Gun possession near schools is one. At least, in Lopez this law was struck down because in part the reach of the commerce clause was not unlimited. Any constitutional argument for reciprocity that relies on the commerce clause needs to overcome the Lopez hurdle.
The remedy for Lopez was to apply the law only to guns “which have moved in interstate commerce” correct?
ETA: I’d be comfortable if I could only out-of-state CCW firearms that we’re similarly subjects of interstate commerce.
Cite?
As stated above, gun free school zones. But also parts of the Violence Against Women Act Both of which have more connections to the police powers exercised by the states, rather than the Commerce Clause.
I don’t know if this bill will become law – some supporters of the bill in this thread said that it is doubtful, and I have no reason to agree or disagree with that assessment. But I’m certain that if it were to become law, that there would be challenges to the constitutionality of it.
I say this mainly because of some of the absurd law enforcement situations that would arise: Trump has his fantasy play out and the NYPD starts doing stop and frisk again. They find two men with guns, one a New Yorker and one a Mainer. Neither one has a CCW permit, but the New Yorker goes to jail and the Mainer walks free simply because Maine’s CCW laws go with him wherever he goes. It is also interesting to think of the reverse side of Full Faith and Credit – Maine’s laws travel throughout the land under this law; New York’s laws stay at home. That isn’t providing all states with full faith and credit – that’s providing some states with full faith and credit, and other states with no faith and credit. Constitution fail!
I’ve started wondering whether Congress could exercise a Commerce Clause claim to establish a Federal standard for carrying guns… and I think it is far more realistic a claim to be an exercise of its constitutional powers than to pit state laws against each other, with the lowest common denominator always winning. In other words, its one thing to establish an uniform standard across states, it’s another thing to create a standard that plays to advantages of some state laws but not others.
This type of scenario can already play out with the patchwork of reciprocity that already exists. If two people who have CCW from their home state are visiting Minnesota, one from Illinois and the other from Oregon, and they are stopped by police and discovered with firearms, then the Oregonian is breaking the law and the person from Illinois isn’t. That’s how the law currently is. Many states with constitutional carry still offer a permit just to satisfy other state’s reciprocity rules.
In either example, it’s the responsibility of the gun carrier to be familiar with applicable law.
Yes, but that’s the case because each state is exercising its sovereignty in a matter that has, as far as I know, always been a matter of the exercise of the state police power.
In your case, Minnesota law applies equally to both men. And I assume that if a Minnesota person goes to Illinois, Illinois law will apply; and if the Minnesotan goes to Oregon, Oregon law will apply. I’m not arguing there is no patchwork, but the patchwork is consistent with how different states may wish to treat different criminal laws. It really isn’t any significantly different than, say, the patchwork of medical marijuana laws.
In the case I mentioned, Maine law applies to a one person in New York, and New York law applies to the other person in New York; on the basis that the Federal government pre-empted state law in the case of only one person. That’s what I would call absurd.
Like voting requirements, race-based segregation, prayer in schools, or banning abortion? The struggle between rights and the state’s police power is never-ending; and carry has at least as strong a claim to being a fundamental right immune to infringement by the police power as, e.g., abortion.
Of course there’s the precedent of Robertson v. Baldwin, in which the Supreme Court upheld an astonishingly illiberal law on the grounds that ancient practice had a standing against novel interpretations of the Bill of Rights. A ruling that as far as I know was never explicitly overturned, simply forgotten and ignored.
Fair point. This is also why I favor the 2nd amendment route. Civil rights are not subject to state by state recognition and i am of the belief that carry is a civil right.
If the Supreme Court decides that the Second Amendment, the Fourteenth Amendment, or something else in the Constitution prohibits states from regulating how firearms may be carried in public, then we have a situation analogous to the institutionalized and illegal racism that we’ve seen in many parts of our history.
But it is like you’re begging me to ask the question: do you see gun owners as being discriminated against in the same manner that African-Americans have been under policies of segregation, etc? Or maybe do you see gun owners being similarly oppressed as Christians who are not allowed to lead classes in prayer at public schools?
Or… are we just making another “I like guns, so whatever justification suits my purpose is the one I’m going with for now” line of argument?
I just quickly skimmed the first few paragraphs of the case, googled and found this case referenced in various gun rights websites. (And frankly, the websites I found tend to me a little of that Sovereign Citizen-y flavor). But I have failed to make heads or tails of why this is relevant to this discussion. Perhaps you could explain?
Can you expand on this? Why would the court ruling that the 2nd amendment ensures a right to carry be analogous to institutionalized racism? Do you mean only to the extent that those were examples offered by Lumpy?
Because the main goal is about carry in those places that do not allow carry. This isn’t about regulating who may carry, it’s about the absolute bar to carry. For example, my county in CA is a no issue county. They don’t issue to regular people at all. Destruction of the right under the guise of regulation is not actually regulation. The way I could see it going down is a person in one of these no issue places that has standing could bring suit. If the case makes it to SCOTUS and they accept, they could rule that the right to bear arms is included in the 2nd amendment right that was recognized in Heller and incorporated in McDonald. Simply that there exists this right, it’s subject to due process, and any such regulation cannot function to bar otherwise law abiding people from carrying should they so choose. They could even insert language like was done in Heller, that nothing should be taken to cast doubt on long standing restrictions that exist for prohibited persons, or on reasonable safety and training standards.
Then the 9 states that are no issue are brought into the fold and there would be much less need for reciprocity. But if reciprocity should pass, I would expect most of the no issue states to switch their tunes. Those states aren’t going to like visitors from other places being able to carry but the residents of the state not being able to. Either path, same end result.
I can certainly see the logic of that view, since it does say “keep AND BEAR arms…” But, the words “well regulated” is also in there, so that has to mean something too.
I would hazard to say that if the Second Amendment has anything to say about concealed carry – a point I’m not prepared to concede, but I recognize is debatable – then I think a reasonable interpretation is that maybe states can’t totally ban concealed carry, but they can put some regulations around it. Even with that charitable position, we’re a long way from the Second Amendment making state carry laws illegal, or even providing Congress a legislative remedy to an annoyance that those pesky states don’t all see things the same way.
We know what “well regulated” means in the context of the 2nd amendment. It’s thoroughly discussed in Heller. Even still, the prefatory clause does not limit or expand the scope of the operative clause. And the operative clause says the right to keep and bear - two separate things. This is the right to keep which was decided in Heller. The right to bear was left unaddressed directly, though in Heller the court said that the right to arms to be used in case of confrontation was most acute in the home. This means it exists elsewhere outside the home, but less acutely. Bear must mean something and for a state to destroy the right should not be constitutional in the context of the 2nd amendment. It’s a much preferable method to gain carry rights because it rests on firmer constitutional grounds. Commerce clause methods require a lot of stretching and squinting.
Yes, I’m responding to Lumpy’s bizarre reasoning that gun laws are like Jim Crow laws. I would never compare the two.
Are you talking about the issue of concealed carry reciprocity being important to pushing back on states/localities that have extremely restrictive carry laws?
I don’t agree at all, from any perspective. If your county doesn’t issue permits, you’re exactly the same level of screwed under this concealed reciprocity law as you are today. Because while, say, Mainers would then be allowed to carry in your county, you still wouldn’t. And it doesn’t sound like you, as a California resident, would be advantaged at all by this law, because it basically states that a person carries around with them the laws of their state of residence as they travel through the county.
What – you expect angels to sing in Manhattan and politicians there to suddenly believe that the solution to having so many guns on the street is to put more guns on the street? Maybe they will not only have deathbed conversion on gun laws, but also offer you a free pony, too? 
I have non resident ccw permits. If the law passes I will be able to legally carry in my no issue county.
Hmm… I may have been focusing on this part of the bill: “[who] is entitled to carry a concealed firearm in the State in which the person resides” as opposed to the previous provision. Upon further review, it looks like the quoted part is only applicable to constitutional carry states.
Still, it highlights the absurdity of the law in general. Just imagine if Alabama residents could get permission from California that allowed them to use marijuana as they pleased in their home state! Or Texans to get prescriptions from New York doctors for late term abortions! Oh, those would cause such uproars.
Will you be able to carry them in Times Square on New Years Eve?
I was simply pointing out that it’s incredibly hypocritical for the anti-gun left to suddenly rediscover the police power of the state (i.e., states rights) when the issue is something they disapprove of.
That portion of the law was aimed at those constitutional carry states. IIRC, most of those states continue to issue permits to facilitate their citizens traveling to other states where there already exist reciprocity agreements. I think only Vermont doesn’t issue permits? Not sure about that one.
To me, comparisons to other state by state laws aren’t great because the type of right isn’t the same. The more apt comparisons would be to other enumerated constitutional rights. I recognize that’s not the basis upon which the House bill resides.
Oh, suddenly I’m the “anti-gun left” because I don’t like your precious little bill.
I’ll point out that I have said several times that I agreed with the constitutional defects of the gun free school zones act.
I’m thinking my criticism of your post – “anything that gets me to the policy I want” – is pretty apt. The Tenth Amendment is a huge rhetorical talking point when Obama is in office… and then there’s crickets when there’s actually an issue that impacts the power of states.
That’s a decision that’s up to the state of NY (or possibly NYC if the state has delegated authority on the matter to them). Personally, I’m not familiar enough with NY’s carry laws to know if the handful of people that manage to obtain permits are allowed to carry in Times Square on New Years Eve or not.
Is this still true if the reciprocity bill becomes law?