Category: Law

There are three powers of Congress that HR822, the bill to establish a federal requirement that states recognize each others permits, can be plausibly based on. I think a reasonable order of plausibility goes something like this:

1. Section 5 power of the 14th Amendment.
2. Commerce Clause
3. Full Faith and Credit Clause

HR822 is worded in such a way as to leave open the possibility of arguing all three powers before a court if the law ends up there, which it is nearly certain to. Of all the powers that could be upheld, I think the 14th Amendment power is likely the strongest. HR822, as it stands now, would be a more dubious exercise of the commerce power. Full Faith and Credit is an interesting idea, but the field is undefined enough I wouldn’t want to wager on the outcome. With that in mind, I’ll take a look at each power, plus a few more that Congress could potentially use to legislate in this area.

The Supreme Court has ruled that the Section 5 powers can not impermissibly expand a right beyond that which the courts have interpreted. While the Heller ruling never explicitly reached the subject of bearing arms, except within the home, it did implicitly recognize that there was a pre-existing right to carry a firearm outside the home for self-defense. The Supreme Court was mum on the subject of whether licensing of the right to keep or bear arms is permissible, but given that the vast majority of states have chosen to license the “bear” part, at least outside the home, Congress is probably most comfortably within its Section 5 power not to interfere with licensing standards, and jump ahead of the Courts in establishing the boundaries of the Second Amendment right. We have a pretty clear right to carry firearms in public under Heller, but the definition and boundary of that right are considerably less clear. If Congress is looking to protect this right from state interference, it’s worthwhile to look at opportunities which do not take an expansive definition of the right, leave most of the details in state hands, and performs a lawmaking function the Courts may be reluctant to undertake. Given that licensing can potentially interfere with the right to bear arms, and interferes with the right to travel, it’s a quite plausible exercise of Congress’s Section 5 power to force states to recognize each other’s licenses. It leaves most everything in the hands of individuals states, but merely forces recognition. This is plausibly meant to protect the right to carry in a way that does not interfere with state prerogatives, does not expand the right beyond which the Supreme Court has spoken of, and enacts a policy the Supreme Court is unlikely to reach. Remember that the courts can only strike down laws. Making law is something Congress needs to do.

Aside from the 14th Amendment, the bill is worded in such a way as to claim the commerce power. While a commerce clause claim is almost always plausible, there’s a strong argument that HR822 is outside its scope. First, it’s based on the herpes theory of the commerce clause, which says that if an object moves in interstate commerce, it’s forever within Congress’s prerogative to regulate the object, it’s sale, disposition, or use. The Lopez case, at least in theory eliminated the herpes theory, despite a lack of enthusiasm from lower courts. Absent the herpes theory, one can make a distinction between HR822 and the laws which rely on Congress’ power to ban felons from possessing firearms or ammunition. One could argue that banning felons-in-possesion is part of Congress’ broad, national scheme for the commercial regulations of firearms, with the aim of keeping firearms out of criminal hands as a matter of national policy. In that case it may be said it is necessary and proper to ban possession entirely in order for the national scheme to remain effective. This would be fitting with the standard established in Raich. It’s much harder to make that case with a scheme that mandates reciprocity. How does this scheme contribute to Congress’ national scheme to regulate the commercial market in firearms? One could make the argument that people being afraid to move between states without sufficient protection has a negative net effect in interstate commerce, but this was exactly the argument the Court rejected in Morrison. I think HR822 would stand a chance of being invalidated purely as an exercise of the commerce power, since it is not necessary and proper for the execution of any national regulatory scheme connected to broader commerce.

Could Congress call on the commerce power to establish federal standards for issuance or to establish strict federal standards for reciprocity? Plausibly, yes. But likely only so far as it could be shown that the scheme was “necessary and proper” for the furtherance of national policy on firearms commerce. That’s not as high as standard as I would like, but it’s worth noting that Congress could have done this at any point in the past 20 years. Yet it hasn’t interfered. You can imagine our opponents would have loved federal intervention to put a stop to concealed carry, or frustrate its progress as much as possible. The reason Congress hasn’t is because they are afraid of us as a voting bloc. The reason they will continue not to interfere is the same reason. The commerce powers as they are understood today have existed since the New Deal. These are not new powers.

Finally, Full Faith and Credit is a plausible source of power, which empowers Congress, “by general laws, [to] prescribe the manner in which such acts, records, and proceedings, shall be proved.” As best as I’ve been able to find in my research, this power is relatively undefined. So Congress may have the power to mandate reciprocity as a matter of Full Faith and Credit, though it may not. There’s good arguments to be made on both sides.

So what other powers could Congress claim to interfere with state prerogatives in this matter? One other I could think of is the Compact Clause, which states, “No State shall, without the consent of Congress, enter into any Agreement or Compact with another State.” It’s generally been interpreted to mean that if Congress does not explicitly object, its consent is implicit. But Congress could have, all along over the past twenty years, presumably invalidated every reciprocity agreement if it had so desired. While the reciprocity compacts are ones that I think would be likely to survive a court challenge absent congressional action, with direct Congressional action, it would look bleak for reciprocity.

There is a wide variety of lawmaking Congress is theoretically empowered to do, under well established precedent, that could shred the rights of gun owners. Where HR822 blazes the most new territory is in the 14th Amendment and Full Faith and Credit powers, where Congress’ can only claim power to protect our rights rather than destroy them. Previously, when all we had was the commerce clause, I was quite wary of Congressional action in regards to reciprocity because of the concerns many have raised about federal power to destroy rather than to protect. Given the whole of Heller and McDonald, I now think it’s a wise thing for Congress to dip its toe into its Section 5 powers, and see how the water feels. The only way we’re going to bring states like California, New Jersey, New York and Massachusetts back under the constitutional umbrella is for Congress to establish that it does not fear to use its 14th Amendment powers to protect the rights of Americans to keep and bear arms.