National Reciprocity and the Commerce ClauseSteven Lieberman
HR 38, National Reciprocity and the Commerce Clause
One of President Trump’s campaign promises was to push through national reciprocity. The simple idea that a CCW should effectively have the same privileges, immunities and full faith and credit as a drivers license would when the owner of the permit travels between the various states.
For those that travel regularly, or even periodically this is not only beneficial, but frankly… well… expected.
If I have possession of virtually any document from the State of California, be it a drivers license a court decision, a marriage license or a tax document the governments of the various other states in the union are mandated to recognize the validity of that document.
Unless of course we are talking about a CCW. Then all bets are off.
Now gun rights advocates clearly have a concern when it comes to interstate travel, but frankly there are greater concerns when it comes to the Second Amendment.
The gem in a National Reciprocity bill is the issuance of non-resident CCWs. Specifically when it comes to our brothers and sisters that live in the certain totalitarian regimes in California, and New England.
Enter H.R. 38 introduced by Congressman Richard Hudson (R-SC)
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H.R. 38 is an interesting bit of legislation.
The bill specifies individuals that have a CCW in one state MUST be allowed to carry concealed in every other state (subject to local laws and restrictions of course). Actually, this last sentence is not entirely accurate. H.R. 38 explains that a state that has legal provisions for the issuance of a CCW must recognize the validity of the CCW that the carrier has from an other state.
So it would be wrong to call this a “National CCW”… since it merely regulates behavior between the States.
Basically, if you have a CCW in California, then Nevada must recognize it.
But what if you don’t have a CCW in California?
What if you live within the Peoples Republic of Los Angeles and your Sheriff does not feel that you are politically connected enough to have a permit to carry concealed? But, you do have a non-resident CCW from Arizona?
Well… H.R. 38 would appear to be your golden ticket.
H.R. 38 has four references to non-residents:
▪ In the preamble, it give its purpose as: “to provide a means by which nonresidents of a State whose residents may carry concealed firearms may also do so in the State.”
▪ In § (a), where it states that reciprocity applies to persons who reside in Constitutional Carry states without licenses.
▪ In § (a)(1), the bill says that it applies to States that have a concealed carry licensing regime for their own residents;
▪ In § (a)(2), stating that the bill applies to States that do not prohibit the carriage of concealed firearms by state residents for lawful purposes.
That is it.
Beyond that, there is no limiting language suggesting that the bill be narrowly interpreted to only be applicable to residents that have CCW’s from their home states.
Congressman Hudson has stated that it is the intent of the bill to allow residents of a states that have restrictive CCW issuance policies, to be given a mechanism to do an “end run” around that restrictive mechanism.
There is one little thing that gives me pause though…
Not a “deal breaker”, and frankly something that is easily correctable. But something that does need to be addressed: Congress’s authority to enact this statute.
H.R. 38 states quite clearly that the power to enact this legislation comes from the Commerce Clause of the Constitution.
Congress has the power to regulate commerce between the states. This power began to be recognized as having some serious regulatory gravitas during the New Deal era. Much of Roosevelt’s regulatory scheming used the commerce clause as justification for federal empowerment. Often the intellectual gymnastics necessary to follow the logic of federal regulatory power were herculean. Farmers that had one or two cows found themselves under federal regulatory guidelines when it came to milk production. Milk that they were producing not for customers, but for their own breakfast tables. The theory was that since they were milking their own cows, they would not go to the store and buy milk that had been potentially transported via interstate commerce. Thus, their activity “effected” interstate commerce.
Even civil rights cases have been justified under the commerce clause. A hotel in Georgia that refused to rent rooms to African Americans was held to be in violation of Federal Law. They were subjected to Federal Law because a hypothetical African American traveling from Florida through Georgia might get tired and need to rent a room. Since he could not rent a room at this particular hotel it “effected” interstate commerce, inasmuch as said traveler might decide to to go on the trip in the first place.
Over the last few years, the court has begun to back away from the Commerce Clause for jurisdictional justification of federal regulation.
This would put a challenge to H.R. 38 in somewhat of a precarious position.
Would SCOTUS be more antagonistic to State laws that prohibit the exercise of the Second Amendment or another expansion of the Commerce Clause?
I’m not particularly thrilled about the intellectual justification of Interstate Commerce either.
§ 926D. (a)(b) states: …… may possess or carry a concealed handgun (other than a machine gun or destructive device) that has been shipped or transported in interstate or foreign commerce…..
So… this would seem to suggest that once a firearm travels between state lines, it is “infected” forever with potential Federal Regulatory control. David Engdahl of Seattle University has called this the “‘herpes’ theory” of interstate commerce, whereby “some lingering federal power infects whatever has passed through the federal dominion.” D. Engdahl, The Necessary and Proper Clause as an Intrinsic Restraint on Federal Lawmaking Power, 22 Harv. J.L. & Pub. Pol’y 107, 120 (1998).
It would be far better (in my opinion, and as I mentioned at the beginning of this blog), if this bill… which I have to tell you, I like… were amended to find its authority based on the Full Faith and Credit, or Privileges and Immunities Clause of the Constitution.
This would provide a good solid intellectual justification for Federal jurisdiction, and set this up for a less King Solomon like decision by the Supremes. They would not have to rule in favor of an expansive Commerce Clause justification to support the Second Amendment, nor would they have to sacrifice the Second to protect us from Federal overreach later on down the road based on a reinvigorated Commerce Clause.
For now H.R. 38 patiently waits in the House. If it passes, it will be quite some time before it becomes law.
Regardless… H.R. 38 may very well be the proverbial light at the end of a long dark tunnel for the residents of places like Los Angeles, San Francisco and New York.