Saturday, November 25, 2017

National Reciprocity - Licensing, State's Rights and The Second Amendment

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In a recent discussion with Hoot Gibson* on the topic of national reciprocity for concealed carry permits, he posited the following question;  "If the Federal Government mandates a "National Right to Carry" wouldn't that be a violation of the Ninth and Tenth Amendments to the US Constitution?  Just like the national mandate to purchase healthcare was/is?  Now, with that said...The Second Amendment already gives a national right to "bear" (carry) without any permit."

*Hoot is a retired USAF Master Sargent and  "First Shirt".  He was one of the Tech School instructors who taught me the finer points of weaponry and instructing.  We later served together and shot together on our unit's pistol team.  He was then and remains today a friend and mentor.

I replied; "Given that there is a Second Amendment, as you mention, it wouldn't violate the 9th or 10th; it would simply create a uniform standard, similar to a driver's license.  But I'm with you; there is already a national right to carry."

Hoot informed me I was wrong about driver's license reciprocity being federally mandated;  "There is no federal government requirement for state-to-state reciprocity.   These are agreements between the states".   I thought the driver's license issue might fall under the interstate commerce clause, and Hoot offered to do some research.

His research lead him to an article from "IT geek" and former law student, Kelly Kinkade.  In her article, she advises us that "Reciprocity of US state driver licenses across state lines is due to agreement between the several states and is not the result of any federal legislation."  The federal government does, however exercise a certain amount of leverage against the states via federal funding requirements.

Ms. Kinkade goes on to say,

"It is likely impossible—that is, unconstitutional—for the federal government to mandate that one state recognize a license issued by another state for any purpose, no matter what that be . . . (including) the possession of a firearm.  If the activity is one which the state is empowered to require (emphasis added) its own citizens to have a license to do, it is equally empowered to require citizens of another state to also be equivalently licensed . . .”

She believes it might be possible for the Supreme Court to establish a national right to carry via an interpretation of the Second Amendment by interpreting it as prohibiting the states from requiring a carry permit, at all.

"As long as the Constitutional right to bear arms does not preclude states from having the authority to grant or withhold licenses for concealed carry, states will have the right to do so on any terms, agreeable to that state, that do not violate the Fourteenth Amendment’s guarantees of equal protection and due process."

She believes the president or Congress, acting together or alone, do not have the authority to change the current practice; "any change here would have to come from the Supreme Court, using its power to interpret the Constitution to clarify the extent and scope of the Second Amendment’s guarantee, or in the form of a Constitutional Amendment to do the same thing."

Ms. Kinkade deserves credit for addressing the issue in an intellectual fashion, without bias.

While I concede the federal government cannot mandate that one state recognize a license issued by another state for such things as driving, the practicing law or medicine, plumbing and so forth, I must
disagree with that assessment when it comes to firearms.   I disagree because the right to keep and bear arms is a natural and enumerated right, acknowledged in the Bill of Rights, second only to the right of Free Speech.  Because it is so enumerated, it is outside the scope of the Tenth Amendment, which acknowledges that powers not delegated to the United States by the Constitution or prohibited by it to the states, are reserved to the states, or the people.

It is doubtful that the current makeup of the SCOTUS would conclude the Second Amendment is a national right, even though its inclusion in the US Constitution should make that abundantly clear. There is no evidence to indicate that when the Bill of Rights was ratified, Congress intended the states to have the power (vs. the right**) to license the ownership or possession of arms, concealed or not.

The primary reason a national reciprocity law is needed, (assuming we accept that states have the power to require a permit in the first place), is because there are states, and even municipalities, that will issue a carry permit only on the basis of “need”.  In other words, if an applicant cannot demonstrate that they have a specific “need” to carry a gun, no permit is issued.   This is not what they had in mind when the Bill of Rights was ratified.  Such places that deny their own citizens, will never voluntarily allow a non-resident to carry arms within their jurisdiction.

Connecticut is a state that requires one to obtain a local permit to carry (concealed or not), before they can apply for a state wide permit.  Many police chiefs have failed to act on permit applications at all, or arbitrarily denied them.   This forces applicants to go through a lengthy, cumbersome and often expensive appeal process.  This too, is not what they had in mind when the Bill of Rights was ratified.

The phrase, “The right of the People to keep and bear arms, shall not be infringed”, is pretty clear. SCOTUS Justice Hugo Black stated: “The Constitution was written by men who knew what words meant and who meant their prohibitions to be absolute”.  Denial of permits, the refusal to honor other state’s permits, are infringements.

There are those who argue that the “militia” refers to a national guard, even though the history of militias prove otherwise.  Edmund Burke wrote, “What is the militia, but the whole body of the People?”  History demonstrates that it is so.  Justice Scalia, in the Heller decision, wrote in effect, “If the prefatory clause (to the Second Amendment) read, “BECAUSE a well regulated militia is necessary to the security of a free state,” it would mean the same thing”.   He is correct.

Others claim the Second Amendment only applies to muskets, even though rifles were in common use at the time.  They are wrong.  The
Second Amendment contains the word, “arms”, which at the time encompassed knives, swords, etc. and even cannons, which were often owned by private citizens.  Yet, knives, swords and cannons are today banned from public possession.  Try carrying a sword in public and see what happens.

Clearly, the Second Amendment has been subverted.  Because it is an enumerated Right and exempt from the 10th Amendment, Congress, in my opinion, has every power to legislatively clarify this and require that the several states honor the permits issued by other states to be honored by all of the several states.

**Only The People have rights under our Constitution.  The federal government and states have specific and LIMITED powers, GRANTED to it, by The People, via state and federal constitutions.

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