Year: 2011

Anyone who lives in Pennsylvania knows we’ve had a serious problem with local cities and towns bucking preemption. Florida passed a preemption law with real teeth, which provided for fines, recovery of attorneys fees, and even holding officials personally liable. Since then towns have been scrambling to get their illegal laws off the books. I’ve seen dozens of articles like this over the past few weeks, so I’m now inclined to suggest the Florida law is working quite well. Hopefully this will be a template for Pennsylvania in the future.

This started with a brief Twitter exchange between myself and AntiTango, about whether or not we want Congress involved in enforcing the 14th Amendment through creating a national reciprocity requirement, or whether we should get it through the courts.

I’ll start off by saying that we’re not getting carry in any of the remaining hostile states or localities, save maybe Illinois, without some kind of federal intervention, either through the Courts or through Congress. California, nor Maryland, nor New Jersey are going to pass right-to-carry legislation on their own; it will have to be forced on them through federal action, one way or another. I think it needs to be a combination of the courts and Congress. I don’t think one or the other will suffice.

It would be relatively easy for the courts to impose on, say, California, for instance, that they have to issue licenses in a manner that is not arbitrary or capricious, effectively rendering them shall-issue. I think it’s a tougher sell to suggest the courts impose a national scheme for license recognition. The former only requires striking down a portion of California’s licensing law, while the latter actually requires the courts to enact policy, which I think they would be reluctant to do. I think imposing universal licensing recognition is actually a pretty good use of Congress’ powers under the 14th Amendment.

There is some precedent that makes that use questionable, and shouldn’t be overlooked, but overall, I’d prefer to put the courts in a position where they’d have to thwart the will of Congress, rather than putting them in a position where we are asking them to formulate a national scheme through which licenses would be recognized. It would be far easier, I think, for the courts to uphold licensing, but require the states to issue to non-residents, as a means of satisfying the constitutional requirement. For a lot of reasons, I don’t think this is as ideal as just having forced recognition. The Courts could also prevent states from enforcing those requirements for non-residents, but that seems inconsistent, and I doubt they’d be willing to do that as well.

The argument can be made that Congressional Acts are easier to overturn than precedent, but I would note that our opponents have had zero luck, in the 42 states that have passed RTC so far, of reversing or limiting that policy, and it’s been two decades now. While it’s true that over the long term, it’s hard to predict, but precedent could also be overturned over the long term as well. I don’t think either route is a sure thing, and each has its advantages and disadvantages. I’m not very fussy about the tool, as long as the job gets done.

From Chris Cox, in the Daily Caller. Because this uses Congress’ 14th Amendment powers, I’m in favor of this legislation, as I believe it’s within the federal government’s powers. It does also use the commerce power, but in cases like this, when people could be facing arrest, with states choosing to challenge rather than obey, you want to have all your bases covered.

It sets up an interesting conundrum for left-leaning judges too. Currently the “herpes theory” of the commerce clause is the power that enables federal felon-in-possession laws. It’s never been used the other way, that is to enable gun rights rather than remove them. While I’d like to see the herpes theory relegated to the dustbin of history, part of me doesn’t mind extending this legal middle finger to the people who created this power, using it in a way they are probably horrified over.

CRPA is urging people to call the Governor’s office to veto SB 819, which would allow the DOJ to raid the background check fund to pay for enforcement of firearms laws and violence reduction programs. The concern is that this will run the system out of money and lead to fee increases.

This is not a futile effort, as Jerry Brown is friendlier on this issue that you might think. Friendlier than Schwarzenegger was. But this is a good test to put him to, so call. Your constitutional rights shouldn’t be used to help government raise money generally. That amounts to a tax on gun ownership, which ought to be unconstitutional.