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.