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.