Is it right that sixteen million Americans with firearms licenses are effectively barred from traveling freely between the states? Should innocent citizens like Shaneen Allen languish in a New Jersey jail cell for daring to exercise a right purportedly guaranteed to all Americans, with her only recourse being to throw herself on the mercy of Chris Christie?
Robert VerBruggen, a Beltway writer who is the new deputy managing editor of National Review magazine recently wrote an article in which he answers this question unhesitatingly: yes.
Mr. VerBruggen acknowledges that there is indeed an individual right to keep and bear arms, and even concedes that a firearms license reciprocity law would be upheld as Constitutional, but still argues that the gun license reciprocity bills introduced by Representative Richard Hudson and Senator John Cornyn in Congress this year should be kicked to the curb, because states should be free to “work out on their own” how they’d like to restrict Americans’ exercise of a fundamental civil right.
To support his opinion, VerBruggen hangs his hat on the famous dicta written by Justice Scalia concerning theoretical limits on the right to keep and bear arms in Section III of the Heller decision, which has only a whisker’s more precedential value than the (admittedly interesting) law review article published by a young lawyer barely a year after graduation from law school that VerBruggen uses as another pillar of support for his arguments.
VerBruggen’s previous writing for The American Conservative was decent at times, uneven at others, and — perhaps unsurprisingly — he has repeatedly called for gun control measures in the past (“Universal background checks would help us hold people accountable for giving guns to criminals,” he wrote in January 2013, contemporaneously with the heroic battle that the gun rights community was engaged in against demagogues trying to eviscerate the Second Amendment in the wake of Sandy Hook.) His current article goes into La La Land early and, with one exception, never quite makes it back to the world.
After granting that the individual right to keep and bear arms is indeed protected by the Bill of Rights, he gives an apologia explaining why such a right can be overturned at will by the legislatures of the several states. He trots out old gun control lobbyist chestnuts without considering that their positions are factually wrong, and doubles down by opposing the law in the spirit of federalism. Consider:
Conservatives have traditionally held up federalism as an ideal because it minimizes conflicts, allowing different communities to reach different conclusions. That is not always possible, of course — sometimes Congress must protect constitutional rights against infringement by state governments; other times, it is impractical or otherwise problematic for each state to chart its own path. But neither justification for federal action holds here.
Now federalism is something that is quite dear to our hearts out here in the sovereign state of Michigan, but yelling “federalism” doesn’t give states the power to pick and choose which Constitutional Rights they intend to respect, and the federal government’s failure to step in and redress the balance when the states do so anyway is corrosive to all of our civil liberties. One would expect a writer at the nation’s premier conservative intellectual journal to appreciate the fact that a violation of liberties isn’t somehow cleansed of sin just because it’s done at a lower level of government.
When California piously refuses to recognize any other state’s firearms licenses save its own, while simultaneously denying non-residents (and a considerable number of their own residents) the right to obtain such a license in the first place, it’s effectively denying the core part of the right to keep and bear arms to all Americans who reside in the other 49 states, five territories, and one district.
The appropriate response here is not to throw up one’s hands and sigh that “states will be states, but can’t do anything because federalism,” but rather to jump in with both feet and insist that the Bill of Rights applies to all Americans regardless of geography, race, class, or national origin. We’re not talking about regulating mudflaps on semi trucks here (which, oddly, the Supreme Court ruled that states couldn’t do, either when it unconstitutionally burdened interstate commerce in 1959.)
Although it breaks my heart to do so, I could concede that a constitutional argument could be made for regulations on possession of firearms in certain locations, and perhaps even type of firearm to be carried (provided it isn’t in common use,) but the notion that a state has the power to systematically deny nonresidents the fundamental core of the right — which is to keep and bear a weapon — flies in the face of the very notion of civil rights, and, indeed, modern Second Amendment jurisprudence from the Supreme Court.
When people are being denied fundamental rights by the actions of a state government in such a wholesale discriminatory way, it is appropriate for the federal government to take action to protect their rights.
VerBruggen seems to reject this idea. Whether it’s because he’s philosophically opposed to the idea of an individual right to keep and bear arms, or because he prefers a form a federalism that existed prior to the civil war amendments is unclear; nevertheless, he is clearly content to leave the Second Amendment subject to the whims of legislatures in California, New York, and New Jersey. It’s, frankly, a terrible idea, and he should know better.
In fact, this article is so egregious that I hope I may be forgiven for adapting the famous words of the late Whittaker Chambers — an occasional National Review writer of the past:
Mr. VerBruggen’s voice can be heard, from painful necessity, commanding Shaneen Allen and other innocents who unwittingly cross the wrong state line: “To a prison cell–go!”
Because once the rhetorical veneer is torn away, what we’re left with is a defense of the power of the state to bar people from entering under pain of imprisonment because a powerful minority considers the exercise of their constitutionally-protected rights to be aesthetically offensive.
With that said, the part of the article about the Constitutional justification for firearms license reciprocity does say something new and interesting. VerBruggen cites a letter written to Representatives Richard Hudson, Justin Amash, and Trey Gowdy in March by “a trio of highly-respected constitutional scholars” — the libertarian legal scholar from Georgetown Randy Barnett, Chicago’s William Baude (a sometime blogger at the libertarian Volokh Conspiracy blog), and Duke’s Stephen Sachs, a former clerk for Chief Justice John Roberts.
In the letter, the trio criticize the firearms reciprocity bill introduced in the House for its reliance on the Commerce Clause, and instead suggest the novel idea that the bill should instead rely on the Full Faith and Credit clause instead.
Simply read the letter itself if you want to get into the weeds of constitutional theory. Suffice it to say, they do NOT suggest that the reciprocity bill would be unconstitutional under the Commerce Clause, just that the Full Faith & Credit argument would be a healthier path in terms of constitutional law, and supply alternative language for the bill. I’m agnostic on the issue, as I haven’t studied it in detail, but I do think that, pace VerBruggen’s breezy dismissal of legal scholar Dave Kopel’s views, the idea that a citizen’s travel between the states is properly construed as interstate commerce isn’t offensive to liberty or federalism in any sense.
My initial take is that if Justice Roberts’ opinion in the Obamacare decision is any guide, I like having more potential paths for the Court to find the reciprocity law constitutional than fewer.
Yes, I’m disappointed by VerBruggen. A conservatism dedicated to nothing more than a sterile federalism and the status quo to the exclusion of enumerated civil rights is a non-starter for me, and I suspect a non-starter for so many who went to the ballot box to ensure that a particularly odious enemy of those rights was sent home last November.
If you’re curious why the people who form the backbone of the GOP and the conservative movement — such as the millions of gun owners who came out in force in Pennsylvania, Michigan, Wisconsin, Florida, and other near-run states — are so disdainful of the Beltway-based conservative establishment, well, Mr. VerBruggen’s article is an additional data point.
Seems the left found their states rights again, funny as always
So we have a right to keep and bear arms but the states should restrict that however they see fit? I don’t remember that part of civics where state laws are superior to federal laws
Here’s a fun exercise change RKBA with voting, speech, press, healthcare or any other subject the left holds so dear and all the sudden you become unconstitutional and a racist nut job. Intercity minority groups riddled with gang violence aren’t allowed to protect themselves or their families, but that’s not racist since the government knows what’s best for them
Quick addition – Randy Barnett and David Koppel are both also Volokh Conspirators. I got to know who Koppel was from years of watching “Colorado Inside Out” with my late mother. She knew his father (a Democrat from Pueblo) when he was in the CO state legislature. That was long before David had made his name in 2nd Amdt jurisprudence.
One has to wonder how Mr. VerBruggen would see the application of states rights to the other rights contained within the BOR.
Can a state arrest someone for speaking in a way the state doesn’t like as the person crosses a state line? Can a person be denied counsel because they ain’t from ’round these parts? Do the states retain the right to search and seize property without a warrant because you don’t have the right license tag on your car? Perhaps a person from out of state can simply have their property taken without just compensation simply because they’re from out of state?
That last is true for seizure laws.
Are you speaking of civil asset forfeiture?
I don’t think you need to cross a state line to get snagged by that.
Take Hwy 113 north from Sterling toward Sidney and see if CO plates don’t get you pulled over and searched.
Oh, yeah with the other states looking for pot.
It’s never happened to me but I’ve had friends get stopped like that in both Kansas and Utah.
I guess that slipped my mind.
Cheyenne County Sheriff deputy pulled my wife and I over last June. Even after I handed my CHP to him, he made like he wanted to search my car. I smiled and said “I would prefer not to” which cracked my wife up and puzzled the deputy. He wasted 15 minutes of our time and then cut us loose with a “warning.”
The Democrats have always historically been big supporters of states rights, especially in the 1860s through the mid 1960s. The problem is that they are only interested in states rights when it serves their naked self-interest.
Consider the widespread support on the left for what is essencially reciprocity for same sex marriage. Whether marriage, same sex or otherwise, is a ‘right’ is arguable, and certainly it’s not an enumerated one.
The cognative dissonance on this is astounding viewed from that perspective. If federal enforcement of other civil rights is desirable, how could enforcement of this civil right via reciprocity not be a desirable goal?
“The Democrats have always historically been big supporters of states rights . . . when it serves their naked self-interest.”
Exactly. The Dems were no fans of states rights when it came to passing and enforcing the Fugitive Slave Act.
AFAIK, the right of same sex couples to marry was affirmed not on the basis of the existence of a right to marry, but instead on the basis of the 14th amendment due process clause. the fact of the matter is that marriage in the United States is completely controlled by the state; one cannot wed without a license, and one cannot wed without a the ministrant being licensed by the state. Divorce, and the separation of property, spousal support, child support, etc., or the rights of spouses on death of the other spouse, are all controlled by state law. Hence, the state must afford all the same “license” to marry as a matter of constitutional due process.
You don’t need a license to marry in Texas. There are some of other states with common law marriage. It’s a pretty small minority.
Your point remains though because you do need the state to recognize your marriage for it to have any legal effect.
I don’t see the point of the state institution of marriage. It’s a temporary union of two people freely entered into. I was taught that marriage is the union of a man and a woman, freely entered into, for life that is open to children. There isn’t a whole lot of similarity between the two.
National review went down the drain after WFB died. Their web site is crappy and redirects to ad pages. The writers all hated Trump.
I wondered just who they thought our choices were last year.
They though HRC would be so bad that 2020 would be a lock and that there would be a different GOP candidate by then.
Bill Crystal said as much.
And who is Bill Crystal? //sarc//
Shit, who is HRC? //sarc
That was their logic in 2012 because they were certain BHO was going to defeated.
I drifted away from NRO after last summer as they trashed Trump even after he was nominated. Buckley said you support people that can win with support even if you don’t agree with them on many issues because the alternative is usually worse.
He was right and despite DJTs issues we don’t have the traveling pants suit as leader.
WFB was a CIA “plant”…
States are subjected to the Bill of Rights and the Constitution as a whole. States can’t pick and choose which amendments of the constitution they will allow and which ones they will take away or restrict. As the rights within are guaranteed to all citizens of the US.
Just as Texas can’t restrict abortion which under SCOTUS is a protected right other states can’t restrict free speech or the right to bear arms. The founding fathers made no room for different levels of interpretation. This is what courts are doing now using strict interpretation on some and intermediate on others.
The union is made up of individual states, but there needs to be cohesiveness of laws to keep the states together and to protect the citizens from undue punishment under the constitution and rights guaranteed to us by god.
It was not always so. Rights have been incorporated against the states individually, not as a matter of Federal supremacy. As an example, the California Supreme Court held that there was no individual right to keep and bear arms under the California constitution, and the US constitution’s Second amendment was applicable only to the federal government. At the time, this was not unusual. It was not until McDonald v. City of chicago that the Second Amendment was officially incorporated against the states./
I think maybe we mak a mistake arguing for federalism as “States’ Rights.” Aside from the historical resonance, which I’m sure the anti’s love, it misses the point.
“States’ Rights” are people’s rights to be different.
People who like their R Vs and beer can collect one place, while people who’d rather hug a tree than climb one can collect another. The better response to Federal imposition is “Who are you to impose your preferences on other people? (People you’ll never meet?)”
Flip the argument: What’s worth imposing, over people’s objections? And the burden of proof: You prove it’s worth imposing vs. me proving anything. And the standerd: You prove your imposition is worth it. What I want is valuable because I want it. No threshold to meet.
This reframes the N J problem, too. Imposing on your own citizens is one thing. Imposing on people cromnstates with other precerences is you trying to govern them, is it not?
Maybe someone who never leaves the interstate should fine if they abide by their own state’s laws within their own car?
There’s a lot of rhetorical sleight of hand in the standard anti- arguments and phrasing. All that “Which argument?”, “Who’s burden?”, “What standard?” is assumed in the way it is said. It’s crafted.
The people doing the bleating didn’t think this stuff up. It’s too consistent, and they’re not nearly smart enough.
Indeed, the spokesthings are chosen to not look too smart … makes them better victims, and disarms opposition … you’d be the bad guy beating up on a struggling, overmatched mother. (Or brain injured gunshot vi tim. These people are shameless.) Just like with guns: “If we’re pathetic enough, nobody will.shoot us.”
My tinfoil hat wonders how many 2nd generation ex-pat German Nationalist propagandists Soros referred to Bloonie’s employ on this issue.
But, you don’t have to have a conspiracy. Fellow-enough travelers will self-direct into something that looks organized, but is rather just common responses to common programming.
The game is to muck with the programming.
States don’t have “Rights” any more than the Federal Government does.
They both only have powers delegated to them by the People.
The People are the only ones who have Rights — and, indeed, “People” includes any person, not only citizens.
That flips the whole discussion.
Some points I agree others I disagree but…
Give your comments a quick proof read before sending
Any person/statement/law/regulation that claims to support and defend the 2nd Amendment and includes the word “but” or “except”…does not!
I wonder how he’d feel if the federal government had let Mississippi “work out on their own” right to peaceably assemble or vote?
The hypocrisy of liberals never ceases to amaze me.
Screw her. Let her rot in the worst concentric circle of Hoboken there is. That’s what you get for voting Democrat.
“But….but…Jonathan…..she’s not FROM New Jersey. She didn’t vote for them!” Meh. Who cares? She voted Dem someplace and they’re all linked.
“But….but…Jonathan…..you don’t know who she votes for!” Sure I do. Or as sure as it’s possible to be without looking over her shoulder. Blacks vote Democrat by at least a 9 to 1 margin, even higher when the Dem candidate is black.
Bottom line: I’m not losing sleep over people caught up in the consequences of their own decisions. New Jersey sucks and that’s an issue, so change it. In the meantime, you did this to yourselves, albeit with varying degrees of complicity, if you have any involvement with Democrats anywhere.
Doesn’t matter what party she voted for. Doesn’t matter what her zip code is. She has human and civil rights that must be respected. Even if that means federal troops enforcing her rights at gun point.
Your way is enabling to the tyrants.
Is the word “right” that pops up in the Second Amendment and elsewhere in the Bill of Rights merely an empty label for rhetorical purposes? Are those rights nothing but privileges to be doled out by the powerful to the people deemed worthy?
If you want to go down that path, it’s your life. But even in your fantasy world of power politics, keep in mind that the 1:10 statistic that you cite still leaves 4 million American black people consigned to prison for exercising their rights that were otherwise innocent of the capital offense of pissing you off.
It’s probably closer to 9:20 who vote for Democrats. As best I can tell, just over half of people don’t vote. In mid-terms it’s more like 75% of people don’t vote.
The whole point of the BOR being applied to the states is that there shouldn’t NEED to be a national reciprocity law. A state should only be able to regulate either concealed OR open carry. ONE OR THE OTHER is covered by the “SHALL NOT….” portion. I personally don’t care which one a state picks but they CAN NOT REGULATE BOTH AT THE SAME TIME. You can’t have your cake and eat it too.
both concealed and open carry are covered by shall not be infringed.
notice there are zero exceptions to the wording by design.
states have zero rights or powers to infringe at all, they gave that up upon ratification.
fed government has zero rights or powers, hence the shall not be infringed part.
The first concealed carry ban was enacted under state law about 180 years ago, and any number of states concluded that concealed carry could be banned in the interest of public safety as long as an avenue to carry (i.e. open carry) was provided. Against the backdrop of these pre-civil War cases, multiple concealed carry laws have been enacted and approved by the courts, notwithstanding that the post-war laws were passed to prevent blacks from being armed. These cases are cited in Heller, and the same analysis was adopted by the Ninth Circuit when it concluded that there is no right to carry a concealed firearm. (that the analysis is bogus, as it does not account for the fact that all of those cases were decided under state law, not the Second Amendment, and that those cases were mooted by McDonald.)
I agree that the analysis in Heller of what can be banned is bogus. If you actually look at what was allowed to be banned under the common law, it was basically terrorizing people publicly. An example of terrorizing people publicly was terrorizing people publicly with weapons.
Also under the common law, it was common for travelers to carry concealed.
So states have a right to not have their citizens have Arms? Wow
And people in the establishment wonder why people like me listen to Micheal Savage, Tommy Sotomayor, New York City Guns, S.O.T.G., Tree of Logic and Alex Jones.
Nearly every media outlet in the 1990’s that was big is now dead only they don’t know it yet.
Well, up until McDonald v. City of Chicago, their right to do so was unchallenged under the federal constitution. And up until D.C. v. Heller, D.C had a handgun ban too. Now they no longer have the power to ignore the Second Amendment, but are bound to enforce the guarantee, a task that the courts in the ban states have been loathe to do, always finding some basis for concluding that impositions on the exercise of the right were justified under an intermediate scrutiny analysis–an analysis that more often smacked of the minimal “rational basis” analysis than anything else. The issue of bearing arms in public has reached the Supreme court on several occasions, and a case is now pending; however the Supreme Court has to date declined to address the issue. We should know Monday whether it will agree to here the case pending a petition for review, or whether we will need to wait for another day for the restoration of rights in the anti-gun states.
Intermediate scrutiny is probably best described as more scrutiny than rational basis review and less than strict scrutiny. The way courts apply it varied greatly even before guns got tossed into the mix.
I wonder if Justice Thomas will use case law examples of blacks being denied the right to carry guns??? He has done so in the past.
SCOTUS reasoning on “common use” is non-sense. It has no basis in the law. See “Dangerous and Unusual Misdirection” by Daniel Page.
I think the “jurisdictional hook” for national reciprocity should include the Commerce Clause, but the central argument should be Section 5 of the 14A. There is no good reason to not rest the law on a solid foundation of authority. Do I think the Commerce Clause has been stretched beyond it’s limits? Yes. I don’t think that binding your hands is a good way to fight. If you want the Commerce Clause to be properly interpreted, appoint judges who will do so. Having only the opposition use it won’t help anything.
The bill the authors of the letter propose would drastically weaken the law. The House Resolution, as currently written, would allow for the carrying of any handgun that isn’t a machine gun or destructive device with any ammunition in the magazine. The professors would change this so that a person would have to carry a handgun that complies with the laws of whatever state they travel to. The whole point of the law it to prevent travelers from have to figure out all of the laws of every state they go through. Under the proposed H.R., all the person would have to figure out is where he couldn’t carry.
Revoking the states sovereign immunity is necessary to give the law teeth. If the law doesn’t have teeth, then states like New York will ignore it just as they do FOPA.