Dave Kopel: National Reciprocity Is As Constitutional as the Gun Control Act of 1968

Dave Kopel makes the case for the 14th Amendment’s support of a national concealed carry reciprocity law . . . Congress should use constitutional power to force states to honor gun rights

A few weeks ago, the House of Representatives passed the Concealed Carry Reciprocity Act of 2017 with bipartisan support. The Act would allow persons eligible to carry a concealed firearm in their home state to carry in other states as well. Opponents contend that the Act violates federalism. Actually, the Act is well within congressional powers under the Fourteenth Amendment. That Amendment was enacted specifically to give Congress the power to act against state infringements of national civil rights.

As we noted earlier, the 14th Amendment stance seems to be the primary basis of support on which the pro-gun side is making the argument for national reciprocity’s constitutionality.

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 Fourteenth 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.”

Oh, and there’s another civil right that the 14th Amendment happens to protect, too.

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 (2008), “the inherent right of self-defense has been central to the Second Amendment right.” Thus, the Amendment “guarantee[s] 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 Fourteenth 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.

But Kopel points out that there’s one more slick feature of the 14th Amendment underpinnings of national reciprocity. It puts opponents in a damned-if-you-do, damned-if-you-don’t bind since the Gun Control Act of 1968 was based on a foundation of regulating interstate commerce.

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 is also 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’s 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.

So even the most 2A-squeamish justices who might someday hear a case challenging a national reciprocity law would have to perform some intricate logical contortions in order to hold the law unconstitutional without also invalidating the Gun Control Act. Not that that’s ever stopped them before.