Status of national reciprocity?

[carguychris]

Originally Posted by motorhead0922

A word of caution: If this bill is passed and signed into law, what then? Here's a possible scenario:

1. Several states file suit against it.
2. Federal judge blocks it
3. Suit goes to Supreme Court
4. SC ties 4-4 (or worse, strikes down the law 5-3)
5. Law does not go into effect, perhaps permanently.

To build upon what I said in the previous Trump thread, another similar and perhaps more nefarious scenario is the following:

1. Several states enact punitive and overreaching handgun registration requirements in a blatant effort to keep out-of-state LTC holders from exercising their rights under the new law
2. Several LTC holders file suit against state(s)
3. Federal judge blocks registration requirements
4. Suit goes to Supreme Court
5. SC ties 4-4 (or worse, registration laws allowed to stand 5-3)
6. Law only kinda goes into effect, with LTC holders having to jump through state-by-state registration hoops, and residents of those states suffering under punitive registration requirements, perhaps permanently

In either scenario, we get bad court precedent.

Originally Posted by motorhead0922

The first order of business is get another conservative justice.

^^^ This.

[Aguila Blanca]

Originally Posted by carguychris

Several states enact punitive and overreaching handgun registration requirements in a blatant effort to keep out-of-state LTC holders from exercising their rights under the new law

But more restrictive permit laws in, say, California, would not prevent people from states like Arizona, Texas and the like from coming into California and carrying legally pursuant to the proposed law. ALL it would do is prevent more Californians from getting permits.

I don't see what point you're trying to make.

[Al Norris]

Originally Posted by ctdonath

Between "full faith & credit" and "interstate commerce" clauses, the feds have the enumerated power to direct states to respect each others' licensing (driving, marriage, CCW, etc) when said licensing is equivalent in all states but states are reluctant to respect each others' licenses.

Medical Practitioners; Attorneys; Dentists; Plumbers; Electricians; Barbers (just to name a few) are almost universally licensed to practice in the State they reside. That state license (or permit, call it what you will) is only valid in that State. It is not valid in another State, unless the states have a reciprocity agreement.

That is exactly how our various state drivers licenses came to be accepted/recognized by all the other states. Reciprocity agreements were executed and signed by all the states to recognize all the other states. The Feds were never involved in these agreements. It was and is, solely a State action.

Nota Bene: The Feds became involved (REAL ID) in this, only because the drivers license became the de facto means of identification across state lines, thereby becoming a commerce clause issue.

This exactly how CCW/LTC is handled today. They are state actions of reciprocity.

Marriage is a horse of a different color. The issued "license" is a state action but does not confer marriage upon a couple. That is a judicial act/decree and the reason it requires a court to dissolve the marriage (divorce). The various states have carved out (in specific legislative acts) exceptions as to who may perform the marriage, but the marriage is of and in itself a judicial act. That (judicial acts) is what the "Full Faith and Credit" clause of the Constitution (Art IV, section 1) protects.

[Aguila Blanca]

Originally Posted by Al Norris

Marriage is a horse of a different color. The issued "license" is a state action but does not confer marriage upon a couple. That is a judicial act/decree and the reason it requires a court to dissolve the marriage (divorce). The various states have carved out (in specific legislative acts) exceptions as to who may perform the marriage, but the marriage is of and in itself a judicial act. That (judicial acts) is what the "Full Faith and Credit" clause of the Constitution (Art IV, section 1) protects.

I don't think that's universally accepted as the limitation of the full faith and credit clause. The language itself is:

Article 4 - The States
Section 1 - Each State to Honor all Others

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Note that the clause actually requires the individual states to recognize and honor three classes of things from other states: "Public acts," "records,", and (thirdly and separately) "judicial proceedings." The term "public acts" generally refers to acts of the legislature, not to decisions of the courts.

Consequently, if a state enacts (as a "public act" of its legislature) a law that says anyone over the age of 21 who is not a convicted felon can own and carry a gun, that's clearly a public act. The issuance of a carry permit pursuant to such law is an administrative procedure that simply carries out the mandate of the public act. That seems to be where the debate on reciprocal recognition of carry permits lies: is the permit a "public act," or is it something less (an administrative procedure)?

The following comes from The Free Dictionary and thus is hardly a legally definitive analysis, but it supports the concept that Article IV Section 1 applies to more than just court decisions:

http://legal-dictionary.thefreedicti...+Credit+Clause

The Full Faith and Credit Clause—Article IV, Section 1, of the U.S. Constitution—provides that the various states must recognize legislative acts, public records, and judicial decisions of the other states within the United States.

[carguychris]

Originally Posted by carguychris

Several states enact punitive and overreaching handgun registration requirements in a blatant effort to keep out-of-state LTC holders from exercising their rights under the new law

My point is that those states won't try to restrict the carry permit, as the federal law would preempt that. Instead, they may require registration of carry gun(s), under the guise of safety, theft prevention, and ensuring that the local AWB is complied with.

I foresee that this process would not be so difficult as to invite court challenges; it would be just difficult enough to discourage casual LTC holders from traveling to the state on a whim. ("Please mail notarized forms in triplicate to state police headquarters at the address below. Initial application must be accompanied by a clear 3"x5" color photo of each side of firearm(s), a copy of valid government-issued photo ID, and a check or money order for the $15 processing fee. No semi-automatic firearm(s) with the capability to accept a magazine with a capacity in excess of 10 rounds, a magazine forward of the trigger guard, a threaded barrel, and/or a flash hider may be registered. Please allow 45-60 days for processing...")

[vicGT]

Originally Posted by carguychris

My point is that those states won't try to restrict the carry permit, as the federal law would preempt that. Instead, they may require registration of carry gun(s), under the guise of safety, theft prevention, and ensuring that the local AWB is complied with.

I foresee that this process would not be so difficult as to invite court challenges; it would be just difficult enough to discourage casual LTC holders from traveling to the state on a whim. ("Please mail notarized forms in triplicate to state police headquarters at the address below. Initial application must be accompanied by a clear 3"x5" color photo of each side of firearm(s), a copy of valid government-issued photo ID, and a check or money order for the $15 processing fee. No semi-automatic firearm(s) with the capability to accept a magazine with a capacity in excess of 10 rounds, a magazine forward of the trigger guard, a threaded barrel, and/or a flash hider may be registered. Please allow 45-60 days for processing...")

Hey carguychris, I'm trying to understand HR 38 and your statement. In the bill, I see this language:

(c)(1) A person who carries or possesses a concealed handgun in accordance with subsections (a) and (b) 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 unless there is probable cause to believe that the person is doing so in a manner not provided for by this section

Assuming it becomes law as is, how could I be arrested for violating a law requiring the registration of carry guns when it says I can't be arrested for any state law relating to the carrying of firearms?

Is it the "...not provided for by this section" part? Because that part I completely don't understand. Sorry to bug you I'm just trying to get my head around all this!

[carguychris]

Originally Posted by vicGT

In the bill, I see this language:

Assuming it becomes law as is, how could I be arrested for violating a law requiring the registration of carry guns when it says I can't be arrested for any state law relating to the carrying of firearms?

Is it the "...not provided for by this section" part?

Yes, it's the "not provided for by this section " part. From section (b), my emphasis in boldface:

(b) This section shall not be construed to supersede or limit the laws of any State that—
(1) permit private persons or entities to prohibit or restrict the possession of concealed firearms on their property; or (2) prohibit or restrict the possession of firearms on any State or local government property, installation, building, base, or park.

Subsection (2) opens to the door to fairly broad prohibitions.

From the hypothetical "Concealed Handgun Safety and Theft Prevention Act of 2017":

(a) Any handgun possessed or carried within any State or local government property, installation, building, base, or park shall be registered pursuant to this Section.

(b) For the purposes of subsection (a), the term "installation" shall include:
(1) any rail, air, or bus transportation facility owned or operated by a subdivision of State or local government and open for public use;
(2) any school, college, or university owned or operated by a subdivision of State or local government;
(3) any facility owned or operated by a subdivision of State or local government where public sporting events are held, whether or not such events are actually taking place at the time; and
(4) any public highway, city street, alley, or pedestrian sidewalk right-of-way dedicated for public use.

[vicGT]

Thanks for the explanation, carguychris.

[FITASC]

any public highway, city street, alley, or pedestrian sidewalk right-of-way dedicated for public use.

That would eliminate concealed carry just about everywhere you'd want to carry one.

[carguychris]

Originally Posted by vicGT

Thanks for the explanation, carguychris.

You're welcome.

Originally Posted by FITASC

[The public right-of-way provision] would eliminate concealed carry just about everywhere you'd want to carry one.

As would the rail, air, or bus transportation facility provision, since many bus stations, most passenger rail stations, and AFAIK all U.S. airports with scheduled commercial carrier service are owned or operated by a subdivision of State or local government. Taken together, these provisions would make it largely impractical to lawfully transport an unregistered handgun into the state unless one found a way to walk or bicycle across the border within private property.

IOW section (b)(2) in the proposed reciprocity bill provides states with a loophole large enough to drive a train or fly a 747 through.

[thallub]

The first order of business is get another conservative justice.

Not quite. You need at least two so called "conservative" justices. When Scalia was on board the SCOTUS let several state gun laws stand.

http://www.nj.com/sussex-county/inde...in_public.html

http://www.wsj.com/articles/supreme-...law-1449500838

[Aguila Blanca]

Originally Posted by thallub

Not quite. You need at least two so called "conservative" justices. When Scalia was on board the SCOTUS let several state gun laws stand.

They basically let them all stand, but they didn't rule that they are (or were) constitutional. In the Heller decision, Mr. Justice Scalia referred to them as "presumptively legal" laws. I am aware that lower courts seem to be enamored of using that as a justification to be guided by those laws rather than examining them, but what Mr. Scalia was really saying was simply, "Those laws are not part of what this case asked, so we're not going to talk about them now."

And that's ALL that meant.

[steve4102]

Then why even mention them?

[Aguila Blanca]

Originally Posted by Steve4102

Then why even mention them?

I don't know, and since Mr. Scalia died we can't ask him. My supposition has always been that he stuck that in there to mollify Kennedy and keep him on the pro-Heller side of the vote. In other words, to make the decision as narrow as possible.

[Gary L. Griffiths]

In the FWIW file, here's a good read on the Constitutional authority for national reciprocity laws:

http://www.pagunblog.com/2017/01/16/...l-reciprocity/

For those leery of the precedent of the Feds interfering with the states, Sebastian points out that that horse has pretty well left the barn!

[vicGT]

Originally Posted by Gary L. Griffiths

http://www.pagunblog.com/2017/01/16/...l-reciprocity/

Gary's link recommends Clayton Cramer’s new paper: “Congressional Authority to Pass Concealed Carry Reciprocity Legislation”, which says some interesting things, including this, which dovetails with what carguychris was mentioning earlier:

The Tarraco decision also points to one other weakness of the “safe transit” provision:

No provision of this chapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together.

This alone argues for a clearer federal law concerning “safe transit,” which national concealed carry reciprocity would largely correct; persons with state licenses would immunize themselves against such charges

and this other bit, which I found surprising:

Congress has authority to require states to recognize concealed carry licenses from any state and even to prohibit businesses from refusing to allow licensees to carry on private property.

His interpretation of the power of the Commerce Clause is pretty pervasive, but I'm reading some of the cases he mentioned (Raich and Filburn) and they do seem to convey an avalanche of power.

[Aguila Blanca]

The Tarraco decision also points to one other weakness of the “safe transit” provision:

No provision of this chapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together.

This alone argues for a clearer federal law concerning “safe transit,” which national concealed carry reciprocity would largely correct; persons with state licenses would immunize themselves against such charges

I don't know what he means by "federal law concerning 'safe transit'," with respect to carry. The FOPA isn't about carry when traveling, it's specifically about transporting. The FOPA very much needs to be both clarified and expanded to specifically address modes of travel other than private automobile, but it isn't about carry. And, yes, if national carry recognition is enacted than many of the shortcomings of the FOPA will become moot.