Is National Reciprocity Constitutionally Justifiable?

Spoiler Alert: Of course it is, but we'll review some reasons why

There are few topics that I’ve discussed, or seen discussed, among gun owners as much as national reciprocity.  It ought to be obvious why, but to be clear, it’s because it provides renewed hope of some measure of gun law reform. More so, it provides this hope despite overwhelming animosity from New Jersey legislature and the inauguration of Phil Murphy as New Jersey’s Governor.  The U.S. House of Representatives passed H.R. 38 providing for national reciprocity and gun owners nationwide await action in the U.S. Senate.  With significant backing from the N.R.A. and supportive statements from the President, both during his campaign and after his election, one would expect the the bill would be primed for quick passage.

Some background

Unfortunately, that may not be the case. H.R. 38 had Republican detractors who voted against the legislation because they didn’t like how it was structured. To be clear, H.R. 38 and S. 446 both appear to rely largely on the federal government’s authority to regulate interstate commerce.  Critics of the bill claim that it is hypocritical for legislators who argue against overly broad use of the commerce clause to cite it as justification for this bill.  However, there is more than one justification for national reciprocity other than the common interpretation of interstate commerce.  Writing in The Hill, David Kopel cites the 14th Amendment to support the application of national reciprocity between states.  The 14th Amendment, according to Kopel, provides Congress the opportunity to enact national reciprocity legislation through an application of the 2nd Amendment itself, through the right to interstate travel.

The argument for national reciprocity from a moral & philosophical perspective is clearly convincing for many Americans. It is hard to stomach putting citizens behind bars for possession of firearms they purchased and owned legally, simply because they made the mistake of not knowing how different the laws of other states might be.  We’ve also seen the public reaction to stories like Shaneen Allen or Brian Fletcher when they get sufficient  media attention and eventually were pardoned.  But for gun owners traveling through New Jersey that might be tripped up by our draconian laws, there will likely be no relief under the new Governor.  The same is doubly true for residents of the Garden State who likely face even more draconian laws in coming legislative sessions.

Because there is ongoing infringement of a constitutionally protected right, it is imperative for Congress to act in defense of the rights of citizens.

Congress’ power to enact national reciprocity

As mentioned earlier, David Kopel lays out a detailed case in his article at The Hill as well as in his testimony before a committee of the House of Representatives in 2011 and before a U.S. Senate committee this past December.  As noted, the 14th amendment appears to be basis for the argument.  However, there are several ways the 14th amendment provides Congress authority to act.

The Right to Keep and Bear Arms

The first of these relies on Sections 1 and 5 of the 14th Amendment.  Section 1 contains the amendment’s due process, privileges and immunities, and equal protection clauses.  Section 5 states that Congress has the power to enforce those provisions through legislation.  Kopel cites these sections and a couple Supreme Court cases ( Tennessee v. Lane and City of Boerne v. Flores) to note that Congress has the authority to protect the right to carry beyond the requirements that the Supreme Court might place on carry restrictions in a holding.

Interstate travel

Congress also has power to act to protect the right to interstate travel, which was derived from the privileges and immunities clause. This bars states from discriminating against residents of other states. Kopel cites many Supreme Court precedents to support his argument that Congress’ authority extends to enacting appropriate legislation to prevent states from interfering with the rights of U.S. Citizens as they travel among the states (such as Shapiro v. ThompsonUnited States v. Guest). States with harsh concealed carry practices, like New Jersey, don’t provide a means for non-residents to apply for concealed carry and they certainly don’t recognize an out of state permit creating the need for reciprocity enacted by Congress.

Interstate commerce

Finally, Kopel provides significant discussion of Congress’ power to regulate interstate commerce.  Conservatives generally oppose what they view as overreach by way of the commerce clause.  While Kopel agrees that the original meaning of the commerce clause would likely not include its application to matter like national reciprocity, its does have a strong history of precedent and its use in this case would present some interesting interactions with existing firearms laws.  You see, previous legislation, like the Gun Control Act of 1968 are premised on the commerce clause.  So any attempt to strike down national reciprocity, should it rely on commerce clause reasoning, would also be taking the legs out from under existing firearms restrictions.

Practical implications for New Jersey

Scott Bach, Executive Director of ANJRPC

Here in New Jersey, on a practical level, it is clear that state officials will challenge any new law in court with an argument the law violates “states’ rights”. (We deal with the notion of states’ rights here) When reached for comment, Scott Bach stated, “This legislation would pit states’ rights against fundamental individual rights.  It should be self-evident that the fundamental right to protect yourself outweighs the “right” of a state to interfere with self-defense, especially since states cannot guarantee your safety and refuse to be accountable when they fail to do so.  But get ready for states like NJ to argue that trained, vetted, law-abiding citizens with firearms are themselves a danger to public safety, which states have the “right” and obligation to prohibit.

In fact, prior to passage in the U.S. House of Representatives in December, NJ Senate Majority Leader Loretta Weinberg issued a statement opposing the legislation, “This bill will have severe consequences for our state.  New Jersey’s Congressional representatives must stand against this effort to loosen our reasonably stringent gun requirements and vote no on this legislation.

While the challenge to the law from states like New Jersey should be expected, based on the precedents we’ve reviewed, it should be clear that Congress is well within its authority to enact national reciprocity.  It seems that our job now is simply to encourage Senators to act and pass this important piece of legislation.

 

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John is founder of NJ SAFE Conference and is primarily responsible for the production of our events. He grew up shooting and hunting in Minnesota, and moved to New Jersey in 2002 after serving in the US Marines. John is focused on education, holding a Master's degree and pursuing a Ph.D.