By Roger Katz
The Arbalest Quarrel has been at the forefront in the call for national concealed handgun carry reciprocity legislation. Posting our first article on the subject in 2015, in our “Roadtrip with a Handgun” series, we have remained a strong proponent of national concealed carry, and have since published two dozen articles on the subject.
We were very pleased when the Republican controlled House at long last passed their version of national handgun carry. But that was almost one year ago. The House bill is titled, “Concealed Carry Reciprocity Act of 2017,” 115 H.R. 38.
The House immediately sent the bill to the Senate for consideration. But there has been no action on it to date. It has been sitting idle in the Senate Judiciary Committee ever since. That is unacceptable. Millions of American gun owners want it, need it, and have the right to have it.
We cannot wait any longer because once a Democrat majority takes over control of the House on January 3, 2019, we will likely never see it. The measure would have to be brought up in the House once again in the new Congress. It would then have to be voted on, and passed and that won’t happen—not under Speaker Pelosi.
The Democratic Party leadership that will define the measures to be taken up and voted on by the full House has no desire to strengthen the Second Amendment.That is not part of the party’s agenda. Indeed, their goal, for decades, has been remarkably consistent. The aim of Democrat leaders is to weaken the Second Amendment to the point that the fundamental right set forth in the Second Amendment ceases to have any practical effect.
It is therefore imperative for the Senate to bring the current House version of the bill to the Floor of the Senate for a vote by a full complement of Senators. The Senate would hopefully then pass the bill, and get it onto the desk of the President Trump for his signature. There is still some time, but the Senate must act now, without further delay.
National Handgun Concealed Carry Reciprocity Would Be a Good Thing; a Rational, Positive Step Forward.
A few readers have argued against passage of national handgun carry reciprocity, asserting the right of the people to keep and bear arms—as one of our fundamental, inalienable, and natural rights—rests beyond the lawful control of government to regulate. If so, this would mean that present federal, state, and local government regulation of the exercise of the right is invalid, and unlawful.
That view is understandable. The Arbalest Quarrel hasn’t been unmindful of the issue whether government can legitimately regulate our fundamental, natural, enumerated rights.
The tension between governmental power on the one hand and the rights and liberties of the people, on the other, was, in fact, a focus of attention for the Founders of the republic. They came to an understanding, if guardedly and grudgingly by some, that, for the fledgling republic to exist and persist through time, it would be necessary to establish a strong national government.
But, having thrown off the yoke of oppression created by one autocratic ruler, the founders, who met at the Constitutional Convention in Philadelphia, in 1787, had no desire to draft conditions, albeit unintentionally, that would allow for imposition of yet another such ruler, this one of their own making.
The answer for the Framers of the Constitution, referred to as anti-federalists, was to place an express Bill of Rights into the Constitution, to protect the rights and liberties of the people. The anti-federalists saw inclusion of a Bill of Rights as necessary to curb a tendency of a national government to exercise and accumulate ever more power at the expense of the people to whom that government was, after all, designed and expected to serve.
The federalists were opposed to this idea, but not because they were against securing fundamental rights and liberties for the people. Rather, they felt that a Bill of Rights was unnecessary and redundant, as the power and authority of a central Government would be express and limited. Everything else—rights, liberties, powers—would reside in the respective states and in the people.
Further, the federalists felt that, by placing emphasis on a formal Bill of Rights, that would obscure the need for creating an effective and efficient government that could provide both national security and strength, and, at once, promote liberty. But, we have seen how this has played out 200+ years later. Thankfully, the anti-federalists’ demand for inclusion of a Bill of Rights in the Constitution prevailed over the federalists’ objections against such inclusion.
The federal Government has indeed, through time, become very effective and efficient in amassing unbridled power, along with securing, for itself, extraordinary levels and layers of secrecy, even as the American citizenry, conversely, has lost its own fundamental right to be free from unlawful Government searches and seizures.
But, is there any statement in the Constitution prohibiting Government regulation of fundamental rights, as some readers assert? Let’s look at a few clauses.
The “Necessary and Proper Clause”
Article 1, Section 8, Clause 18 of the Constitution states in part that Government is “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers. . . .” This clause would appear to be an express limitation on Government regulation, certainly of the enumerated rights, as set forth in the first eight Amendments, apart from the unenumerated rights referred to in the Ninth and Tenth. If so, the “necessary and proper clause” does restrain federal Government regulation of the Second Amendment and of other fundamental, enumerated rights of the people.
The “Supremacy Clause”
Article 6, Clause 2 of the Constitution states in part, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land. . . .” The “supremacy clause” is essentially an assertion of federal preemption. The idea alluded to is that the Constitution, acts of Congress, and treaties are the Law of the Land and are subordinated to no other laws. But, contrary to some views expressed, the supremacy clause is not an assertion of the sanctity of the Bill of Rights, beyond the power of Congress to regulate. In fact, at least some antifederalists were much concerned about it, fearing the clause would give the federal Government too much power over the States. Yet, it may also be argued, that the supremacy clause implies that the enumerated rights set forth in the Bill of Rights are—since an express part of the Constitution, along with the Articles—well beyond the power of the federal Government to lawfully regulate. In that respect, the supremacy clause serves to contain and restrain Government regulation of the citizenry’s fundamental, enumerated rights.
The “Commerce Clause”
Article 1, Section 8, Clause 3 of the Constitution sets forth the power of Congress “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” National concealed handgun carry reciprocity does implicate interstate commerce, but whether Congressional power to regulate the carrying of a firearm across State lines amounts to an over-extension of the commerce power, at the expense of the States, will require further review by the U.S. Supreme Court.
What Will Happen When National Concealed Handgun Carry is Passed by the Senate and Signed into Law by the President?
Were the Senate to pass national concealed carry reciprocity and the President to sign it into law, it would be an odd thing, indeed, yet possible to see anti-gun groups and some pro-Second Amendment groups both opposing the law. Yet, both sides could do so, albeit each for its own reasons, both claiming Congress had gone beyond its authority to regulate firearms’ possession.
However this might play out, the Arbalest Quarrel feels that, given the myriad antigun laws already enacted, there would be far more to gain from having this one, at this moment in time, than not. National concealed carry reciprocity would serve as a significantly pro-Second Amendment federal law to counter the plethora of state and federal laws that limit citizens’ gun rights. Still, we understand and respect such misgivings some pro-Second Amendment people may have on the matter.
Roger J. Katz has practiced law for the federal Government in Washington D.C., for the State Government in Arizona, and has been in private practice in Ohio, New York, and Arizona. Roger is a co-founder of Arbalest Group LLC, creator of the Arbalest Quarrel weblog, dedicated to strengthening the Second Amendment, preserving our Bill of Rights, and maintaining a free Republic.
This article was originally published at arbalestquarrel.com and is reprinted here with permission.