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Dave Kopel makes the case for the 14th Amendment’s support of a national concealed carry reciprocity law . . . Congress should use constitutional power to force states to honor gun rights

A few weeks ago, the House of Representatives passed the Concealed Carry Reciprocity Act of 2017 with bipartisan support. The Act would allow persons eligible to carry a concealed firearm in their home state to carry in other states as well. Opponents contend that the Act violates federalism. Actually, the Act is well within congressional powers under the Fourteenth Amendment. That Amendment was enacted specifically to give Congress the power to act against state infringements of national civil rights.

As we noted earlier, the 14th Amendment stance seems to be the primary basis of support on which the pro-gun side is making the argument for national reciprocity’s constitutionality.

Section one of the 14th Amendment forbids states to violate civil rights. Section five of the Amendment grants Congress “the power to enforce, by appropriate legislation, the provisions of this article.” Enacted during Reconstruction, the Fourteenth Amendment was a remedy to ex-Confederate states denying freedmen the right to arms and other civil rights.

One of the civil rights protected by Concealed Carry Reciprocity is the right to interstate travel. It is “a virtually unconditional personal right, guaranteed by the Constitution to us all,” the Supreme Court said in Sáenz v. Roe (1999). The Sáenz court explained that travelers have the “right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second state.”

Oh, and there’s another civil right that the 14th Amendment happens to protect, too.

Another national civil right that is protected by the Reciprocity Act is the Second Amendment right to bear arms. As the Supreme Court wrote in D.C. v. Heller (2008), “the inherent right of self-defense has been central to the Second Amendment right.” Thus, the Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.”

Like other constitutional rights, the right protected by the Second Amendment is not limited to one’s state of residence. The Fourteenth Amendment made the Second Amendment (and most of the rest of the Bill of Rights) directly enforceable against the states. Coloradans must be free to practice their religion in Utah. Ohioans’ free speech must be protected in Michigan. North Dakotans must be free from unreasonable searches in South Dakota. And Idahoans’ right to bear arms must be recognized in Oregon.

But Kopel points out that there’s one more slick feature of the 14th Amendment underpinnings of national reciprocity. It puts opponents in a damned-if-you-do, damned-if-you-don’t bind since the Gun Control Act of 1968 was based on a foundation of regulating interstate commerce.

Even if a court were to hold that the Reciprocity Act is not a proper enforcement of the Second Amendment, the Act would still be valid as enforcement of the right to interstate travel.

Moreover, the Reciprocity Act is also supported by the same jurisdictional predicate as many other federal gun control laws: namely, that the firearm in question was once sold or transported in interstate commerce. This is not really consistent with the original meaning of the Interstate Commerce Clause. But if the Reciprocity Act were held to exceed Congress’s commerce powers, then much of the federal Gun Control Act would also be unconstitutional—such as laws that ban a person today from possessing a gun just because the gun was sold in interstate commerce four decades ago.

So even the most 2A-squeamish justices who might someday hear a case challenging a national reciprocity law would have to perform some intricate logical contortions in order to hold the law unconstitutional without also invalidating the Gun Control Act. Not that that’s ever stopped them before.

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24 COMMENTS

    • Respectfully, I think you misunderstood the point (Kopel’s writing is partially to blame… I greatly admire the guy, but his writing is often “inside baseball”).

      He is saying that, sure, he thinks that GCA is unconstitutional based on any semblance of a plain-faced reading of the Constitution. But since the courts have read way too much into the Commerce Clause, and since the courts upheld the GCA based on that overly-generous interpretation of the Commerce Clause, they would have to apply that same logic to Concealed Carry Reciprocity.

      In other words, he’s not saying that he thinks the Gun Control Act is constitutional, he’s saying that if the court thinks that it is, then so too must Conceral Carry Reciprocity, according to their own logic.

      • You’re fine, as I took no umbrage at all. I still disagree with his point. I fully understand his logic and how CC reciprocity but the left in a bind if they are to remain consistent. The problem is. They won’t be. We have seen time and time again how activist judges and legislatures twist words into their opposite meanings to suit their own purposes.

        Congress had no authority to pass the GCA, especially on commerce clause grounds as the GCA is also applied to intrastate commerce (you must affix a serial number to a firearm made and sold in state). It is also a blatant violation of the 2nd Amendment. You can not put ‘sporting purpose’ restrictions on firearms, yet somehow not be infringing on the right to keep and bear arms.

        The crux of his argument is using the activist’s logic against them. He fails to realize they do not operate off of logic. Only feeling and rationalizing said feelings.

        • You, Kroglikepie, are 100% correct; Cory C. didn’t pay any attention to your comment that you “understand his logic”! My immediate reaction was that this is a stupid thing to do, compare the National Reciprocity Act with the Gun Control Act because NEITHER one of them is constitutional. I totally understand his intent, but what should have been stressed is that we are creating more BULL$HIT laws to correct unconstitutional laws, instead of getting rid of unconstitutional laws altogether. ALL gun control laws are UNCONSTITUTIONAL, PERIOD! And what the government should be doing is giving the smack down to states like Illinois, NJ, NY, and Commiefornia (to name a few) for violating the Constitution! They should immediately lose ALL federal funding, no matter what it is for, until they comply with the Constitution. Sadly, the federal government is in violation itself and needs to eliminate the entire ATF and disarm ALL federal agencies except for those that actually enforce constitutional law, before trying to make states conform.

    • I agree with Cory. I’d point out that Kopel said that the GCA doesn’t fit under the powers granted Congress by the Commerce Clause. “This is not really consistent with the original meaning of the Interstate Commerce Clause.” An act not consistent (inconsistent) with the Constitution is not constitutional (unconstitutional).

      His argument that striking down reciprocity as not a valid exercise of the commerce clause would not be a loss for the 2A. It would be a huge win for originalists if the commerce clause powers were rolled back. However, as Mr. Zimmerman points out, I wouldn’t put it past liberal activist judges to hold one way in an anti-gun ruling and a completely different way in every other case.

      • “I wouldn’t put it past liberal activist judges to hold one way in an anti-gun ruling and a completely different way in every other case.”

        GCA would qualify as a “reasonable restriction”.

        Besides, if lower courts can ingore “Heller”and “McDonald” with impunity, why would “consistency” have “standing” as requiring consistency of reasoning/application of law?

        • “Reasonable restrictions” don’t have anything to do with the commerce clause as grounds for legislation. They also don’t have a whole lot to do with legislation under the 14A as courts have consistently ruled that legislation going beyond the base constitutional protection are a okay.

          For a court to uphold a federal law, the Congress must first have authority to pass that law. This is the step the article, and my comment, is about. Only after that do courts look to see if something in the Constitution prohibits that otherwise constitutional law. This is the step where reasonable restrictions would come into play.

          You typically don’t see this played out in court opinions because they only address the arguments brought up by the lawyers on either side. Lawyers typically don’t bring up the government’s authority to pass the law.

          • It will be astounding if any court finds current restrictions on guns impermissible.

            Gotta tell ya’, I hope C. Nichols wins his open carry case. Looking forward to the entertainment of watching states dismantle their concealed carry laws, or tighten them to match NYC. Politics should never be dull.

        • “Besides, if lower courts can ingore “Heller”and “McDonald” with impunity, why would “consistency” have “standing” as requiring consistency of reasoning/application of law?”

          I already addressed that point in my comment. “I wouldn’t put it past liberal activist judges to hold one way in an anti-gun ruling and a completely different way in every other case.”

          Standing is “the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party’s participation in the case.” – Wikipedia.

          • I used “standing” as a substitute for “significance”, “importance”, “relevance”.
            Thus the quote marks.

  3. “Reasonable restrictions such as…” Open to any interpretation that limits ownership, possession and use of guns. Lawyers’ full employment provision.

    We barely got a tax reduction bill passed. People in the country believe a tax cut will be a loss of income to them. The same people believe gun owners are an insult away from shooting up a mall. Repubs simply do not have the votes to get any gun bill (other than confiscation) passed. And there is no penalty for punting the issue.

  4. David Kopel is a wolf in sheep’s clothing. He voiced support for the bump stock ban and said machine guns are not constitutionally protected. He can take a long walk off a short pear.

  6. The 14th was terribly written and rammed through ratification under enormous duress. It, more than any other amendment, is rife with unintended consequences (or were they intended, since each had matched steadily toward federal tyranny)

    But it’s time that sword cuts our enemies as it has ourselves.

  7. TTAG should post a contact list of NRA, GOA, and every state version of same so we can start calling for a million gun owner march that chokes Pennsylvania Avenue.

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