How the 14th Amendment Paves the Way for National CCW Reciprocity

Law professor David Kopel. (Photo: Twitter)

Editor’s note: This article was written by Prof. Dave Kopel, the research director at the Independence Institute.  It originally appeared on the Greely Tribune website.  It is being syndicated here with the permission of Prof. Kopel. 

The House of Representatives recently passed the Concealed Carry Reciprocity Act of 2017 with bipartisan support. The act would allow people eligible to carry a concealed firearm in their home state to carry in other states, as well.

Opponents contend the act violates federalism. Actually, the act is well within congressional powers under the 14th 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 14th 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.”

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 14th 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 in 2008, “the inherent right of self-defense has been central to the Second Amendment right.” Thus, the amendment guarantees “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 14th 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.

SEE ALSO: South Carolina AG Joins Others to Urge Congress to Enact National Reciprocity

In Heller, the court suggested that concealed carry is not part of the Second Amendment right. The court cited with approval several 19th 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 14th Amendment powers against state intrusions on civil rights. As with similar congressional powers under the 13th Amendment (banning slavery) and the 15th 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. Yet when Congress’s Voting Rights Act of 1965 banned literacy tests, the court upheld Congress’s discretionary exercise of its power.

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 also is 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’ 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.

{ 13 comments… add one }
  • tom January 27, 2018, 5:53 pm

    Anybody out there have any idea how long this would take in a best case scenario? I’m going to New Jersey mid-April. Or does it look like this is this likely going to take another two years.

  • Jeffrey Turner January 27, 2018, 12:18 pm

    What about state’s that allow CCW without a permit like mine? Yes you can get a CCW but it’s ALSO LAWFUL TO CARRY CCW WITHOUT A PERMINT!. My intial. Understanding of the law is that a person ( say from my state) which allowes CCW WITHOUT A PERMIT visits another state & ppl see him imprinting & call the cops! AND respond and find in fact the person CCW is from another state that all We CCW without a permit ( as per his/ her ) drivers l iscence! Shows his/ her State of residence & that state ALLOWS CCW W/O A PERMIT! I think that was in the bill too because I’ve read people mention this fact

  • Leverett Hadlow Sr January 27, 2018, 12:14 pm

    If a person climbs the steps of a government building, makes their way to the office of choice, stands in line, fills out a form in triplicate with a black ink pen chained to the counter, and pays the clerk behind a barred window a fee, whatever that person is doing, he or she is *not* exercising a right. This applies if the person is applying for a building permit, marriage license, license to practice medicine, or a concealed carry permit.

    No one needs a permission slip from the government to exercise a right. This follows logically from the very nature of rights. What that person *is* doing is applying for a privilege.

    The Fourteenth Amendment wasn’t intended to protect people’s “right to ask for privileges” (a phrase, which, if you think about it, makes no sense), or people’s “right” to carry one state’s permission slip to any other state and expect that second state to honor it”. (Driver’s licenses don’t apply here for two reasons: 1. Driving on public roads is not a right and 2. The states have agreed amongst themselves to universal DL reciprocity .)

    Imagine getting a marriage license or building permit in one state and insisting some other state allow you to build or marry there based on your state’s permission slip.

    What this comes down to is: Concealed carry isn’t a right -it’s a privilege – so the Fourteenth Amendment doesn’t apply, thereby, I respectfully submit, making Kopel’s argument here invalid.

    I’m not saying concealed carry shouldn’t be a right – it most definitely *should* be. Until such time as it is considered a right, universal reciprocity can only be Constitutional via a universally agreed compact between states.

    What we *really* need to do is, instead of arguing over H.R.38, go on the offensive and spark a civil rights campaign to get concealed carry recognized as the right it is.

    Besides, the Concealed Carry Reciprocity Act of 2017 isn’t a “clean” bill. Go to https://www.congress.gov/115/bills/hr38/BILLS-115hr38rfs.pdf and Ctrl-F for NICS. the “Fix NICS Act of 2017” was added to make the whole thing more appealing to Democrats in the Senate in order to get over the 60 vote cloture threshold. The NRA likes Fix NICS, but GOA is willing to lose national reciprocity to kill it.

    and that’s all I have to say about that!

  • Peter January 26, 2018, 11:57 am

    Wait, did the final wording of the bill change? “The act would allow people eligible to carry a concealed firearm in their home state to carry in other states, as well.”

    That implies that you must be issued the concealed carry in your State of residence. I thought the Bill said that if you have a concealed carry (regardless of what State you live in nor what State issued you the CCW), every other State must recognize that as a valid CCW. Am I wrong?

  • davud January 26, 2018, 11:40 am

    i’m not so sure about that. there are a number of democrats and independents from red states who know they risk reelection if they vote against reciprocity: jones, heitkamp, donnelly, tester, heinrich. perhaps young, stabenow, bennet, nelson, peters, mccaskill. question is whether we can get the necessary nine.

    as far as the filibuster, the pendulum always swings and mcconnell is well aware those rules served the gop during the obama years.

  • Richard Escareno January 26, 2018, 11:15 am

    I believe National Reciprocity is good start in pushing back against anti-gun advocates like Feinstein, Shummer, Harris, Pelosi, Newsom, & Brown to name a few. It’s time for law abiding citizens to stand up & join the NRA & other organizations in helping them fight for your God given right to bear arms under the second amendment. We are the last bastion of hope of a free & civil society. Don’t let them disarm you.!

    • Kate May 18, 2018, 2:10 am

      I’m curious about a “God given right…” and what I think you’re suggesting is this “God given right” is the same as a Constitutional right. How could they be equivalent when the Constitution makes the lack of a role for any religion, any God, clear? God is to be separate from the discussion, writing, enforcing, etc of laws.

  • Irish-7 January 26, 2018, 9:33 am

    I support National Concealed Carry Reciprocity, provided there is NO “Fine Print” within the law that adversely impacts gun owners. I recently watched a video where Texas Representative Louie Gohmert warned of the negative side of the law as it is currently written. He is a long standing 2nd Amendment advocate, so if he opposed this legislation, there is something wrong.

  • Jay January 26, 2018, 8:20 am

    I still say the National Reciprocity Act will come back to haunt us! What is given by government can be taking away and or change on a whim. The ATF is a perfect example of that, what is today lawful is not lawful tomorrow! I just can’t understand how we let things get to this point. The Second amendment is clear, concise and to the point. No interpretation is needed. It reiterates, “The people, right to bear arms, and says Shall not be infringed.” Yet we have allowed it to be the most infringed upon human right!

    • Al January 26, 2018, 9:41 am

      And this is why Jefferson wrote about the “tree of Liberty” being refreshed with the blood of both Patriots and Tyrants.
      Remember, the Declaration speaks to the issue of peoples reluctance to throw off a Government “long established”, because they have grown comfortable with it, and allowed it to morph into that which it never should have been.
      The ATF was intended to be a regulatory branch, nothing more. Now it has armed people breaking down doors, or setting fire to compounds and burning citizens alive without due process.
      And several other branches have armed components too, even though the Feds aren’t supposed to be a Police force.
      And we did nothing. Because we have citizens who think the Feds know what’s good for us.

      • Jatt Law January 26, 2018, 2:23 pm

        Al, you hit the nail on the head. Excellent thinking and a great argument. Let me just add that the American public has become the frog in the boiling pot. I don’t think a revolution can be possible today. What Jefferson said about the tree of liberty is true, but I don’t think we have three percent of the population to support the idea. We have seen Waco, Ruby Ridge, the passing of the patriot act and the continuous assault on our rights.
        The frog (The American Populace) has just become accustomed to it and will remain that way until the boiling pot kills the frog.

    • Big John January 26, 2018, 10:42 am

      Jay, you don’t have to worry about that, the bill will NEVER make it through the Senate… and worthless Mitch McConnell doesn’t have the balls to use the nuclear option to break the log jam on this or any bill.

    • Kate May 18, 2018, 2:25 am

      Oh dear. You left out a lot of relevant text you might want to reinsert before continuing to focus on the simplicity. I know it’s important to get it right.

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