By Sam Hoober, Alien Gear Holsters
As most are aware, there is a new and improved HR 38, a proposed bill that would enact national concealed carry reciprocity.
The bill was introduced by Rep. Richard Hudson (R-NC) and is currently in the Subcommittee on Crime, Terrorism and Homeland Security. The bill itself is a recalibrated take on the last HR 38, likewise a bill that was intended to establish national concealed carry reciprocity.
Does this mean the national nightmare of having to memorize what states you can carry in is closer to being over?
Not to be the bearer of bad news, but I wouldn’t hold my breath. Not only is it not likely to pass in the current climate, but there are a number of legal issues that would be waiting in the wings if it were to.
Unfortunately, it isn’t always as simple as just passing a law to make things happen. Legislation has to be constitutionally permissible. Even if Congress looks the other way, the states or the people can challenge the law in court.
Take, for instance, the stolen valor laws. The Stolen Valor Act of 2005 made it a crime to falsely claim having been awarded military medals or service, but was eventually struck down by the Supreme Court in US v Alvarez as an abridgement on speech, even if said speech is particularly loathsome.
The second version, the Stolen Valor Act of 2013, made it a crime to do so for financial gain. Granted, impersonating someone for financial gain is already a crime (namely fraud) so all that law does is say “well it’s A DOUBLE CRIME NOW!” For good reason? Sure, but still.
As far as national reciprocity, first we have the political climate.
Democrats nor Republicans are not a monolithic bloc; every member is different. Some Democrats are moderate if not slightly conservative (Reagan Democrats were a thing) and some are not at all.
A few Democrats in the Senate would have to vote for the bill if it even made it to the Senate. Getting out of the house is the more dubious prospect, as there would have to be enough of them willing to cross party lines as well as full Republican assent to the bill.
This issue specifically does not have broad bipartisan support, so that’s not likely.
Then we have the legal ramifications.
The last House Resolution 38, also a national concealed carry reciprocity bill, passed the house but stalled in the Senate a couple of years ago. It likely did so because the mechanism the bill used was likely to get blasted to smithereens by a legal challenge, and the Senate knew it.
The last version used the Full Faith and Credit Clause – Article IV, Section I of the US Constitution – to compel the states to recognize concealed carry permits.
The “FFCC” holds that the states must recognize official documents between them, such as marriage certificates, birth certificates and so on…though oddly enough not driver’s licenses, which we’ll actually come back to in a second.
However, SCOTUS precedent establishes that the FFCC does not extend to public policy, meaning that one state does not have to honor the laws of another state should they differ, so long as the state law in question isn’t trumped by federal law.
At the moment, concealed carry permits, their issuance and manner of issuance are completely in the sphere of public policy. Therefore, the FFCC cannot compel any state to recognize the concealed carry permits of another state.
The current HR 38 uses Article 1, Section 8, Clause 3 – the Commerce Clause – which states:
“The Congress shall have Power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”
The commerce clause, one of the foundational powers of Congress, gives the legislative branch the ability to regulate commerce that takes place across state lines. While there have been SCOTUS cases involving the Commerce Clause that relate to civil rights (such as Heart of Atlanta Hotel v US) but there is a hitch.
Namely, that hitch is that the Commerce Clause only applies to commercial activity; there has to be some sort of business going on involving interstate businesses or persons in order for it to actually apply. In other words, some sort of tangible transaction has to be occurring.
Heart of Atlanta was a discrimination case; the hotel was in violation of the Civil Rights Act for not renting rooms to African Americans. Carrying a gun in public is just not quite the same. There’s no tangible commercial activity necessarily occurring in the act of concealed carry.
Another issue is the question of federal interest in concealed carry permit laws.
To date, federal precedent only holds the states must do the following:
Eligible persons must be able to legally obtain a permit to carry a firearm.
Eligible persons have to be able to carry a firearm in some way in public.
That’s really about it.
As to permits, the judiciary so far has only concerned itself with that a person technically be able to get a permit in law, even if they aren’t really able to get one in fact.
Here’s how that works.
Some jurisdictions are notoriously ham-fisted when it comes to issuing permits. The state of Hawaii is said to have not granted any concealed carry permits in a decade; the city and county of San Francisco likewise is known for basically never granting them.
San Diego County was challenged in Peruta v. San Diego for its strict policies, which the Ninth Circuit held was perfectly legal. Since a person could technically get a permit (even if nearly impossible in reality) the Second Amendment wasn’t being infringed on.
Granted, the Ninth Circuit not understanding the difference between de jure and de facto is a little astonishing, but that’s a topic for another time.
Precedent as far as carry method is that it doesn’t matter if open carry or concealed carry is prohibited so long as one or the other is available. After all, the Second Amendment doesn’t even mention how a person should carry and bear arms, only that they must be able to in some way.
So, what does this mean for national concealed carry reciprocity?
For starters, this bill is probably dead on arrival. It uses a congressional power that has nothing to do with the issue at hand, since the Commerce Clause only concerns – well – commerce. Even if it could pass, it would almost certainly be torn to shreds if challenged.
So it looks like we’re going to continue to wait.
But this also begs the question of how national reciprocity could become a thing.
The answer? There are two.
First is national constitutional carry. Since federal law trumps state law, there you go. However, the likelihood of a national constitutional carry law anytime soon is fantastical.
It’s not going to happen unless the midterm elections pack both houses with enough Republicans to override a Biden veto.
Another would be state-by-state adoption of constitutional carry. A fantastic idea, but not one that is likely to happen in reality.
More states adopting permissive shall-issue laws that recognize any valid permit would also work, but again you have the problem of some states being less than receptive to the idea. Unless a major sea change were to take place, so to speak, that would not likely fly in Massachusetts, Maryland, New York, New Jersey, California or Hawaii.
Another possible path to national reciprocity, and this idea has been floated before, is the idea of a federal concealed carry permit.
You’d be surprised at how few federal professional accreditations there are, and there are only a few federal forms of ID, but they do exist, and then there’s the fact that LEOSA allows law enforcement officers to carry across state lines. Therefore, a federal CCW would almost certainly have to be recognized.
Granted, that doesn’t mean officers carrying under the auspices of LEOSA have an easy time of it. Several states have not only arrested police officers for carrying out-of-state, but actually TAKEN THEM TO TRIAL.
New York and Hawaii are said to be particularly inhospitable, even to police officers – trained officers of the peace – having guns.
Had one to conjecture, a federal permit is probably the most likely to succeed, but a federal concealed carry permit in the current climate would probably take a miracle.
Sam Hoober is a Contributing Editor to 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.