By Sam Hoober, Alien Gear Holsters
As we’re all likely aware, the House of Representatives has passed HR 38, a bill containing both a national reciprocity law but also a bit of a patch for the Brady Act, enhancing the data collection and enforcement powers of law enforcement to keep prohibited persons from purchasing firearms.
The law, if passed as-is, would compel states via the Full Faith and Credit Clause of the Constitution to recognize any valid concealed carry license. Anyone in the United States would be able to put on a concealed carry holster, put a pistol in it and be able to lawfully carry in any state so long as they had a permit.
You might get the idea that grey skies are about to clear up, and we, the maligned concealed carry community, can finally put on a happy face. The current arrangement has some serious drawbacks, as it makes criminals out of otherwise law-abiding citizens and all for the shocking act of crossing a line on a map. Harelipping Bloomberg is just the icing on the cake!
I’d hold my horses, though.
While this is a positive step in safeguarding Second Amendment rights, there are some enormous hurdles standing in the way which are going to need to be dealt with before taking effect. A lot can go wrong between here and national reciprocity.
First is the Full Faith and Credit Clause itself. For those unfamiliar, the Full Faith and Credit Clause of Article IV, Section 1 mandates that states accept (or “give full faith and credit”) to the public acts, records and proceedings of other states. In short, states must recognize and honor official documents and so on of other states, though Congress can dictate how they are recognized.
However, there are exceptions. Specifically, the Supreme Court held in Pacific Employers Insurance v. Industrial Accident that the Full Faith and Credit Clause does not apply to public policy or statutes. In other words, the laws or public policies of one state cannot override those of another, so the traffic laws of, say, California don’t apply in South Dakota.
Here’s why that matters: the final arbiter of what our rights actually are in practical terms is the Supreme Court, for good or ill, and there hasn’t been a Supreme Court case establishing a right to carry a gun. An absolute right to own, yes; that was settled by Heller and McDonald v. Chicago, but not to carry.
The closest thing to a SCOTUS case regarding carrying of firearms outside the home were two appellate cases, 2012’s Moore v. Madigan from the 7th Circuit and 2016’s Peruta v. California from the 9th Circuit.
In Madigan, the 7th Circuit held that the right to carry was fairly obviously implied by the Second Amendment and therefore that Illinois had to at least offer a permit of some type. Illinois’ shall-issue carry law was passed soon after, preventing the issue from going to the Supreme Court. In Peruta (which was denied a writ of cert by the Supreme Court this year) the 9th Circuit held that while California’s may-issue laws may involve strict scrutiny in granting a person a license, a person can technically get a license, meaning Second Amendment rights are respected.
As a result, concealed carry and also reciprocity could be considered matter of state policy and laws. As it stands, HR38 is likely to be challenged (and an injunction against national reciprocity issued) on those grounds.
At this point, you might think “well, all states take driver’s licenses, so how could that be?” A driver’s license is actually recognized voluntarily. The states have all agreed to recognize motor vehicle licenses without federal prompting; there is no legislation compelling any state to recognize a driver’s license from another.
Then there’s the issue of the bill getting past the Senate, which is not guaranteed. Both houses of Congress have been dogged by infighting and dysfunction for years. Currently, there are 52 Republicans, 46 Democrats and 2 Independents. Presuming all 52 Republicans vote for the bill, 8 Democrats need to cross the aisle to pass the bill. The task is not Herculean, but far from guaranteed, and that’s after any revisions are made.
Should the bill be substantially altered, it must then go before a conference committee, wherein members of the Senate and House must agree on the bill before sending it to the President for signature.
So yes, this is a wonderful step towards national reciprocity. The law-abiding citizens of the United States should be able to carry in accordance with their Second Amendment rights without fear of arrest thanks to draconian restrictions by paternalistic elites that have the temerity to posit they act in our “best interests.” They don’t, and never have.
But we have a long way to go before it becomes reality.
Sam Hoober is Contributing Editor for AlienGearHolsters.com, a subsidiary of Hayden, ID, based Tedder Industries, where he writes about gun accessories, gun safety, open and concealed carry tips. Click here to visit aliengearholsters.com.