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July 1, 2015

Could the Obergefell Decision Mean National Concealed Carry?

A look at what the SCOTUS same-sex marriage decision means for gun rights.

The Supreme Court’s Obergefell v. Hodges decision forcing states to recognize same-sex marriage has sparked a debate about whether the decision also provides legal precedent requiring states to recognize concealed carry permits. Let’s weigh that argument.

Bob Owens at Bearing Arms fired first, explaining, “The Court used Section 1 of the Fourteenth Amendment to justify their argument. … By using the Constitution in such a manner, the Court argues that the Due Process Clause extends ‘certain personal choices central to individual dignity and autonomy’ accepted in a majority of states across the state lines of a handful of states that still banned the practice.”

Comparing Obergefell to concealed carry reciprocity, Owens points out, “The vast majority of states are ‘shall issue’ on the matter of issuing concealed carry permits, and enjoy reciprocity with a large number of other states.” And concealed carry is certainly “accepted in a majority of states across the state lines of … states that still [ban] the practice.” Before Obergefell, 14 states did not recognize his concealed carry permit. He argues the ruling means they must.

It’s certainly interesting that attorney Marc Greendorfer’s amicus brief against same-sex marriage filed for the Obergefell case invokes the Second Amendment. Greendorfer wrote, “One day, this Court will have to explain how sweeping restrictions on every aspect of firearms ownership and use can be upheld yet traditional and long-standing regulations on marriage cannot be tolerated in any form or in any jurisdiction. … [After Heller], a number of state and local governments imposed draconian restrictions on firearms, claiming that the restrictions were reasonable and common sense, and did not infringe the core right protected by the Second Amendment.”

It’s true that the Supreme Court did not limit its interpretation of Due Process to same-sex marriage. But we also don’t hold out much hope that Owens’ interpretation will, er, carry the day.

Three legal experts weighed in on the subject for Independent Journal Review, and their take is more sobering.

Ilya Somin, professor of law at George Mason University, offered some optimism. “I think this argument may be plausible, but it is far from an open and shut case,” he said. “[T]he Supreme Court has not ruled that having a concealed carry permit is a ‘personal choice central to individual dignity and autonomy.’ It hasn’t even (so far) ruled that the right to conceal-carry … is protected by the Second Amendment. … [I]n the case of concealed carry permits, the Court has never ruled that states are required to issue them to their own citizens. I think such a ruling might well be required by the Second Amendment. But it hasn’t happened yet.”

But Robert A. Levy, Senior Fellow in Constitutional Studies at Cato Institute, put a damper on even such guarded optimism: “No. The Obergefell Court applied the Due Process Clause to ‘certain personal choices central to personal dignity and autonomy.’ I doubt that the Court would interpret that phrase to encompass a federal constitutional right to concealed carry. Nor would the Court rule that any right enforceable under the laws of, say, 36 states must therefore be extended to the remaining states.”

And Trevor Burrus, Research Fellow at Cato, warned, “If proponents want to bring a case on concealed carry and cite the Obergefell opinion, they are free to… [But] gay marriage [doesn’t] automatically convey a right to concealed carry in 50 states. Moreover, by using these spurious arguments, advocates … harm the overall movement for gun rights. Bad arguments can create bad precedents that could impair the expansion of the right to self defense.”

Finally, economist John Lott, who has written extensively on guns, wrote our publisher Mark Alexander to give his opinion: “I don’t think that the decision will make any difference for gun rights, as the four liberal justices who voted for it don’t believe that there is a right to self-defense or a right to own guns, let alone a right to be able to carry a concealed handgun. You might get one vote for a pro-gun position using that argument, but it would only be Kennedy.”

In the world of SCOTUS and the Left, you must be careful what you wish for. We don’t exactly trust our “Supremes” to read the Second Amendment any better than they do the Tenth and Fourteenth. But that isn’t to say national concealed carry reciprocity isn’t worth aiming for.

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