Bill introduced for nationwide CCW
I don't have a link yet, but am informed by email that a federal bill has been introduced by Sen. George Allen, with 13 cosponsors, (update: reader Jim Archer reports that here's a link) to the following effect:
To amend title 18, United States Code, to provide a national standard
in accordance with which nonresidents of a State may carry concealed
firearms in the State.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. NATIONAL STANDARD FOR THE CARRYING OF CERTAIN CONCEALED FIREARMS BY NONRESIDENTS.
(a) In General- Chapter 44 of title 18, United States Code, is amended by inserting after section 926C the following:
`Sec. 926D. National standard for the carrying of certain concealed firearms by nonresidents
`(a) Definition- In this section, the term `another State' means a State other than the State from which a person holds a license or permit described in subsection (b)(2).
`(b) Authorization- Notwithstanding any provision of the law of any State or political subdivision thereof, and subject to subsection (c), a person may carry a concealed firearm (other than a machinegun or destructive device) that has been shipped or transported in interstate or foreign commerce in another State if the person--
`(1) is not prohibited by Federal law from possessing, transporting, shipping, or receiving a firearm; and
`(2) is carrying a valid license or permit that--
`(A) is issued by a State; and
`(B) permits the person to carry a concealed firearm (other than a machinegun or destructive device).
`(1) IN GENERAL- If another State issues licenses or permits to carry concealed firearms, a person may carry a concealed firearm in that State under this section under the same restrictions that apply to the carrying of a concealed firearm by a person to whom that State has issued such a license or permit.
`(2) NO LICENSES BY STATE- Except to the extent expressly permitted by State law, if another State does not issue licenses or permits to carry concealed firearms, a person may not carry a concealed firearm in that State under this section--
`(A) in a police station;
`(B) in a public detention facility;
`(C) in a courthouse;
`(D) in a public polling place;
`(E) at a meeting of a State, county, or municipal governing body;
`(F) in a school;
`(G) at a professional or school athletic event not related to firearms;
`(H) in a portion of an establishment licensed by that State to dispense alcoholic beverages for consumption on the premises; or
`(I) inside the sterile or passenger area of an airport.'.
UPDATE: see extended comments below]
I think it has fewer Commerce Clause problems than does GCA 68 itself, which might make it an interesting testbed, as it were, for that issue.
GCA 68, for instance, criminalizes a prohibited person's receipt of a firearm that *has at any time* passed in interstate commerce, and the courts have been very enthusiastic in upholding that (even though I think Lopez rules it out). The standard prosecution thus consists of proving that a prohibited person, say, received a Colt firearm, he was in Nevada, and Colt never made firearms in Nevada, so it must at some point have crossed a state line. End of case.
I'm going to take the time for some research, but as I recall the courts have been so enthusiastic in upholding this approach that they stretch GCA 68 farther than its face allows. There is a Supreme Court case in which the Court (via a couple of footnotes) essentially says that the statute allows prosecution for possessing a firearm that has ever moved in commerce. GCA 68 actually doesn't say that -- it say possessed in or affecting commerce (a stricter standard) or received a gun that has ever travelled. (It makes a difference if you can't prove that the person received the gun after he became a prohibited person -- then you can prove he possessed it now, but can't prove he was prohibited when he received it way back when). As I recall, the Court says Congress in writing GCA 68 meant to take it to the limits of the Commerce Clause, and then suggests that receipt + ever travelled would meet Commerce Clause standards, and says that's enough. Huh--Congress didn't write the law that way, regardless of whether it had the power to do so. But the Court says that's what the law means!
With this statute, at least the permit holder will in most cases be travelling interstate (I say most cases, because it'd be possible for a PA resident to get a NV permit).
There are some drafting problems, tho, esp. in the clause for states with no permit system. There the statute says you can't carry in certain areas, but does not say you CAN carry elsewhere. Absent saying you can carry, expressly saying it, courts are unlikely to hold it overrides state law... all Congress literally did was *outlaw* carrying in certain places. It may have implicitly allowed carrying elsewhere, but that's probably not good enough.
OK, I'm thinking like a lawyer, but that's what judges buy (esp. if they don't like the law). Here in AZ we had a state pre-emption law. Af the end of the state law chapter that outlines the state firearms restrictions (which are few) there was a clause that said no locality may enact regulations inconsistent with this chapter. When we challenged a ban on guns in city parks, the court of appeals ruled that gun ban was not "inconsistent" with the state law. The state law never expressly said you *could* own and carry guns in general, it only said you *couldn't* own or carry them under some conditions. Ergo, a city ordinance that added another restriction (no carry in parks) was not "inconsistent" with that state law. It just added to it. It would only be inconsistent if it allowed what the state forbade. (I argued the obvious intent -- why would the Legislature fear that cities would try to legalize what state law forbade? It'd never happened in the history of the State. The law was enacted against a background of cities in other states enacting stricter laws than the State ones, and that was its obvious intent. But the court didn't buy it -- it just read the face of the statute, in the most literal sense).
Even though I'd benefit from this law, I can't in good conscience support it, because I don't think Congress's commerce powers ought to extend so far as regulating the gun laws of the several states because the gun happened to once be in the stream of interstate commerce.
I would support perhaps a 14th amendment justification for this bill. Is such a thing possible?
Posted by: Sebastian at June 6, 2006 06:10 PM
How about a Full Faith and Credence basis?
Posted by: Ian Argent at June 6, 2006 06:59 PM
I'm not a lawyer, but I've always understood that full faith and credit doesn't apply to things like licensing. Driver's licenses, for instance, are simply recognized among the states by agreement rather than FFC.
The Supreme Court of the United States has long recognized a "public policy exception" to the clause. If the legal pronouncements of one state conflict with the public policy of another state, federal courts in the past have been reluctant to force a state to enforce the pronouncements of another state in contravention of its own public policy. The public policy exception has been applied in cases of marriage (such as polygamy, miscegenation or consanguinity), civil judgments and orders, criminal conviction and others.I'm assuming that gun licensing would fall under this "public policy" exception. But I could be wrong.
Posted by: Sebastian at June 6, 2006 07:11 PM
Here is some tongue in cheek humor on the subject circa 2004.
To: Hizhonor Mayor Richard M. Daley, City Hall, Chicago, Illinois
I am writing to congratulate you on your modern and progressive stance on the issue of Gay marriage. It is heartwarming indeed to see a public official with the cache and high standing you have taking this bold and forward thinking step into the 22nd century. It is good that you are putting yourself on the fringe of cultural evolution and it certainly is much more fun to talk about this issue than that nasty truck leasing scandal which recently has been diverting the public's sparse attention from your true mettle and concern for your city. City? Heck. For that matter, your concern for all mankind!
This Gay marriage issue is a vexing one to be sure. The pro Gay marriage lobby has decided that the reason d etra of the issue is the "Full faith and credit clause" in Article IV of the U.S. Constitution. They are claiming that if Massachusetts issues licensees for Gays to marry then all the other states of the union must honor those unions just as they do the traditional marriage between opposite sexes and I assume you are agreeing with this idea. This is a solid legal position based on a real law and I applaud you for wading deeply into a place you are not used to being. That takes guts.
Now, please let me get to the REAL reason for my missive to you. You have certainly decided to accept the reason put forth by the Gay lobby of why we must allow such marriages. If this is truly your stance then I find myself in amazing agreement with the premise. Therefore, I assume you will not have a problem with me gathering up my many firearms, legally purchased in this good state, and going out for a night on the town in your fine city.
I have a wonderful, old British mark IV .303 military rifle, as well as several handguns which I would love to show some of the nice movie goers, theater attendees and those out for a bite to eat in the city of Chicago. I'm sure the people I meet there would be fascinated by the history and technical specifications of these firearms.
Now, if you should suddenly get your hackles up over this idea I would be remiss if I did not remind you that many states in the union do not require any licenses for firearms at all. If we are going to utilize this "Full Faith and Credit" thingie, I assume it will go for all laws. Kentucky allows concealed carry for anyone. Vermont does not require any kind of license, as far as I know. Even our next door neighbor, Indiana, allows concealed carry in their fine state.
So, since you are suddenly so concerned with the U.S. Constitution, I certainly hope that you allow me to enjoy the same legal rights in your wonderful city that the people in over 30 States of the Union enjoy.
Heck, I'll even let you hold one of my pistols after checking to see that it is unloaded of course. Remember; Safety First! So, meet me on Daly Plaza one of these days and we can go out for a nice bottle of beer and a fish sandwich while we talk of my firearms and the automatic weapons your body guards carry.
Yours truly, Warner Todd Huston, a concerned Citizen of Cook County
Posted by: Rkm at June 6, 2006 08:45 PM
Even the most conservative reading of the commerce clause would support this law. This is a free movement of persons issue which has always been regulated under interstate commerce.
Posted by: happycynic at June 6, 2006 08:51 PM
Sorry, but somehow you missed missed the reference to the guns having moved in commerce--clearly the authors of the bill think they're doing what Sebastian is objecting to. Ah well, what's one more pathetic abuse of the commerce clause, nothing new or interesting to see here.
Posted by: Kirk Parker at June 7, 2006 01:40 AM
I share Sebastian's concern. However, realistically, this isn't much of a strech of modern commerce clause power. So our choice is whether or not we will use THE LAW (which isn't going to change anytime soon) to help ourselves out. Because "the other side" definitely is.
Posted by: Christopher A. George at June 7, 2006 04:53 AM
Isn't the commerce clause the underpinning of the Department of Education and the federal welfare system? If so, it strikes me that the proposed bill is no stretch at all.
Posted by: wrangler5 at June 7, 2006 07:24 AM
I think the 14th Amendment is the strongest justification. While courts have yet to incorporate the 2nd Amendment, I see no reason why Congress has to wait for them to do so. Let the anti-gunnies challenge the bill if they want. Worst case scenario: the Supreme Court expressly rules that the Second Amendment is not incorporated, an unlikely result given its current makeup, but not a net change from where the law is now. Plus, it would also have to break new ground in reining in the commerce clause, so in that respect, we'd still be better off than we are now, even if the bill is struck down. And if it's not struck down, we'd be a hell of a lot better off. This is a win-win.
Posted by: Xrlq at June 7, 2006 07:47 AM
I believe Congress tried to use the free movement of persons as a justification for the Violence Against Women Act, and The Court didn't bite. Plus, the law as it stands uses "has been shipped or transported in interstate or foreign commerce", which means Congress is saying that because it was once shipped in interstate or foreign commerce, then Congress can regulate my carrying of the arm against the laws of any state. I think that was the argument Congress tried to use in Lopez, and the Court properly struck down.
Believe me, if the law stands, I won't complain about the net effect. I would love to be able to carry in New Jersey. But I think this law goes beyond Congress' proper commerce powers, and that's something I can't accept.
Posted by: Sebastian at June 7, 2006 08:23 AM
kirk and sebastian,
Ya'll are missing my point. The free movement of persons and the manner of such movement has always been a matter of interstate commerce regulation. I don't care if the current draft has some zaney justification clause in it, but the law is clearly constitutional because Congress can regulated the movement of persons between states. This bill is no more a commerce clause violation than is the federal law which permits interstate transportation of firearms in locked containers in motor vehicles. Movement between states is by definition a federal issue because no one state has the authority to regulate it.
Posted by: happycynic at June 7, 2006 11:34 AM
I realize that Congress has very broad commerce clause powers under the current interpretation, and this particular law may not be inconsistent with that, but I'd like to see movement back toward a limited reading of the clause, rather than building on the current (incorrect in my view) expansive one.
If my presence in another state is sufficienct an act of commerce such that Congress can regulate my behavior over that of the laws of that state, or if Congress can regulate my behavior with regards to any article that's ever traveled in interstate or foreign commerce, what practical limit is their to Congress power? It was my understanding that Lopez started to address this in a positive way. I'd hate for us to retreat from those ideas by supporting a law that clearly goes against it. If that makes parts of GCA 68 unconstitutional, I'm fine with that. But I'm also fine with it making National CCW, as currently drafted, unconstitutional.
Posted by: Sebastian at June 7, 2006 12:19 PM
It's about time that we should have the right to protect ourselves. We all know what these major cities are turning to, and for that matter the country, with drugs. Unfortunately, I must travel though them at times. I for one sure hope this goes though. Deprived of my God given right in Illinois.
Posted by: Jack at June 7, 2006 12:21 PM
My point is that Congress' power to regulate interstate commerce is this manner works even under the most conservative view of interstate commerce. Thomas Jefferson would have been quite happy with this law. The limit is that it applies to travelers and other non-residents. If New York wants to limit handgun permits to the super rich, they can do that for all New York citizens. But if someone from Texas comes for a week of business meetings, what this law says is that New York has to recognize the Texas citizen's right to carry a handgun. If the Texas person stays long enough to become a resident, then New York law applies and he must follow New York rules. Now, allowing a New Yorker to get a Florida permit and then circumvent New York law might stretch a traditional understanding of interstate commerce (but not the modern definition) but this doesn't worry me too much as this law would otherwise be constitutional under Congress' authority to regulate the militia or its power to enforce via the 14th Amendment. We shouldn't allow arcane legal technicalities to cause us to oppose a law that would return an important substantive right that we should never have lost in the first place.
Posted by: happycynic at June 7, 2006 02:42 PM
You have yet to explain why you think that Chicago, DC, or NYC is trying to prohibit the free movement of persons. Last time I was in either, I didn't notice the slightest effort to do so.
Posted by: Kirk Parker at June 8, 2006 01:51 AM
Congress has the power to regulate the movement of persons and goods interstate. This would include the manner of such movement, such as whether the person in transit may bear a firearm or not. Its not a matter of stopping a prohibition, its simply the fact that Congress has broad power to define how and in what manner people and goods may move across state lines.
Posted by: happycynic at June 8, 2006 05:14 PM