    • Inquisitor permalink
      November 16, 2011 10:37 am

      CORRECTION: The first sentence in this post should have said:
      “shall not be infringed” does not give (or reserve to) the Federal Government OR the States the power to infringe; instead “the right of the people” specifically DENIES the Federal Government AND the States that power.

  2. Inquisitor permalink
    November 16, 2011 9:59 am

    Let me get this right; today a person from Vermont CAN NOT carry in other States because they do not have a “permit”. If H.R. 822 passes, a person from Vermont CAN NOT carry in other States because they do not have a “permit”. Therefore H.R. 822 is destroying Vermont’s constitutional carry provision. ?????

    • November 16, 2011 10:29 am

      Permit to carry concealed arms is a state decision, and people have to abide by the rules of that state. If another state allows an out-of-state permit to be valid in their state, then that’s their call. Since I don’t live in Vermont, I can’t say if there’s any reciprocity, but I’d guess not. AZ still does have permits, but does not require them for normal concealed carry, and AZ permits are still valid in some other states. Consult a lawyer before you put your Glock in your holster.

  3. November 16, 2011 2:14 am

    At least you’re consistent, Jim. I get such a kick out of your fellow gun-rights guys who support the federal government interfering in States’ rights when it’s about guns.

    Of course, that’s where our agreement ends. The whole “rights” business is bullshit in my opinion. You have as much right to own a gun as you do to own a TV, and that’s simply because you live in a free country, well sort of.

    • November 16, 2011 8:32 am

      TV’s aren’t a right in the Constitution, Arms are. You can aruge the “militia” language, but the courts have sided with the individual right for the entire history of the Constitution.

      In general, I disagree with any federal effort to infringe on the states’ right to set legislation, including aborition. I’m sure I’m inconsistent, though if you point that out, I’ll probably have to reconsider my opinion in that case.

      But with all that, if we want to make it all open-carry (which is Federal pervue), let’s go for it. I can accessorize.

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