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There’s been a lot of talk about the recently-submitted Concealed Carry Reciprocity Act and how it will benefit concealed carry license holders in the forty-one states that have constitutional carry or “shall issue” gun license laws. What hasn’t gotten a lot of attention lately is that the bill – H.R. 38 – also aims at bringing some relief to the people who live behind the ‘lead curtain’ in places like New York City, New Jersey, and Hawaii.

“Let’s face it,” UCLA Law Professor Adam Winkler, author of the 2011 book Gunfight, recently opined in Mother Jones, “tourists carrying their guns across state lines is not the biggest issue even for gun advocates,” Winkler says. “What they really oppose are restrictive concealed-carry policies in places like California, New York, and Maryland.”

The New Jersey Second Amendment Society appears to agree with Professor Winkler. In a press release issued last Wednesday, they said that under H.R. 38, Garden State residents would be able to carry a firearm in their home state under a non-resident license issued by another state, bypassing New Jersey’s “probably won’t issue unless you’re rich, powerful, or can prove that you’re about to be killed” firearms licensing scheme…and also the state’s magazine capacity limitations and ban on jacketed hollow points.

While I don’t agree with Professor Winkler that interstate travel for licensees is small beer (I, personally, would like to visit friends and family in California, Chicago, and Maryland without leaving my own firearm locked up,) H.R. 38 was carefully worded to allow its use as an end-run around the restrictive firearms carry laws applied against residents of northeastern and Pacific coast states.

The language seems pretty clear. Section (e)(3) of the bill states that the term “handgun” includes “any magazine for use in a handgun and any ammunition loaded into the handgun or its magazine.” So any place the bill refers to a “handgun” it’s also including the ammo and the magazine.

Section (c) states that “A person who carries or possesses a concealed handgun” (emphasis mine) “may not be arrested or otherwise detained for violation of any law or any rule or regulation of a state or any political subdivision thereof related to the possession, transportation, or carrying of firearms….”

This would mean, in theory, that a law-abiding licensed firearms carrier (or someone hailing from a Constitutional Carry state) could carry a concealed AR pistol with 30-round magazine loaded with jacketed hollow points while walking down the street in Morristown, New Jersey, and be good to go, as long as she was otherwise in compliance with the law (make sure you bring a valid government-issued photo ID).

The bill also avoids specific references to residency. I could only find four instances where it mentioned it at all:

  • In the preamble, it give its purpose as: “to provide a means by which nonresidents of a State whose residents may carry concealed firearms may also do so in the State.”
  • In § (a), where it states that reciprocity applies to persons who reside in Constitutional Carry states without licenses.
  • In § (a)(1), the bill says that it applies to States that have a concealed carry licensing regime for their own residents;
  • In § (a)(2), stating that the bill applies to States that do not prohibit the carriage of concealed firearms by state residents for lawful purposes.

Otherwise, the bill is silent about the state that issued the license and the residency of the person to whom it applies. It says that it applies to…

a person who is not prohibited by Federal law from possessing, transporting, shipping, or receiving a firearm, who is carrying a valid identification document containing a photograph of the person, and who is carrying a valid license or permit which is issued pursuant to the law of a State.

See what I mean? The language in consistently refers to “persons” and “licenses” issued by “a State.” It never specifies residency requirements one way or another, leaving open the possibility that a resident of a state like New Jersey could acquire a non-resident carry license from a state that gives them out freely to qualifying individuals (like, say, Utah,) and use that non-resident license to carry a firearm in their home state.

Would the courts sustain this? Well . . . maybe.

The text is pretty clear, and the comment about non-residents in the preamble can probably be disregarded. In footnotes 3 and 4 of the famous D.C. v. Heller gun rights decision, Justice Scalia wrote that “preamble[s] cannot control the enacting part of the statute in cases where the enacting part is expressed in clear, unambiguous terms…. [A] prologue can be used only to clarify an ambiguous operative provision….” Again, the law clearly refers to “Persons” and “States”, and makes no reference to any residency requirement.

Justice Scalia’s words on statutory interpretation, however, were written in reference to the prologue to the Second Amendment, “A well-regulated militia, being necessary to the security of a free State….” We all know how that prefatory statement has been ascended to the eleventh commandment by jurists and lobbyists who just don’t want to accept that the rather clear text that followed (“…the right of the people to keep and bear arms shall not be infringed”) means what it says. What you think a Court ought to do is not necessarily what it will do.

That isn’t the main concern, though; there are Constitutional issues to be worried about. H.R. 38 states that it is regulating firearms that have travelled in interstate or foreign commerce possessed by a licensed gun carrier. Congress has been granted the power to regulate interstate commerce in Article I § 8 of the Constitution, which is the constitutional authority for the law. The Supreme Court, however, has been backing away from its once-expansive interpretation of the Commerce Clause, and this might actually cause an issue here.

Currently the Justices most likely to take a favorable view of the Second Amendment (Thomas, Roberts, Alito, Kennedy) are also the same justices that want to reign in Congress’ Commerce Clause power. What happens if they’re forced to choose between the two?

Let’s set the wayback machine for 1995. In U.S. v. Lopez the Supreme Court struck down the Gun Free School Zones Act of 1990 (GFSZA). The act banned possession of firearms on or near school properties throughout the country. The Supreme Court kicked it to the curb because “possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, have such a substantial effect on interstate commerce.”

The GFSZA was subsequently amended by Congress. Instead of banning the possession of any firearm in a school zone, the Act now bans possession of a firearm “that has moved in or that otherwise affects interstate or foreign commerce” in a school zone. Several Appellate Courts have held that this small change was sufficient to make the Act constitutional, although the Supreme Court has not yet weighed in on the matter. The Concealed Carry Reciprocity Act appears to borrow this language where it says that the bill applies to handguns “that ha[ve] been shipped or transported in interstate or foreign commerce….”

Lopez was actually a landmark case. It represented the first time since the New Deal that the Court had given any pushback to Congress’ Commerce Clause power. Those who wanted to limit the Commerce Clause and those who wanted a more robust Second Amendment were on the same side in that matter.

Since the appointment of Chief Justice Roberts, the Court has continued this skepticism toward the Commerce Clause power, notably in the 2012 Obamacare decision where the act was generally upheld, but the individual mandate was struck down as being an improper use of the Commerce Clause power. It’s not clear to me, for instance, that the fig leaf amendment included in the GFSZA would be upheld by the Roberts Court today, and that would have troubling implications for H.R. 38.

For its stated purpose — allowing licensees to carry firearms when they travel outside their home states — the bill would probably work. If a licensed Pennsylvania resident travels to New Jersey while carrying a firearm, both the firearm and the person clearly fall within the stream of interstate commerce. Even if the gun had been manufactured in the Keystone state from parts made 100% within Pennsylvania, it definitely traveled in interstate commerce when its owner carried it across the Delaware. If a citizen physically crossing a state line isn’t the purest definition of interstate commerce as conceived of by the framers then, literally, nothing is.

But what about a New Jersey resident who has never left New Jersey, but buys a GLOCK and carries it with a Utah license inside the Garden State?

He’s personally not in interstate commerce. But is the fact that the gun was imported from Georgia or Austria sufficient to give Congress clear power to regulate its carriage completely within its owner’s home state? Is that sufficient to allow Congress to regulate some Jerseyite who walks down the block from his house and just stands around gawking at the purple house in Haddonfield’s historic district, never crossing a state line along the way?

Will the conservatives on the court choose to favor liberating the people of New Jersey from their state’s infringements on the Second Amendment over rolling back the Commerce Clause? If they don’t, would the entire act fall, or just the notion that a state resident could use it to get around his own state’s carry laws? Further, even if the whole kit ‘n’ kaboodle was upheld, do we really want the court to stop being skeptical about the Commerce Clause?

As my old contracts professor was fond of observing, “a pig that becomes a hog gets slaughtered.”

Maybe it would work out. We’ve certainly lived with an all-encompassing Commerce Clause for most of my life. I’ve a hunch that empowering the people on the micro level would do more to strengthen the Constitution and the moral fiber of the Republic than tinkering with the precise limits of Congress’ [already quite expansive] power to regulate the lives of the citizenry.  But that’s all it is — a hunch.

This is definitely one of those ‘proceed with caution’ moments.

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  1. Meh. I’ll let others test it out in terms of how the law actually shakes out and in terms of letting NYPD, COD, LAPD etc calm down a bit.

    I don’t really feel like getting holes in me courtesy of DeBlahblah’s thugs who “weren’t properly retrained for the new legal reality” and end up shooting me and a dozen other people.

    • As much as I hate government issued permission slips, this a fairly large step toward bringing the Bill of Rights into states that have been allowed to ignore it far too long.

      I had relatives from Missouri visiting last weekend. They had to disarm before they crossed the Mississippi. When I visit them, I can carry anywhere. That just ain’t right.

        • Actually that depends. I hale from NY but live now in the wonderful state of Illinois. I can carry in half of the I-80 states and transport even through NJ (as long as I dump the hollow points from my Sig) but since I’m visiting my sister in NY, I’m no longer “transporting,” as I have a destination/stop in NY. So, on my last trip, I was unarmed and unhappy about it.

        • Actually that depends.

          I assume he’s referring to the section of Illinois’ law which allows non-residents who are allowed to carry in their own state to carry in their vehicles in Illinois, not the federal transport laws.

        • To what Illinois law do you refer? Unless you have an Illinois CCW license, having a loaded firearm in a vehicle is a violation of the “UUW” section of the criminal code. Doesn’t matter what state you’re from as Illinois doesn’t recognize any other state ccl. Your only choice is to “transport. “

    • Wouldn’t need it at all if people demanded that government abide by the restraints placed on them via the second amendment. I refuse to ask permission and pay a tax to excercise a right I already have. Name any other protected right I must do that for and I will get in line, otherwise no sale.

      • The practical limitation of this noble position is that it doesn’t actually move the ball forward. In essence, those PotG who espouse this view are threatening: I won’t budge from my principled position until legislatures change the law to suit my opinion. I’ll sit here and hold my opinion until I turn blue or get my way.” To which the blue State legislatures respond: “Go ahead! Turn blue.”

        We need to find every way possible to gain each square inch of ground in this battle over rights until our opponents surrender. Our real target is the mass of voters who elect legislators and executives; and the judges that need to maintain some sense of the will of the People.

        I think we need to find those cases and arguments that are apt to be most appealing to voters, and therefore their legislators. The very best example is interstate truckers. They are acutely vulnerable without guns. And, they enjoy a degree of trust. Do you worry about the 18-wheeler running alongside you at 60 mph? No, then why are you worried about the gun in his cab? Don’t you know that that lady has to wait in her cab for hours outside a loading dock to deliver her cargo?

        With each step forward we make the public in the blue states gets a little more comfortable with the idea of more non-cops carrying. If the voters in blue States believe that marriage licenses for gays deserve full faith & credit in 50 States then it follows that CWPs issued in the other 49 States need to be honored in their State; if only to residents of those issuing States. Once this is acknowledged, then a NJ resident with a PA License to Carry Firearms is only a small incremental step. A NJ resident can easily establish a pretext to claim dual residency in PA (or FL or DE). Eventually, so much of the blue States remaining ground to prohibit carry will be legislated away that they will cave in.

        • How do you establish Dual residency? I thought that was not legal and one state needed to be the primary residence? I recently moved back to NJ from PA and I have a PA concealed carry permit issued in Lehigh County. I am in the process of getting ready to change my DL back to NJ and I am trying to figure out a legal way not to lose my carry permit.

  2. Stop. Just stop. The damn thing isn’t out of committee yet and we’re acting like trump signed it yesterday. There is absolutely zero guarantee this passes in anything even resembling it’s current form. For further study, see the death of open carry yet again at the hands of ‘pro gun republicans’.

    • Even if it passes in “perfect” condition it will still be fought by the various states anyway. It will takes years before carry is legal and wise in some places.

      • It won’t pass. The only chance for it to pass would be an addition of some draconian amendments, so that NJ or NYC could be exempt. I think it would be much easier to add amendments that allow individual cities to opt out, rather than entire states. And if that happens, I’m sure 8 out 10 towns in NJ will sign up. Unless there’s a large population minimum. But yeah, let’s say it does pass as is, a handful of states will fight it and it will take years before anything is resolved. And even then, I wouldn’t be surprised if SCOTUS sided with cities / states as it has in the past regarding gun rights. IIRC, SCOTUS refused to hear the justifiable need requirement appeal last year. That may very well be used again to deny residents permits to carry.

      • It is flat out delusional to talk about a bill not even on the floor as if it has already passed. This is no different than the people talking about what happens when hillary wins.

  3. Even if this happens on a Federal level it will never see the light of day in New Jersey. It’s been more than fifty years since the Sills Act passed in N.J., limiting people’s ability to carry, and putting the onus on local law enforcement to first vet the legal potential gun owner before getting a purchase ID card, which is required to purchase a firearm. Background checks are again conducted at the time of sale, and the process is not Federally controlled but managed by the NJSP. There isn’t a chief of police in the state (more than 500) who thinks concealed carry is a good idea, and the Super. of the NJSP is against concealed carry as well. True, law enforcement doesn’t make the laws, but they abide by what the AG tells them is law. New York’s Sullivan Act stood the test of time for more than a century. It’s still in place, bolstered now by the heinous SAFE Act. New York will never entertain national reciprocity. New Jersey will never see a concealed carry law either. Only the privileged, judges and law enforcement are entitled to such a right in New Jersey.

    • Federal law Trumps state law,period. Someone will undoubtedly have to fight the issue in court in the beginning…but no matter what acts the state has in place, they simply can’t tell the federal government to piss off.

      • You mean how it took the Supreme Court to rule that ‘shall not be infringed’ means ‘shall not be infringed’ 200 years after it was written and it still isn’t followed? Oh wait…

    • I’ve been saying for a while that if NJ cops were pro-gun, pro-2A in general, they (police chiefs) would encourage people to apply for carry permits, even though the judges would deny every single application. This would put a lot of pressure on NJ politicians to actually do something about it and perhaps make carry laws less restrictive. But, the cops are happy with the way things are and I’ve never heard any of them encourage people to get FOIDs, let alone apply for permits to carry. There’s a reason NJ requires pistol purchase permits, an onerous requirement in itself, while the state police takes 3, 4 or 6 months to approve them (law says it should take 30 days max but who cares about that, right?) Even if national reciprocity were to pass, the next governor of NJ will be a Democrat, the majority of politicians will be Democrats. There’s no way they’ll just accept it without spending millions to fight it.

    • Agreed. I hate to be a naysayer but aren’t most conservatives strong proponents of State’s rights. And don’t States have the right to regulate what happens within their borders. New Jersey DOES NOT have a clause in the State Constitution recognizing the right to bear arms. In my opinion, the only way that NJ, NY/NYC and states like them become true carry states is if the SCOTUS affirms the Second Amendment in an unabridged form as the law of the land. Even then, NJ will never give up finding ways to relitigate

  4. Someone better inform those ill-trained cops on NYC and Los Angeles that it’s legal to resist unlawful arrest with equal force. So, after a few cops get blasted out of their shoes with no convictions to show for it…I bet they start living and letting live. Anyone who would take that job in libtard cities in the first place has issues to begin with.

    • Cops don’t take kindly to “cop killers”. Anyone who successfully fends off the initial (illegally) arresting cop and flees faces an extremely high probability of an extrajudicial execution when that first cop’s partners (in crime) catch up.

      Unless that person was unidentifiable, they probably will not be alive to go to court and win.

  5. Question: “Will the Concealed Carry Reciprocity Act Liberate New Jersey Gun Owners?”

    Answer: No, national reciprocity of “licenses” and “permits” for the privilege of carrying a gun is a Trojan Horse and a trap, which if passed in any form will lead to a centralized system of federal control over guns and the people who own them.

    If “national reciprocity” (whatever that means) or anything like it even comes close to passing in Congress, NRA, Inc., will stick their dirty snout into the bill in collusion with the anti-gun police unions just as they did in Illinois’ 2013 concealed carry bill, and you will end up with a Frankenstein monster devouring what rights you have left, wishing for the “good old days” back when states issued their own licenses.

    Will the baby boomers and old farts ever give up on their pipe dreams of white America and watch what NRA does, not what they say? The Ringling Brothers, Barnum & Bailey Circus just went out of business, but the childlike veneration of corrupt institutions like NRA, Inc. marches on as we speak. Step right up and try your luck! Ring the bell (with a hammer made out of balsa wood) and win a prize!

    • There should be NO licensing of a constitutional right, PERIOD. If you are too dangerous to own a firearm you are too dangerous to be out in society. Euthanasia is NOT without its positive side.

      • I think Demo Man just has a functioning memory regarding Illinois and a good grasp on what kind of grease initially starts a slippery slope.

        Once the Feds get their foot in the door with national reciprocity, they will eventually want to “streamline” and “improve” the process. And they’ll never leave your house again. Ever.

    • Julius- you see what I’m dealing with in Illinois. Trying to debate questions of Constitutional law and separation of powers with the clowntards from southern Illinois is like trying to teach the monkeys at Lincoln Park zoo to speak English.

      What basically happened in Illinois’ 2013 carry bill is that the 95% of NRA members who live in all-white small towns south of Joliet were more than willing to use blacks like Otis McDonald from the south side of Chicago for a lawsuit, then flush them down the toilet in Brandon Phelps “NRA backed” carry bill with Duty to Inform and a public transit ban, because they think this stuff will never affect them personally. You are not dealing with mental giants here. We’re talking about Larry the Cable Guy types living in trailer parks.

      The hicks get their “information” from people like Richard Pearson, “executive director” (they love those self-important Freemason style titles) of ISRA (IL state rifle association, the state tumor of NRA) Pearson puts out press releases from ISRA World Headquarters in Chatsworth, population 500 people plus a grain bin, telling the clowntards how “our bill” is “shall-issue.”

      Right now there are over TWO THOUSAND people waiting for their carry licenses from the IL Concealed Carry Licensing Review Board, because some cop objected to their app anonymously.

      Meanwhile as we speak, NRA state lobbyist Todd Vandermyde is trying to legalize suppressors in Illinois. Priorities are important to NRA. Watching the inbred hicks from Illinois struggling to understand complex legal concepts like national reciprocity is like watching a pack of retarded pygmies attempting to play football with the Bears at Soldier Field.

      That’s why Pearson and ISRA screwed up the Friedman v. Highland Park “assault weapon” lawsuit. Dealing with the U.S. Supreme Court is at least four or five levels of comprehension above their abilities. Pearson is an insurance salesman in real life.

  6. Empowering the people by virtue of 2A is very different from restricting the power of the people by virtue of the Commerce Clause.

    It is logically consistent to be in favor of the former and opposed to the latter.

  7. When you can sue Lorraine or Loretta Weinberg, I don’t remember the name, and take her paycheck for violating your civil rights, only then will things change in the state of New Jersey.

    Also Stephen Sweeney or any mayor or city council person. Take their paycheck and then will things get better for NJ gun owners.

    NJ politicians will defy federal law just like Virginia and Alabama did in the 1950s over desegregation.

    • If New Jersey defies Federal Law in this case, I think we’ll see a Federal version of Bridgegate carried out by the Sessions Justice Department.

      If I recall correctly, the Delaware River Port Authority is controlled by Congress.

      • No. DELPORTS is a joint creation of Pa. & NJ similar to the NYNJ Port Authority. The only Federal tie-ins are in regard to Customs, Immigration, Coast Guard & Homeland Security. The operation is entirely in the hands of the states.

      • This is an excellent point. As long as the US AG didn’t care about racial segregation, lynching and denial of voter rights in the South then the South could continue to maintain its “peculiar institutions”. Conversely, when the US AG and his brother, the Commander in Chief, took an interest in these “purely local” social institutions, change happened; and in fairly short order. An argument could be made that the threat of a forceful reaction (e.g., by the Deacons for Defense and Justice) might break out was a motivator that finally reached the AG and president.

        Today we have a new president (who carries). Tomorrow, we will have a new AG. If we can get the right legislation out of Congress we will have most of the needed tools. The AG could pursue Won’t-Issue for violations of Equal Protection in discriminating against non-residents in issuing non-resident permits. The AG could investigate just who it is who is found to have “justifiable need” for a CWP; and how these few can be objectively differentiated from the unwashed masses in their same States.

        An easy course of action would be to attack all the States that refuse to issue Non-Resident permits. DE won’t honor my PA License-to-Carry but won’t let me apply for a DE permit because I’m not a resident. How can this stand under an equal-protection clause in the 14A. The courts ought to strike it down just like Heller and McDonald did on an absolute ban. Such States as DE will be easy; because they are practically Shall-Issue for their residents. NJ and MD would be harder; but such States will have a hard time justifying how politicians and donors get carry permits whereas citizens in neighboring States under comparable circumstances can’t get permits. Not being members of the NJ body politic, we have no recourse other than to the US Constitution; and equal protection is a great vehicle. These States will have to either see their practice of issuing to politicians and donors aired in Federal court or they will have to become Shall-Issue to non-residents.

        I agree that the Feds have far too much power over the internal affairs of the several States. Nevertheless, that’s the way things are in our “federal” system today. Pushing gun-rights under the right US Constitutional pretexts is apt to be a good way of both reestablishing gun rights AND getting the Progressives to back-off making the Feds the universal solution to which corners need stop signs.

  8. My guess is that states that hate freedom will arrest anyway and force victims to use the bill as an affirmative defense. The NYSP, for example, regularly ignores FOPA. Victims are ultimately cleared of wrongdoing, but not before going to court and spending massive amounts of money.

    Yes, this bill has teeth. But do you think a money-wasting state like NJ cares about that? They would gladly rough people up, imprison them, and pay the civil suit afterwards. They’ll even hike up gas another 23 cents just to pay for it.

    The only thing that will cause slave states to abide is criminal penalties for any wrongful arrest. But we can’t do that because They’re Just Doing Their Jobs ™.

  9. Even if a firearm or its owner never leave their state of residence it is highly likely the ammunition carried in that firearm was manufactured in another state and imported for sale. Hence Commerce Clause is valid. If any State decided that this was a neat point to allow them to ignore the reciprocity all the firearms owners would have to do is ensure that they only used out-of-state ammo.

    • Cliff H,

      It is a near certainty that the steel and polymer that a firearm manufacturer uses to manufacture a firearm came from out-of-state. Thus, it is a near certainty that every single firearm is a result of interstate commerce. Now, whether or not that means Fedzilla can mandate that states accept firearms is a different question.

  10. If this bill ever becomes law, we win no matter what happens:
    — If no one ever challenged the bill in the courts and it is the law of the land, we win.
    — If someone challenges the bill in court and the U.S. Supreme Court upholds the law, we win.
    — If the U.S. Supreme Court strikes down the law, then they also have to strike down the federal Gun Free School Zones Act and we win.

    • Not exactly. The GFSZA won’t be before the court- just the extension/reasoning. So you’d have to challenge the GFSZA and reach Supreme Court, under the reasoning that it was invalidated by their interpretation of the commerce clause. If for whatever reason the case DOESN’T reach them, or even worse, they don’t like you- they can either reject the case, or find some way to distinguish it.
      The point is, it SHOULD invalidate the GFSZA, but it’s not a GUARANTEE.

      • I agree. In the next 4 – 8 – 12 – 16 years we should – hopefully – make a lot of progress with the judiciary. However, we should not expect that Trump will get a 2’nd Justice nomination to SCOTUS in the next year or two. Nor can we count on getting a case to SCOTUS in the next couple of years. Nor can we count on winning that case. The judicial route is a long and expensive road. We must try to travel this road; it’s just not going to be quick.

        We need to take advantage of a sympathetic president and AG with a Congress, both houses of which, are in the hands of the president’s party. We need to get as many gun-rights laws in place during this opportune time.

        Then, either the States try to challenge them; or they don’t. If they don’t, we spread the idea of gun-rights into the blue States. Once the voters in the blue States realized that there are guns in the town square but no blood in the streets they will gradually accept gun rights. If the blue States try to challenge the constitutionality of well-crafted Federal legislation then they will eventually loose in a Trump nominated SCOTUS. These decisions will be difficult for later Progressive judges to buck.

  11. Rather than counting on this law, a non-resident should challenge the laws of states like New Jersey on a much simpler and much more powerful interstate commerce basis: the idea of the traveler who is conducting business in another state. Travelers who go to other states to conduct business need to know that they can travel to those other states without interference. They must be able to purchase food, transportation, and lodging without discrimination. They must also be able to protect themselves without discrimination. That would be a legitimate application of U.S. Constitution’s interstate commerce clause.

    Of course a much simpler approach is for fedzilla to simply enforce the Second Amendment via 18 U.S. Code Section 242 Deprivation of Rights under Color of Law. After the Governor and all subordinates all the way down to the arresting police officer go to prison for 10+ years and have to pay fines of thousands of dollars from their own money, they will stop their illegal arrests, prosecution, and imprisonment of non-residents who are armed as they travel.

    • Absolutely correct. Any Federal legislation needs to have teeth. Our gun organizations need standing to sue States for violations. Defendants who prevail need to be able to recover damages and attorneys fees.

  12. Democrats in NJ will simply remove the laws allowing the issue of concealed carry licenses and the likely democrat governor that follows Christie will sign it. That law may eventually be overturned by the courts but NJ will buy several more years of denial while it works its way through the courts.

    • That’s a strategy that can be countered. After IL was forced to adopt a CWP scheme by its Circuit court it’s not clear that this will fly. Likewise, DC.

      If IL were to do so then they would have to revoke all the outstanding permits to politicians; donors; armored-car drivers; on-premises employee security guards. Who will then remain to guard the men-of-means? Answer: retired cops. We can ask Congress for a change in the LEOSA law to restrict retired cops to their exemption only while not working for others. The justification for LEOSA is to allow retired cops to defend themselves against dissatisfied customers, not to give them a commercial license to carry in blue States to guard men-of-means and their money.

      I doubt if NJ and similar States can pursue this route successfully if Congress, the President, his AG and the Courts are willing to support the 2A.

  13. Just a quick correction on this: “can prove that you’re about to be killed”. The sentence should read “can prove that have been killed”

  14. It’s an abuse of the commerce clause to even discuss it in this connection. The clause did nothing but make the federal government a referee to make sure the states didn’t wage economic warfare on each other, period.

    Nor is a tortured commerce clause necessary. Just look at the ratification debates for the Fourteenth Amendment: one of the major purposes was to make sure that the Second Amendment applied to all citizens, most specifically to those black citizens in the south who were then being deprived of arms under a “state militia” misinterpretation of the Second Amendment. All that’s necessary is to say that the original intent of the Fourteenth Amendment was to extend the protection of ALL rights, but especially the Second Amendment, to ALL U.S. citizens regardless of place of residence or what jurisdictional lines they crossed.

    End of argument, end of state power, end of all interference. Of course politicians aren’t terribly interested in that, because it would also mean the end of all taxes and fees on all weapons and their accessories.

    This janking around using a misinterpretation of the intent of the Constitution is hypocritical. We need to stop playing lawyer games, strip away all the built-up crap, and go for the throat.

    Sadly, given his history, I doubt Trump’s new justice pick is interested.

    • I agree. The commerce clause is a sound basis for a couple of narrow classes: truck drivers; and, those who must travel across State lines for business. The farther beyond these extents we try to stretch commerce clause the more vulnerable it is to being overturned.

      The 14A would be a very strong ground upon which to base Federal legislation.

      Likewise, Congress’s power to “arm” the militia. Today, a militiaman may hear and feel compelled to reply to the hue and cry: “Stop Jihadi!” How confident are we that a member of the unorganized militia will be willing to carry in order to perform his duty in such a scenario? Perhaps he lives in one of the 40 States where he has a right-to-carry; but what if he is in one of the 10 States where his right-to-carry is defied? What if he is resident in a RtC State such as PA but happens to be in a NO-RtC State such as NJ when he hears the hue and cry? Unless the militiaman is empowered to carry to perform his duty, he is impotent. May NJ, by defying the 2A, deprive the Federal government of effective on-the-spot response of its militia within its jurisdiction?

      We need to be more creative in finding scenarios and applicable Constitutional pretexts to authorize Congress to restore 2A rights. The pretext that Colt manufactured a gun in CT and shipped it to PA where I bought it is much too thin to be relied upon.

  15. “If a citizen physically crossing a state line isn’t the purest definition of interstate commerce as conceived of by the framers then, literally, nothing is.” If I were a judge trying to strike-down a gun-liberty law then I’d have no difficulty finding the “impurities” in such a scenario.

    I live 2 miles from the NJ line. I might go to NJ merely to walk their canal tow-paths because they are better maintained than those in PA. There is no commerce involved at all. Or, I might go window shopping; but get arrested before I arrive; or on my journey back having bought nothing. Or, I might buy and consume food in NJ. No problem disagreeing that there is interstate commerce occurring there.

    I think that we all ought to be very concerned with the constitutional pretext used to justify Congress legislating on gun rights. First, we shouldn’t want Congress to legislate any more than absolutely necessary about guns withIN a State. Keeping the Feds in as narrow a scope as possible serves us long-run. We want Bloomberg to have to fight us State by State. When Alaska and Wyoming fall then the 2A will truly be dead; not one State before this bitter end. Second, we should expect that the last 10 or so jurisdictions will defy Federal law keeping gun carriers tied-up in local courts and appeals as long as possible.

    State judges and Circuit judges are going to be reluctant to find a Federal law unconstitutional IF-and-ONLY-IF the Constitutional power for Congress to legislate is clear-cut. The best case is to focus on truck-drivers carrying cargo across State lines. Moreover, voters will recognize how vulnerable these drivers are; having to park in rest stops or outside freight yards. The connection to interstate commerce is unassailable. Congress also has obvious power to “arm” the militia; e.g., men of militia age could be authorized to carry openly. After all, a member of the unorganized militia might be outside his home state when he hears the hue and cry: “Stop Jihadi!” Under the 14A, Congress has explicit power to legislate to uphold equal protection of the law. However, in contrast, neither the 2A nor the full-faith & credit clauses say anything about Congressional power to legislate to enable these clauses to be effective.

    I think we ought to do whatever we can to frustrate Progressive prosecutors and judges from trying to push back on Congressional gun-rights laws. We ought to advocate for a number of distinct protections each with a direct relationship to a Congressional power. Then, add a blanket protection that attempts to cover the gaps between the distinct protections. Hopefully, prosecutors and judges won’t attempt to pursue those carrying under the broad blanket (with a vulnerable Constitutional pretext) if they recognize that 1/2 of carry is covered by one or another of very well-founded Constitutional pretexts.

  16. The comments about the eighteen wheelers says it pretty much. Do you think they stop at a state line and leave their protection there till they come back thru? Nuff said. Too much worry about nothing.


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