Category: 2nd Amendment

Pro-Gun Progressive seeks some feedback on the issue of of National Concealed Carry Reciprocity:

Lots of folks on our side of the issue are wary of the Feds deciding who carries and who doesn’t, which doesn’t strike me as unreasonable. I think much of this stems from the fact that shall issue CCW laws have thankfully found their way on to the books in all but a handful of states. If you live in one of those states, you’ve already got what you want and would understandably not be all that eager to have the Feds step in. If you live in NJ, IL, MD, or NY, you might be a bit more willing to look to the Feds for some help.

I live in Bucks County, Pennsylvania, about 10 miles from Trenton. Needless to say, I conduct quite a lot of business in New Jersey, such as buying liquor and beer, but also other things, and I would dearly love not to have to think “I left the pistol at home right?”, every time I cross the border. It’s 7 years in prison over there for forgetting if you get pinched. It would also have been nice if, on my travel to Virginia last month, I didn’t have to stop at the Delaware/Maryland border, put my pistol and ammunition in separate locked hard sided containers to be FOPA compliant, only to reverse the process after crossing into Virginia 40 minutes later. People in The South and West (minus California), don’t have to worry about this, because you can drive for days without having to worry about the law changing remarkably. Criminals don’t have to worry about this either, because they don’t give a crap about the law.

So the law would benefit me, but I’m still opposed to it as it stands, because the federal government simply has no power under the commerce clause of the constitution to force one state to accept another state’s law, and the proposed bill that I saw relied on the fact that the gun once moved in interstate commerce as the hook to give Congress regulatory power. I’ve heard this called “The Herpes Theory” of the commerce clause, and I think Congress and the Courts should renounce it, because it obliterates the distinction between what is local and what is national, that the constitution was meant to preserve in the first place. It seemed that The Supreme Court in United States vs. Lopez had rejected this argument, but quite a lot of federal gun laws still rely on it. Given the Raich decision, perhaps The Court is retreating from Lopez, but I’d like to hope Raich was only a bump in the road toward a more limited reading of Congress’ commerce power.

So what national reciprocity would I support? I think Congress could use two powers to allow it. It could use it’s militia powers to allow any licensed person to carry anywhere in the US as a national defense measure. In a world filled with asymmetrical warfare, this isn’t really such a far fetched notion. Alternately, the Fourteenth Amendment says:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. … The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. … The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

So Congress can just declare the remaining state’s restrictive statutes null and void under the Fourteenth and Second Amendments, and be done with it.

But we all know that’s never going to happen. Considering how much federal gun laws are based on herpes commerce clause theory, I’m afraid I have to come out against this one even if it benefits us. Unless, of course, passing it makes The Court rediscover the wisdom they originally displayed in Lopez, and clearly retreat from the herpes theory once and for all.