Concealed Carry Reciprocity: Conservatism’s Love-Hate Relationship with States’ Rights

A swhat?Any serious “political junkie” will consider the following to be “old news” — that’s fair. I ask for a little leeway, as I catch up on interesting stories from the bar exam, uh, fortnight (?).

Two weeks back, social conservatives found a new cause célèbre, strange not in substance, but in procedure: the “Thune amendment,” a rider tacked onto the Defense Authorization Bill, which would have required states which grant “concealed carry” permits to honor similar permits from other states (see text, SA 1618). Despite being billed by conservatives as a “must-pass” Democratic agenda killer, it failed, narrowly, leading more than a few on the right to crow happily about the continuing vitality of the “conservative movement.”

Not so fast. The mere fact that this amendment ever saw the light of day reveals more about the continued incoherence of conservativism as a philosophy than it ever could about the Democrats’ inability to gather a significant majority around gun control laws.

The amendment’s proponents framed it as an exercise in constitutional fidelity, firmly grounded in the “Full Faith & Credit Clause,” which requires states to recognize the “public acts, records, and judicial proceedings” of their sister-states, as effectuated by Congress. U.S. Const., Art IV, § 1. But sister-state comity doesn’t work like that. Full faith & credit is commonly understood to apply to things like marriages — a divorce valid in California is still valid in Florida — but not to creatures of an individual state’s creation, like concealed carry permits or, to those who hold a certain, super-limited conception of the clause, the right to same-sex marriage. See Franchise Tax Bd. of California v. Hyatt, 538 U.S. 488 (2003) (“Our precedent differentiates the credit owed to laws (legislative measures and common law) and to judgments.”).

Accordingly, it is by no means mandatory that any state recognize as valid, or lend any weight whatsoever, to extraordinary state-created privileges like concealed carry laws. Any argument to the contrary would build the concealed carry privilege into a right, which it emphatically is not. Without the full faith & credit argument, though — which would treat the Thune amendment as merely doing what ought to be done, anyways — the Thune amendment starts to look fairly draconian, or at least offensive to any strict notion of “states’ rights.” After all, not all concealed carry laws are created equal, and several states already provide their own form of reciprocity by state law. Who’s Congress to preempt these delicately balanced arrangements?

And there’s the problem. Modern conservatism is supposed to stand for states’ rights and limited spending, if nothing else. But no modern Republican Congress or President has ever managed to slash federal spending, and now Republican Senators are happy to scuttle their respect for states’ rights, provided a sufficiently compelling social issue comes along. Compare the right’s willingness to drop their concerns for states’ rights in this case, with their vigorous assertion of the same whenever same-sex marriage starts to look like it might “go federal,” and you’ll come to this simple conclusion:

Conservatism has never been about states’ rights, at least not in the modern era. It just so happens that it’s a convenient argument to make against progressive social policies, like the Civil Rights Act or gay rights. To modern conservatives, concerns about states’ rights are a means, not an end in and of themselves.

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39 comments

  1. You’re making broad, unsupported assertions about *all* conservatives (and conservatism) again, Ames. (Cue Mike in 3, 2, 1…)

  2. Thanks for the intro RA!

    The truth is that while conservatives DO favor states’ rights, it doesn’t mean we all hate the fed. Gun laws are tricky in that as a simple matter of logistics it would be nice if concealed carry or simple transportation laws were consistent across the country. If I’m traveling with my family from Kentucky to Pennsylvania I’ve got to spend 30 minutes online checking the laws in each state to determine if it’s worth packing the 9mm into the car, which makes me feel a lot better about traveling with my family.

    1. That’s fair, but the convenience argument is one that still bumps against a strict theory of states’ rights. After all, it’d be nice, too, for gay couples to not have to sign a durable power of attorney, and carefully check the law of whatever state they might encounter, before taking a drive.

      1. Bearing arms is a Right. Marriage remains a luxury.

      2. Oooh, definitely wrong. The right to bear arms has not been a fundamental right — remember that’s a term of art — until recently, if it is at all. Marriage has been a fundamental right for as long as fundamental rights existed. Same-sex marriage is another story, of course, but only because the Supreme Court hasn’t done anything about it yet. I’d watch the case coming up from California. If the Court takes cert, they’ll be hard-pressed to come up with a sensible, not blatantly bigoted reason for denying same-sex marriage; I’d expect them to deny cert, like they did for the miscegenation cases, which you can take as a quiet signal that they know it’s coming.

        1. So the Right to Marriage is framed in the Constitution and the Right to Bear Arms isn’t?

          Are you reading a different version than I am?

        2. It’s not like that. “Fundamental” doesn’t refer to the origin of the right, but to the government’s limited control over the exercise of it.

          1. On the flip side of this discussion…how do those liberals in favor of things like Assault Weapons Bans with their opposition to a federal concealed carry law? Isn’t that equally contradictory?

            Guns have been regulated at the federal level for a very long time. Machine gun importation and ownership was restricted by the feds some 70+ years ago. I see no reason why federal gun laws can’t go both ways.

            Before DOMA I’m hard-pressed to think of too many federal laws affecting marriage.

  3. “Accordingly, it is by no means mandatory that any state recognize as valid, or lend any weight whatsoever, to extraordinary state-created privileges like concealed carry laws. Any argument to the contrary would build the concealed carry privilege into a right, which it emphatically is not.”

    Notwithstanding Scalia’s obiter dictum, I’m having trouble seeing where the “emphatically” comes from.

    1. “…A well-regulated militia…”

      1. Pretty sure that’s a preamble clause, not an operative clause, which means it’s as close as the Constitution has to meaningless fluff that can be ignored. Or have you forgotten what we learned in Model UN?

        Anyway, let’s assume for the sake of argument that it does provide a legitimate basis for imposing limitations on the right to bear arms – which can be defined as the political right to have tools to facilitate exercising one of the two human rights. The limitations based on that phrase still have to be independently supportable; “A well-regulated militia, being necessary to the security of a free State” doesn’t say “any restriction goes”.

        Now, I don’t hide the fact that I think formalist textualism’s the right way to interpret the constitution and substantive due process interest-balancing is completely wrong. But, the courts keep compromising rights, and as you’ve graduated law school and presumably passed the bar, I’m going to assume your mind’s been corrupted and you agree with them. No problem, I can work with that analytical framework. Right to keep and bear arms is an enumerated right, and it’s an auxiliary right to a fundamental human right, so either way: “Narrowly-tailored to a compelling governmental interest.” Limiting concealed carry’s got to be an element in the set [“narrowly-tailored”,”compelling government interest”]. So…

        What Mike was saying points us in the direction of one reason why it doesn’t satisfy the “narrowly-tailored” prong: cars. Take Virginia for example: there’s no permit required for open carry, but a permit is required for concealed carry. Possession of a weapon in a vehicle (unless it’s unloaded and in the trunk) is defined by statute as concealed. So, I can walk around with my .45 displayed to the world – perhaps even with it in my hand so long as the way I’m holding it doesn’t qualify as brandishing it at someone – but the instant I get in my car with it, I’ve violated the law. Thus the permit requirement has the effect of limiting the ability to keep and bear arms anywhere beyond walking distance from your home (or, if you live somewhere like Oklahoma, your job – for some subset of jobs). Of course, Virginia’s not a particularly hard state to get a concealed carry permit in, but in a state like, say, New York it typically is a real impediment.

        Come to think of it, what Mike was saying seems really to’ve been more of a chilling effect situation… which also doesn’t typically indicate a narrowly-tailored regulation.

        Then there’s the whole “compelling government interest” prong. Assumed for the sake of argument: there are compelling interests that can be served by weapons limitations on the general populace. So… what compelling government interest could be served by prohibiting or regulating concealed carry while permitting open carry? It’s hard to think what interest the Commonwealth of Virginia could have that would be served by allowing me to carry my .45 holstered to my hip as long as my shirt’s tucked in and not hanging over it.

        And therefore, I don’t think concealed carry is “emphatically” not a right.

        Yep, I’m quibbling over the adverb.
        :)

      2. Anyone reads phrases out of the Constitution at their peril — it’s not meant to read like a UN Resolution, or a Senate bill for that matter :). The “well regulated militia” line is either pre(c/f)atory, or expresses the reason for the Amendment. Both are significant, and both should be given effect. As surely as we turn to constitutional history to construe “speech” or “equal protection,” we should at least start with the damn document, for chrissake, when construing what the right to bear arms means.

        Now, I won’t defend Virginia’s statute, which does seem to be kind of botched, and thus a poor example of effective and useful concealed carry laws. But two things — (1) the Second Amendment’s not applied to the states, YET, and; (2) if any regulation on firearms is to be valid, concealed carry seems to be a good place to start. Concealed carry implicates the gravest of public safety concerns without furthering 2 of the 3 main reasons we have a right to bear arms — militia and hunting. The third, self defense, is admittedly helped, but at a fairly grave cost to the general public welfare. While strict scrutiny is indeed strict in theory/fatal in fact as applied to race, strict scrutiny is frequently met when it comes to fundamental rights. This would seem to meet the test.

        1. I have visitors, but several things quickly:

          1) I disagree that prefatory/precatory statements are ever significant. They’re the definition of “mere surplusage”.
          2) What principled reason makes reading words out bad, but reading words in (“unless narrowly tailored to serve a compelling governmental interest” doesn’t appear anywhere in the text, after all) or reordering them (In the text, “right to keep and bear arms” is unmodified. Your interpretation moves “well-regulated militia…” over from a separate clause to turn it into a modifier) ok? Sure, that’s how the Supreme Court does things, but why isn’t that a case of “Constitutional Interpretation: SCOTUS is doing it wrong”?
          3) Is there a defensible reason not to apply the 2nd Amendment to the states?
          4) You seem to’ve missed my point in bringing up Virginia’s fairly typical concealed carry regulations. I posit that there is no such thing as “effective and useful concealed carry laws” because their “cost” to the general public welfare is identical to the cost of open carry – concealed carry does not endanger public safety any more than open carry. That it implicates subjective concerns is irrelevant – actual public safety may be an acceptable goal, but perceived public safety?

  4. It seems that almost everyone argues the false dichotomy between ‘states rights’ and ‘federal power’ when faced with the problem of individual rights.

    The correct model is a hierarchy: individuals first, states second, and federal powers (only as delegated) last.

    It is the responsibility of the federal government — and among it’s delegated powers — to ensure that no state abuses the fundamental rights of Americans.

    Were this not correct originally (and it was due to Article IV, Section 2, Paragraph 4) then it became so with the 14th Amendment.

    On a smaller point, while it might be argued that concealed carry is not a right, this ONLY works if open carry is available — otherwise the right to bear arms, i.e., carry them for protection and other lawful purposes, has been infringed unconstitutionally.

    In the 1800s it was argued that ‘concealed carry’ was somehow more dasterdly, but modern laws and legislatures have decided almost universally that it is preferable to have firearms concealed unless needed.

    One or the other (or both) MUST remain available to law-abiding responsible citizens as certainly as the rights to free speech, religion, press, travel, assembly and others must be left inviolate.

    Such rights can only be removed after due process to actual crimes committed, and never due to the bad behavior of others.

    1. There’s no Art. IV § 2 ¶4.

      As for your argument, that’s more political theory than actual law. This is not some libertarian/Paul-iac paradise, and the structure of the Constitution is to set out federal power, with the residue to the states or the people.

      1. Hey, political theory is WAY more satisfying than law. It lets you work with “this is what should be done” instead of “this is what has been done”. Plus, your odds of being able to actually impact howstuffis that way are way higher – most people’s odds of becoming a legislator or a legislator’s well-connected buddy, though minimal, are still higher than their odds of becoming an appellate judge. And since appellate judges are the only people with any ability to actually change a substantial portion of the law…

  5. Being in NYC, stories about people being hit by stray bullets are rather frequent. There is a moderate comfort in the fact that the gun laws are strict to prevent too many guns from being in the city.

    But if someone can get a gun in CT or NJ and simply walk into New York City, that jeopardizes the laws the city and state have legislated.

    Already I know people that set their “home address” in another state to be able to do things like get low cost car insurance. So of course people would take advantage of loose gun laws elsewhere to be able to legally keep guns where they otherwise wouldn’t be able to according to the law.

    1. Are those laws really going to keep guns out of NYC? Remember the old saying: “If we outlaw guns the only people who are going to have them are the outlaws.”

    2. Oneiroi · ·

      Not completely, of course not, but I think right now it’s rather hard to get guns in nyc with the stringent rules.

      I don’t want an easy way for people to get around them by going through another state’s laws. I don’t want some local gang to take a day trip to wherever to be ably to “legally” have guns in the city.

      1. They don’t have to. The guns are brought to them. Most guns used for crime in the NYC area are purchased in Southern states. That’s why state laws seem kind of antiquated. Federal laws and federal enforcement is the only way to deal with a national problem of gun trafficking. But that goes both ways.

    3. Oneiroi · ·

      Besides, a blatantly illegal firearm is much easier to confiscate and prosecute than a legally obtained firearm.

    4. Oneiroi · ·

      Again, if the police show up somewhere and discover someone has an illegal firearm. They haul the person off to jail.

      Now if a police happens on a scene and the person has a legally obtained gun from Jersey, the cop can’t do a thing, despite the rules in the city.

      I’m sorry, that’s a world of difference.

      1. So why not invest the efforts in a database that allows police to trace guns back to the purchaser? If someone in NJ has a gun purchased by some guy they’ve never heard of in GA, obviously there is a problem?

        We have to quit using these broad strokes to stop a specific problem. Forcing the law-abiding citizens to not be able to defend themselves while the criminals continue to get guns seems counter-intuitive.

      2. Oneiroi · ·

        It’s just a giant loop hole to go around existing laws by exploiting a different state’s rules.

        Suddenly the whole system of laws the city/state makes for ITS citizens is undermined.

        It sucks that small percentage of people passing through may be inconvenienced, but living here, I don’t care about the inconvenience of vacationers. They don’t live here.

        1. And that’s exactly why state to state gun laws are pointless. A federal gun regime is smarter and helps with enforcement.

          As for NY, your state would be much safer if guns were more common in the hands of law-abiding citizens.

          1. i would love for someone to explain to me, how we’d all be safer with everyone “packin”? harkens back to the wild west! i’m not sure i’d like all my neighbors to be armed especially. some are definitely questionable, though law-abiding, so far.

            1. Look at the crime statistics on states with concealed carry laws verses states without them.

          2. Something about correlation and causation comes to mind. I seriously doubt there’s any real-life situation in which a robber is scared away from their victim because the victim pulls a Glock from inside his trenchcoat. No matter how much we may wish it, life is not a film noir detective movie.

            1. It’s not about the actual confrontation. It’s what’s going through the attacker’s head before he acts.The threat of someone defending themselves is a powerful deterrent.

              (And just for the record, if you pull a gun, the idea is not to ‘scare them away’. There was an old line in the Iron Fist comic book, “Only drawn to be used, only used to kill.”)

          3. Another note on Mike’s point: if we’re to look at statistics, why not look at England? In the UK, guns are illegal — literally the only people who can have guns are outlaws. But their crime rate is significantly below the US, and their rate of violent homicides is even lower. By a wide, WIDE margin.

            1. That’s a terrible idea. You can’t compare two countries with completely different cultual sensibilities. It’s much more accurate to compare states.

              But just for the record, the lack of homicides does not mean no violence occurs. England has a high rate of assaults.

        2. I disagree.

          I feel like NYC has historically had a problem with gun violence and high murder rates.

          There are various causes of that lowering, but I feel like the city has established gun laws that people feel work.

          Having tourists undermine that law, isn’t fair to the people who live here. Here or anywhere else.

          1. Do they really feel like it works? Is there polling data on New Yorkers and concealed carry?

          2. Well I’m basing it off the rather popular elected officials like Giuliani and Bloomberg. Guilliani being rather popular for helping to reducing crime, in part to his support of gun control laws. In addition to the problems other officials like Gillibrand who are controversial in the area due to their pro gun stances.

            That and I don’t see a lot of push for gun-rights legislation in the city. I don’t think a gun rights mayor could be elected.

  6. So why is a Kalifornia driver’s license valid in all 50 states then? How is that different?

    1. My guess would be individual state-created reciprocity or congressional statute providing the same; if it was Congress that ensured reciprocity, it would be a damn sight more within their enumerated powers than gun laws (interstate commerce, etc)

      1. Hmm… sounds fishy to me. I think it is states like Kalifornia which don’t want CCW holders from other states to be legal in their state. Political again.

  7. Restarting here to avoid the nesting problem — while America and England are indeed different nations, I wonder if that goes more to their willingness to enact gun reforms, rather than their effectiveness. Unless you’re seriously arguing that Americans are more violent by nature, thus necessitating freer gun laws to the point of everyone-gets-a-concealed-carry permit, I think that’s a better explanation of the pertinent differences.

    And, you’re right, there are more assaults in England. But as I’m sure any-one would tell you, an assault is preferable to a homicide, or a little kid dying from a gun accident. I’d make that trade readily. As someone who lived in England, and saw one or two assaults (victim was ok each time; British police, for their lack of guns, are quick to respond and fearsome!), I found the knowledge that guns were rare there quite comforting.

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