Diary

Why can't I carry my gun across state lines?

I proposed in an earlier Diary that the NRA might want to consider initiating a challenge to state reciprocity laws that, in effect, infringe on the fundamental rights of lawfully armed citizens to carry their concealed handguns from state to state.

I base this on two Supreme Court cases that I believe settled the question of whether a citizen has a constitutional, fundamental right to own a firearm, handguns in particular, for self-defense in the home and on their person. Those cases were: District of Columbia v. Heller, decided in 2008, and McDonald v. Chicago, decided in 2010.

Both cases recognized that while the right of gun ownership for self-defense is a fundamental constitutional right, which preexisted the Constitution itself, especially in one’s home — but not just in one’s home — states have the right to regulate the issuance of permits, nonetheless, outside the home (with deference to the Second Amendment’s “right to keep and bear arms clause) subject to reasonable regulation and prohibition. This right was recognized in the McDonald case.

As the court said in the Heller case, citizens must be permitted “to use [handguns] for the core lawful purpose of self-defense.” And this right is not subject to the whimsy of any branch, even the courts themselves. “The very enumeration of the right,” the court said, “takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.”

Particularly with regard to interstate travel, the right to “keep and bear” is important In Heller the court went into great detail explaining exactly what the right to “bear” meant. Justice Scalia, writing the opinion of the court in Heller, wrote that however one read the various clauses of the Second Amendment, “we find that they guarantee the individual right to possess and carry weapons in case of confrontation. ”

He went on, while not directly ruling on the “right to keep and bear” outside the home, noted Justice Ginsberg’s words in another case, where she acknowledged that the words “concealed carry” are commonly understood to encompasses the right to  “wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.”

The problem for us gun owners is this: state’s act as if the right to own, possess and carry a handgun for self defense comes from them, and will accordingly prosecute out-of-state lawful concealed carry permit gun owners who do nothing more than travel through or visit someone in another state.

As far as those of us who own and carry guns are concerned the right is clearly infringed where interstate travel is anticipated. But as the court reminded us in Heller, citing to one of its earlier cases: “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed .”. And it is that which I am focused on here.

The argument that a state has such far-reaching powers was raised in the  dissent of the McDonald case by Justice Breyer who argued that they did. The court rejected Justice Breyer’s argument this way: “Justice Breyer is correct that incorporation of the Second Amendment right will to some extent limit the legislative freedom of the States,” the court said, “but this is always true when a Bill of Rights provision is incorporated. Incorporation always restricts experimentation and local variations, but that has not stopped the Court from incorporating virtually every other provision of the Bill of Rights. The enshrinement of constitutional rights necessarily takes certain policy choices off the table. This conclusion is no more remarkable with respect to the Second Amendment than it is with respect to all the other limitations on state power found in the Constitution.”

This is not to say that state regulation is unconstitutional; rather it means regulation is acceptable within limits. That’s the way things are done, give that we have no national law on the subject (or do we) and fifty individual states to deal with.

In my earlier Diary I conceded the point that if a gun owner in one state takes up residence in another that person would have to comply with his or her new state’s concealed carry licensing laws. That’s not an issue, here.

I suggest, rather, that a challenge to state reciprocity laws is warranted especially when it comes to a state’s assertion that it has a right to prohibit lawfully licensed concealed carry permit holders in one state from simply visiting or traveling within its own borders because the license is not from that state. The problem is this: there are literally millions of lawful permit holders whose rights are arbitrarily infringed upon on a state by state basis, with no clear standard by which they can guide their travel or action. The free exercise of their constitutional right to carry for self defense, fully licensed, means nothing in those instances where it should mean the most — across state lines.

I propose that in the absence of a shred of evidence that a lawfully licensed gun owner poses a serious enough threat to its citizenry, such that a state may prohibit persons from even crossing its borders to visit family or friends, while armed, is without constitutional merit or foundation. I say this keeping in mind (1) the right of citizens to keep and bear arms for self defense is a fundamental right; (2) that it preexisted the constitution and Bill of Rights; (3) that state’s may not infringe on this right; and (4) that a lawfully issued concealed carry permit establishes that the person carrying has not otherwise forfeited that right, has overcome constitutionally accepted limitations which preclude that right, and is in good standing.

With the above in mind, I argue here that state legislatures have no basis to refuse the constitutional rights of citizens visiting from other states. Indeed, a person exercising a constitutional right, and who is licensed to carry in another state, should be entitled to full recognition of that right throughout the United States — not as a matter of state law, but as a constitutional requisite of that state’s very statehood and by virtue of the Second and Fourteenth Amendments.

But what about all other licenses? Does this mean that all licenses must be recognized across state lines? Well, first, not all licenses are protected by the United States Constitution. Gun ownership is; and second, unlike a licensed electrician or plumber, or even a doctor, where state laws may differ regarding the actual practice of the trade itself, gun ownership is not a trade; its nature is that of a passive license. The holder of a handgun permit simply carries a handgun.

States, under the above scenario, do not arrest out-of-state licensed plumbers, electricians or doctors simply for traveling through or visiting someone in their state. Why? Because they are not practicing their trade in that state but merely traveling through or visiting. And as for the right to carry a handgun for self-defense, the right does not end at a state line, but is every citizens’ unalienable constitutional right, and as the court has stated: a citizen may avail themselves of that right by whatever means, within reason, they deem most appropriate.

Whether it’s New Jersey or any other state, its interest in restricting the right to travel interstate is minimal, if non-existent. But what of public safety? Isn’t that a compelling state interest? Sure. But if public safety is the standard, I would suggest that automobile accidents account for far more deaths each year, by the thousands, than do gun related crimes committed at the hands of  lawfully licensed permit holders. Yet we recognize licenses to drive everywhere.

Moreover, as noted above I would argue that interstate travel is not a state issue, but rather a federal matter, and as far as the highest court in this land is concerned, since gun ownership is a federally recognized unalienable and  constitutional right, that right must be recognized by every state. So, even assuming arguendo that a state has a legitimate interest in regulating the issuance of concealed carry permits for its own citizens, that interest must be structured on something more than a generalized one. It must be something greater than an abstract reason for doing so or a belief that something bad may happen. States are not fiefdoms. Their borders are drawn with geographic, invisible lines, not moats, and they are all part of and subject to constitutional mandates.

States seeking to impose a reciprocity restrictions should be required to show why a ban on traveling with a passive concealed carry permit, either (a) infringes on its right to issue licenses to its own citizens, or (b) threatens the public well-being any more than driving an automobile through the same state. In the absence of either, the ban should be viewed as arbitrary and overly broad.

I can’t argue strongly enough that a state’s interest in this entire subject should be limited to this: “Are you licensed to carry concealed?” That’s the only legitimate interest, I submit, because the constitutional right to carry is national. If the person is licensed, and he or she is merely traveling through or visiting, then the constitution, not a state law, should govern.

In the Heller case the Supreme Court , in leaving open the broader questions raised here stated that “there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us.”

I hope by now to have at least presented a case why a challenge to reciprocity laws is necessary, warranted and winnable. If states are permitted by the Constitution to issue lawful concealed carry permits, the multiple justifications for refusing to recognize those lawful concealed carry permits by other states should be viewed as an unconstitutional, vague and overly broad reach.

So  what standard actually applies? I suggest that the Supreme Court in both the case cited and others has consistently laid out the criteria under which a state is within its power to refuse to issue a license. If a citizen does not fall into any of those exclusionary categories, I suggest the issuance of a concealed carry permit by any state attaches itself to the Second Amendment nationally, and must be recognized by every other state. Anything less is an arbitrary and unconstitutional exercise of Second Amendment nullification on a state by state basis.