March 21, 2012

Concealed Carry Reciprocity - What’s a Federalist to Do?

Passed by the House as H.R. 822 and pending in the Senate as S. 2188 “The National Concealed Carry Reciprocity Act”, is legislation which would require each state that issues pistol carry licenses to recognize those issued by other states. The debate over this issue has created a strange situation – committed leftists who believe that Congress can mandate that the several states serve broccoli in school lunches, and who have no problem with federal bureaucrats controlling intrastate toilet design are suddenly “state’s rights” purists. They now utter sound bite phrases such as “… you can’t make the states recognize gun rights if they don’t want to…” Allied with these folks are some real defenders of liberty, who believe that Federal compulsion of the states for any purpose is wrong.

Whether raised by cynical leftist or ardent libertarian, the Constitutional case against the legislation is weak. As an example, if a State should elect to allow slavery or indentured servitude, even the most ardent Federalist should admit that here is an instance where Federal intervention is constitutionally permitted. No State can violate rights guaranteed by the Bill of Rights or the 14th Amendment.

To the heart of the matter, then, is a Federal Concealed Carry Reciprocity law acceptable to upholders of the Founding Principles?

The answer, in a short phrase is a resounding “Yes.”

It is not an assault on state sovereignty.

The proposed law does not empower the Federal Government in any way. It merely requires that any state which issues a concealed carry license, concealed handgun license, whatever your state calls it – must honor a similar license issued by another state. No state is compelled to have a concealed handgun license, and any state that does not, will not be required to recognize one. The only state in this category is Illinois, anyway, so once again we have a “Chicago Exception”. To make this abundantly clear, barring court action forcing Illinois to actually recognize the Second Amendment, Illinois will continue to be someplace that does not have any form of concealed carry law, until the voters of Illinois and its Legislature determine otherwise.

This legislation is indeed constitutional.

The Constitution, Article 4, Section 1, “The Full Faith and Credit” clause, reads:

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.

States are constitutionally required to recognize magisterial acts (the mundane legal administrative activities) of other states, i.e. a New Mexico driver license is good in Massachusetts and Minnesota, Alabama and Alaska. A court judgment from Oklahoma can be enforced in New Hampshire. A County Clerk’s certificate from Texas is acceptable in Utah.

To dodge the “Full Faith and Credit” bullet, opponents argue that concealed carry licenses are not mundane administrative acts of a state. These folks contend that a carry permit is instead the conferral of a strange and special privilege upon certain rare and deserving people after long and arduous process and deliberation. They will be unlikely to admit it, but it may also be one of the hidden benefits of being friends with people in power, which is why Senator Dianne Feinstein had a permit to carry available to few average Californians.

The “special privilege” stance is not unknown; it is the way states view professional licenses. As an example, a person licensed in Texas to practice professional land surveying cannot do so in North Dakota, without receiving a North Dakota license. If they wish to practice in that state, they must apply, pay an application fee, prove again their character and fitness to the satisfaction of the State of North Dakota, and then must take and pass the North Dakota professional land surveyors exam. The same goes for engineers, doctors, dentists, architects, lawyers, geologists and a host of others. Professional licensing is not a magisterial act; being able to practice a profession is a privilege carefully controlled by each state in the interest of protecting the public health, safety and welfare. The state strictly limits practitioners to those who have acquired long years of education and experience, usually coupled with the passing of rigorous and lengthy qualification examinations.

It is upon the rock of the Second Amendment where the “privilege” argument in reference to “concealed carry of a firearm”, founders and sinks.

No person has a constitutional right to practice a profession; every citizen, on the other hand, as confirmed by the Supreme Court in the Heller and MacDonald cases, has the fundamental Second Amendment right to self-defense. How can a fundamental liberty stop at a state boundary line? How can the exercise of a right be dependent on the mere whim of a legislature or the personal judgment of administrative bureaucrat?

This proposal for Concealed Carry Reciprocity gives no power to the Federal Government. It merely reinforces the Constitutional truth that Concealed Carry licenses are mundane administrative acts of the various states, not grants of feudal privilege to the favored few or the politically well-connected. “Full Faith and Credit” obviously is applicable in this case; each license issuing state should honor the licenses of the other license-issuing states, exactly as they do drivers licenses.

Passage of the Concealed Carry Reciprocity Act will result in an expansion of liberty, an improvement of public safety and provide proof that states may not nullify those portions of the Constitution they deem inconvenient. I think it abundantly clear what a Federalist should do, and plain that the Founders would agree.

Copyright 2012

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