CCW Reciprocity Unconstitutional?

[soloman02]

So a friend and I were discussing national reciprocity. He believes it to be unconstitutional under the 1997 Boerne v. Flores SCOTUS ruling that applied to the RFFA using the enforcement clause under the 14th amendment. The reasoning being that it expands rights under the 14th. I'm not so sure it would apply, but regardless, if national CCW reciprocity passed, the anti's would challenge it (from either Mass, NY, NJ, or CA) in court.

But this has also lead us to think that maybe the current model of reciprocity is unconstitutional. States can only enter into agreements with each other with express authorization from congress per Article I, section 10.

https://en.wikipedia.org/wiki/Interstate_compact

To my knowledge, no such compact on carry licenses/permits has ever been approved by congress.

My friend found this:

In Virginia v. Tennessee, 148 U.S. 503 (1893), the Court found that some agreements among states stand even when lacking the explicit consent of Congress.
According to the Court, the Compact Clause requires congressional consent only if the agreement among the states is "directed to the formation of any combination tending to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States".

But I'm not sure what it means and if it applies to existing CCW reciprocity agreements between states.

As far as I can tell, there is no "reciprocity" for drivers licenses, only reporting of offenses under the Non-Resident Violator Compact and the Drivers License Compact (Mass is not a member of this).
https://en.wikipedia.org/wiki/Non-Resident_Violator_Compact
https://en.wikipedia.org/wiki/Driver_License_Compact#Overview

So can someone help me out here?

 

[Bonesinium]

I'd say it is as unlawful as all other federal gun laws and by the same token, equally as legal. On a practical standpoint, it is moot. The Constitution is summarily ignored when convenient. From a principle standpoint, they have no authority in the first place, so any 'expansion' of a right cannot exist when the restrictions of that right are not lawful in the first place, also making it moot. Otherwise, it is just another example of picking and choosing which parts of the Constitution you follow.

 

[teaser452]

If a national reciprocity bill were to be passed and signed (yeah, keep dreaming), wouldn't that mean that the Federal Govt had approved the compact, just like drivers licenses? Or am I not understanding you?

I do get that it's possible the current reciprocity states have agreed to sure looks illegal under your reasoning. Interesting.

 

[LiveFreeAndDie]

The problem I see is that national CCW reciprocity steps into a legal quagmire, raising questions on everything from substantive due process and congressional power of enforcement, to states' rights. Because of this, there's a whole list of potential "gotchas" which could screw us. And it all stems from a non-strict reading of the second amendment. If the words "shall not be infringed" were interpreted properly, then none of this would be a question: constitutional carry would be law of the land.

In fact, I think that's one of the only ways it could work, that is if Congress passed a law requiring nation-wide constitutional carry as a remedy for the #2A violation of States requiring permits to exercise a right. Unfortunately, due to "City of Boerne v. Flores" being a pissing match between SCOTUS and Congress, it's now unclear exactly what Congress can do to enforce protections on personal liberties on the States.

 

[terraformer]

For most things, it would be considered unlawful to force states to recognize each others licenses or a federal license, unless you want to make a commerce clause argument, which is how they would have pushed in federally recognized DLs. Since goods travel by road, this actually wouldn't be an abuse of the CC. But the 2A is a federal right and one can make an argument that the 2A grants the federal government right to regulate it absent the CC. It hasn't been done before, but this is not an absurd argument. The states used to force people to buy and carry guns on the same argument.

 

[browncoat]

The supremacy of the Federal government is so overwhelming that I think it would be hard to argue that virtually any non-secessionist compact between states would qualify under the previously cited theory.

 

[jkelly1229]

You couldn't make a commerce clause until the feds repealed the nban on buying handguns across state lines. If they did that then the dem states with lists would throw a f***ING fit and unfortunately cali NY mass make up a huge demographic for the dems. You can ignore us but pissing off the other two is political suicide. So yeah its not happening but it's nice to dream while we are at it I'd like some 50 bmg anti tank rounds please and thank you

 

[bullseye]

Just put your damn gun on your hip and carry it, BFD!

 

[LiveFreeAndDie]

I'm not a fan of a big general government, but my thinking on this has changed a little. Without incorporation of 2A via 14A, what prevents certain States from outright banning guns (or permitting slavery, or denying people trial by jury, etc)? Does this mean that the Federal Government has a role to play in protecting "certain unalienable rights" from abuses of State power? Is that not a check/balance on State power?

If it does have a role to play, then National Reciprocity could be seen as a remedy for the Constitutional violations of some anti-gun States.

No?

 

[Cabinetman]

While I would relish the opportunity to carry within the borders of at least the lower 48 legally, a federal law providing that "priviledge" would not be appropriate. That's because we would be ceding power to the Congress over something they currently do not have. Rest assured that there would be a lot of arguments between the states that currently enforce extremely strict laws about carry and those that do not. My gut tells me that the Congress, given their control over the situation, would find a way to pollute and erode those states that don't regulate carry that strictly. So, we'll never see a reciprocity bill pass unless we're willing to, once again, give Congress more power than it should have.

Secondly, the argument that driver's licences are recognized throughout the USA by all states is not a legitimate argument. That's because not recognizing fellow state's drivers licenses would inhibit "interstate commerce" laws. Without them states could set up borders that would need to be crossed showing proper papers and local driver's licenses. By requiring all states to accept all other states drivers licences keeps our border open for business. Even marriage laws are not uniform through out the country as you know. The Feds are trying all their might to jump into that arena but we must keep them away.

In the purest sense, what the government SHOULD do is declare that the 2nd amendment is sacred and should not be abridged by any state in any way. The Congress DOES have the power to declare that since our constitution covers all citizens equally. All this paperwork, applications and restrictions on the 2a are illegal as sin. I wonder what would happen if Massachusetts or Maryland, for example, were to begin seriously limiting the 1st amendment guaranteeing free speech by requiring permits and making people jump through hoops. Seems to me that a lot of citizens would balk at that. Why, then, is the 2nd amendment treated so shabbily??

Rome

 

[LiveFreeAndDie]

In the purest sense, what the government SHOULD do is declare that the 2nd amendment is sacred and should not be abridged by any state in any way.

I assume you mean the Federal Government should declare this. I thought this is basically achieved with the incorporation of the 2nd Amendment via the 14th Amendment (McDonald v. City of Chicago). "The Second Amendment right to keep and bear arms for self defense in one's home is fully applicable to the states through the Fourteenth Amendment. Court of Appeals for the Seventh Circuit reversed and remanded." Obviously we here would not limit it to "in one's home," but the concept is the same.

If this is not what is achieved, what sort of "declaration" should be made? I thought your entire argument was that Congress shouldn't push this onto the states, but then you say they "SHOULD."

 

[Rob Boudrie]

Constitutionality doesn't matter. All the feds would have to do is make it voluntary, with all highway funds to be withheld from states that don't play ball - exactly like the 21 drinking limit.

 

[jasons]

In the purest sense, what the government SHOULD do is declare that the 2nd amendment is sacred and should not be abridged by any state in any way.

The government has done the opposite already.

No fundamental right—not even the First Amendment—is absolute. The traditional restrictions go to show the scope of the right, not its lack of fundamental character.

There are a ton of other examples if you dig through Heller and McDonald. Essentially their view is that restrictions, particularly on fundamental rights, can be constitutional under certain circumstances.

 

[SemiAutoSam]

Dont think real id act forces driver license reciprocity ?

http://www.dhs.gov/secure-drivers-licenses

For most things, it would be considered unlawful to force states to recognize each others licenses or a federal license, unless you want to make a commerce clause argument, which is how they would have pushed in federally recognized DLs. Since goods travel by road, this actually wouldn't be an abuse of the CC. But the 2A is a federal right and one can make an argument that the 2A grants the federal government right to regulate it absent the CC. It hasn't been done before, but this is not an absurd argument. The states used to force people to buy and carry guns on the same argument.