Congress should use constitutional power to force states to honor gun rights

A few weeks ago, the House of Representatives passed the Concealed Carry Reciprocity Act of 2017 with bipartisan support. The Act would allow persons eligible to carry a concealed firearm in their home state to carry in other states as well. Opponents contend that the Act violates federalism. Actually, the Act is well within congressional powers under the Fourteenth Amendment. That Amendment was enacted specifically to give Congress the power to act against state infringements of national civil rights.

Section one of the 14th Amendment forbids states to violate civil rights. Section five of the Amendment grants Congress “the power to enforce, by appropriate legislation, the provisions of this article.” Enacted during Reconstruction, the Fourteenth Amendment was a remedy to ex-Confederate states denying freedmen the right to arms and other civil rights.

One of the civil rights protected by Concealed Carry Reciprocity is the right to interstate travel. It is “a virtually unconditional personal right, guaranteed by the Constitution to us all,” the Supreme Court said in Sáenz v. Roe (1999). The Sáenz court explained that travelers have the “right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second state.”

{mosads}Yet some states, such as New Jersey, do not allow nonresidents to apply for carry permits, and do not recognize permits issued by other states. The penalty for unlicensed carry is a mandatory sentence of at least 3.5 years in prison. New Jersey thus treats interstate travelers as unfriendly aliens.

New Jersey’s policy is especially unfair because travelers are especially vulnerable to crime. Travelers, including tourists, often carry large sums of money, and may be unfamiliar with the area they are visiting, not necessarily knowing the safest routes to take when walking.

The Fourteenth Amendment grants Congress the power to enact a remedy against state mistreatment of interstate travelers.

Another national civil right that is protected by the Reciprocity Act is the Second Amendment right to bear arms. As the Supreme Court wrote in D.C. v. Heller (2008), “the inherent right of self-defense has been central to the Second Amendment right.” Thus, the Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.”

Like other constitutional rights, the right protected by the Second Amendment is not limited to one’s state of residence. The Fourteenth Amendment made the Second Amendment (and most of the rest of the Bill of Rights) directly enforceable against the states. Coloradans must be free to practice their religion in Utah. Ohioans’ free speech must be protected in Michigan. North Dakotans must be free from unreasonable searches in South Dakota. And Idahoans’ right to bear arms must be recognized in Oregon.

In Heller, the court suggested that concealed carry is not part of the Second Amendment right. The court cited with approval several nineteenth century state cases that upheld concealed carry bans because open carry was still lawful. However, some states make it nearly impossible for visitors to bear arms lawfully in any manner at all.

For example, Illinois prohibits open carry, does not honor concealed-carry permits from any other state, and allows residents of only four other states to apply for an Illinois permit—effectively prohibiting the residents of 45 states from bearing arms within its boundaries.

The opponents of the Reciprocity Act do not argue that the bill should protect open carry rather than concealed carry. The opponents prefer wholesale denial of the exercise of the right to bear arms in any manner.

In general, courts are deferential to the means that Congress chooses to exercise its Fourteenth Amendment powers against state intrusions on civil rights. As with similar congressional powers under the Thirteenth Amendment (banning slavery) and the Fifteenth Amendment (voting rights), Congress can prohibit state actions even when the Supreme Court has held that such actions are not per se violations of the Constitution. For example, the Supreme Court upheld literacy tests for voters, as long as the tests were administered fairly. Lassiter v. Northampton County (1959). Yet when Congress’s Voting Rights Act of 1965 banned literacy tests, the court upheld Congress’s discretionary exercise of its power. S.C. v. Katzenbach (1966).

Even if a court were to hold that the Reciprocity Act is not a proper enforcement of the Second Amendment, the Act would still be valid as enforcement of the right to interstate travel.

Moreover, the Reciprocity Act is also supported by the same jurisdictional predicate as many other federal gun control laws: namely, that the firearm in question was once sold or transported in interstate commerce. This is not really consistent with the original meaning of the Interstate Commerce Clause. But if the Reciprocity Act were held to exceed Congress’s commerce powers, then much of the federal Gun Control Act would also be unconstitutional—such as laws that ban a person today from possessing a gun just because the gun was sold in interstate commerce four decades ago.

In short, whether you prefer that the Constitution be interpreted based on modern precedents, or based on original meaning, Congress has the discretion to pass the Reciprocity Act.

David Kopel (@DaveKopel) is research director at the Independence Institute (@I2idotorg), a free market think tank in Denver. His Dec. 6, 2017, written testimony on congressional powers to enact interstate reciprocity is available on the Senate Judiciary Committee website. Joseph Greenlee is a fellow at the Millennial Policy Center (@MilPolicyCtr) in Denver.