Any realistic new law must account for people who already own
the items in question. When there are tens or hundreds of thousands
of such people, being realistic is especially important.
Unfortunately, S. 1916 has no provision for grandfathering. It
takes effect 180 days after enactment, so current owners have 180
days to destroy their property. Some will, but others will be
driven underground—pushed outside the lawful system.
A better policy and precedent have been adopted by the ATF, when
items are reclassified. For example, in 1994, the ATF decided that
three particular models of shotguns were covered by the 1934
National Firearms Act, and therefore had to be federally
registered.3 Because ATF was changing its mind about
guns that had previously been bought and sold as ordinary guns (and
not as specially-restricted NFA items), ATF offered a seven-year
registration period. ATF also waived the $200 tax per gun that
could have been imposed.4
The above approach kept more arms in the legal system than a
more draconian approach would have.
If a law provided for grandfathered registration, and subjected
new sales to the stringent system of the 1934 National Firearms
Act, it would likely pass constitutional muster with the
courts.5 First of all, Heller
indicates that full automatics are outside the scope of Second
Bump stocks degrade accuracy, making a firearm less suited for
self-defense or hunting.7
Until Las Vegas, no bump stock had ever been used in a crime.
Which makes sense—a criminal who was holding up a liquor
store, or taking revenge on a personal enemy, would not choose an
accessory that made his weapon less accurate. For criminal use, the
only advantage of a bump stock would be in a long-range situation,
with little attempt to aim—as in Las Vegas.
We know that mass shooters plan their crimes for months in
advance, and carefully study the techniques of other mass shooters.
So there is a genuine risk that other would-be mass killers may
imitate the Las Vegas fiend.
II. The bill outlaws normal gunsmithing
“Bump stocks” can be precisely defined.
Unfortunately, S. 1916 omits a definition, and simply refers to
“a bump-fire device.”
Worse, the bill outlaws much normal gunsmithing, namely
“anything that is designed or functions to accelerate the
rate of fire of a semi-automatic rifle but not convert the
semiautomatic rifle into a machinegun.”
What kind of thing “is designed or functions to accelerate
the rate of fire of a semi-automatic rifle”? Gun cleaning
tools “function” to make a gun fire faster. Cleaning
removes ash-like debris (“fouling” from gunpowder and
lead) that accumulates at various places in a rifle, including the
moving parts. As with all mechanical tools, cleaning up the moving
parts helps them move more rapidly.
Certainly the sponsor did not intend to outlaw gun-cleaning
tools. Yet that is how far the bill’s language goes.
The overbroad language outlaws many normal modifications to a
firearm. For example: you own an ordinary semi-automatic rifle. As
manufactured, the trigger needs six pounds of pressure in order to
operate. Perhaps your hands aren’t as strong as an average
person’s, so you take the firearm to a gunsmith, who puts in
some replacement springs and other parts that lower the trigger
pressure to four pounds. That would be a federal felony under S.
Reducing the trigger pressure from six pounds to four pounds
will necessarily make the rifle fire faster. Before you shoot, the
pressure on the trigger is zero. When you press the trigger with
your finger, you will necessarily get to four pounds of pressure
sooner than you get to six. The time difference may be only a
few-thousandths of a second. You certainly haven’t made your
semiautomatic rifle fire like a full automatic. But you and the
gunsmith will both be federal felons.
There are lots of items that “function” to
“accelerate” the fire of a semiautomatic rifle.
Anything that stabilizes a rifle makes it easier to shoot faster.
This includes sandbags, bipods, or better grips.8
Anything that makes a trigger operate more smoothly would also
be included. For example, a custom replacement trigger whose parts
are made more precisely than the factory trigger.
The recoil buffer of a firearm uses springs, cams, or a lever to
reduce how much recoil the user feels. Anything that alleviates
felt recoil will help the user fire faster. Pain-reducing drugs,
such as Tylenol or Advil, help in a similar way. For example,
reducing shoulder pain helps the user keep the shoulder in strong,
solid contact with the rifle, thus stabilizing the rifle.
Firearms are tools that employ hot gas. Some of the expanding
gas energy from the gunpowder explosion propels the bullet forward;
some gas energy becomes recoil against the shooter; and some gas
energy dissipates elsewhere. Anything that improves the efficiency
of the gas system will enable the user to fire faster.
Even replacing worn-out parts (that function relatively slowly
because they are worn out) with identical fresh parts will
accelerate a rifle’s operation.
In short, S. 1916 broadly outlaws much ordinary maintenance and
improvement of firearms.
If enacted in current form, S. 1916 could not be applied as
written. Instead, the ATF would be left to chart a course with no
statutory guidance, trying to figure out which normal gunsmithing
is now illegal, and which is still permissible.
Fix NICS Act of 2017. S. 2135
This bill provides some carrots and sticks to induce federal
departments, bureaus, and agencies to supply information to the
FBI’s National Instant Criminal Background Check System
(NICS). The FBI’s NICS has been operational for two decades,
and federal law already mandates data submission by federal
entities. Yet data reporting has sometimes been erratic.
Accordingly, S. 2135 would be a constructive step forward.
The intended effect of S. 2135 is to increase the number of
people who are on an FBI list that prohibits them from exercising
Second Amendment rights for the rest of their lives. These are
people who are in one of the nine categories of “prohibited
persons” created by 18 U.S.C. § 922(g).
In general, the various statutory prohibitions are protective of
public safety. But there are exceptions, and Congress should
consider fixing NICS by addressing some of its problems.
I. Restore restoration of rights
When Congress enacted the Gun Control Act of 1968, with various
broad categories of prohibited persons, Congress recognized that
the prohibitions could sometimes sweep too broadly in individual
cases. So Congress provided a procedure for persons to petition for
the restoration of their rights—also known as “relief
Under the statutory structure, ATF has discretion about whether
to grant relief. Such relief would typically require, at a minimum,
that the petitioner has kept himself or herself on the straight and
narrow for many years. 18 U.S. Code § 925(c).
Unfortunately, since 1993 Congressional appropriations riders
have defunded the federal relief from disabilities
programs.9 Accordingly, ATF has treated state relief
programs as providing an equivalent relief, which lifts the federal
disability. Especially for misdemeanors, this program does not work
very well.10 First of all, some states have no program
for relief from disabilities.
Second, ATF and judicial interpretation limit the federal relief
that states can offer. If a state restores a person’s right
to arms, but does not allow that person to hold elected office, the
person is still prohibited by federal law from possessing arms.
Thus, a person who was told by the state government that he can now
legally possess firearms ends up being prosecuted for the federal
felony of illegal gun possession, with its five-year
Or consider a state misdemeanor conviction for which the person
did not lose any rights under state law, including the
right to bear arms. Yet by federal law, that domestic violence
misdemeanor is a lifetime firearms prohibition. Can the
person’s right to own a firearm ever be restored? The answer
is “no,” according to the U.S. Supreme Court. If you
never lost your rights, they cannot be restored. And therefore, you
can never escape from the federal gun ban.12
This strange result is not inconsistent with the current
statutory language, which is poorly written, and should be
Or suppose a state law says that a former convict may possess
long guns anywhere, and may possess handguns at his home or
business, but he may not be issued a handgun carry permit.
According to the Supreme Court, such a person may be prosecuted for
possessing a long gun, since the restoration of his state rights
did not include the full scope of firearms rights.14
Especially in the context of misdemeanors, the absence of a
restoration of rights program can create very unfair results. As
interpreted by the courts, the federal misdemeanor gun ban does not
require that the defendant actually did anything violent. Rather,
the lifetime prohibition is imposed for any unwanted or offensive
touching of a domestic or intimate partner.15 Thus, the
law fails to distinguish between punching someone in the face
versus poking a finger at a person’s shoulder during an
argument. Surely a person who is subject to a lifetime rights ban
for a finger poke should have the opportunity to petition the
federal government for restoration of rights. If the statutory
federal restoration of rights process were allowed to function, ATF
could consider the petitioner’s lifetime record of behavior, and
any other relevant factors.
II. Respect federalism
Federal law currently prohibits firearms possession by any
person “who is an unlawful user of or addicted to any
controlled substance (as defined in section 102 of the Controlled
Substances Act (21 U.S.C. 802)).” 18 U.S. Code §
922(g)(3). Among the persons who are labeled as an “unlawful
user” by the Controlled Substances Act (CSA) are persons who
lawfully use marijuana pursuant to state law. Currently, 29 states
have laws that expressly allow and regulate marijuana
Federal micromanagement of the non-commercial possession of an
item solely within a single state is a stretch of the
Congress’s constitutional power “to regulate
commerce…among the several States.”17
The stretch goes past the breaking point when the lawful
in-state possession of one item (marijuana) is turned into a
federal prohibition of another item allowed under state law (a
firearm). To make things much worse, the prohibition eradicates the
exercise of a constitutional right.
Federally, marijuana is on Schedule I of the CSA: “no
currently accepted medical use and a high potential for
abuse.” Under the CSA, marijuana is worse than
“cocaine, methamphetamine, methadone,” and
“oxycodone (OxyContin), fentanyl.” Thus drugs are on
Schedule II, which allows for some legal use.
The people of 29 states—sometimes by direct vote, and
sometimes through their representatives—have rejected the
CSA’s factual errors. The majority of states recognize that
marijuana has legitimate use in some circumstances. The benefit of
some medical applications is well-established.
Congress should consider updating the “prohibited
person” law, to respect state decisions on marijuana. Because
Congress has not yet updated the law, lawfully registered firearms
are presently being confiscated from lawfully registered users of
medical marijuana in Hawaii.18
At present, a person can lawfully possess arms, while also using
fentanyl in compliance with applicable law. Yet medical marijuana
users are felonized by federal gun law. This is irrational.
Of course states can, and do, have laws against carrying guns
while under the influence of alcohol, drugs, or other substances.
These state laws will remain in place. Federal laws need not drill
down to purely intrastate activity.
Background Check Completion Act. S. 1923
I. Effect of the bill
The National Instant Criminal Background Check Systems (NICS) is
established by 18 U.S.C. § 922(t). The bill would change the
language for when a sale may proceed, after the seller has
contacted the FBI or a state counterpart for a background
Under current law, the sale may proceed when:
(B)(i) the system provides the licensee with a unique
identification number; or
(ii) 3 business days (meaning a day on which State offices are
open) have elapsed since the licensee contacted the system, and the
system has not notified the licensee that the receipt of a firearm
by such other person would violate subsection (g) or (n) of this
Under S. 1923, the statute would read:
(B) the system provides the licensee with a unique
How current law works: Starting on the day
after the retailer contacts the government, the government’s
“instant” check system has three full business days to
approve or deny the sale. If the government does not act, the
retailer may sell the firearm on the day after the third full
For example: the retailer contacts the FBI on Monday. Three full
business days pass, with no answer (Tuesday, Wednesday, Thursday).
On Friday, the retailer may sell the gun.
If the transaction begins on a day other than Monday, then there
will be an intervening weekend, which will add two non-business
days to the delay in the sale of the firearm. So usually, the
government has about a week to provide a response from the
“instant” check system.
Changes under S. 1923: The sale may never
proceed until the government affirmatively allows it. The sale may
be delayed for days, months, or years, at the government’s
II. The Charleston criminal
Dylann Roof, a racist who murdered churchgoers in Charleston,
South Carolina, in 2015, had previously been arrested. During the
arrest he admitted to law enforcement officers that he was a user
of methamphetamine. That was sufficient, under the federal Gun
Control Act of 1968, to prohibit him from owning guns, because the
statute bans gun ownership by unlawful drug users.18
U.S.C. § 922(g)(3).
However, as the FBI later admitted, the Bureau failed to
properly enter into its database the prohibiting information that
had been provided by local law enforcement.19
As will be detailed below, the three-business-day law is
intended to protect the public from an FBI Director who might want
to throttle lawful gun sales. The FBI’s bureaucratic error in data
entry about information received from local law enforcement is not
a reason to eliminate the current statutory protections against
abuse of Second Amendment rights by the FBI (or an FBI Director
doing the bidding of a President).
III. Preventing indefinite delay in the exercise of rights
Any system that involves government permission to exercise a
constitutional right faces a fundamental challenge: What about
government officials who are hostile to the right, and who would
thwart the right simply by refusing to make a decision on the
In the First Amendment context (e.g., parade permits), we avoid
the problem by specifying exactly what information the parade
permit request should include. We also require the government to
issue or deny the permit within a certain time period.
Similar issues arise in the Second Amendment context. There,
even when statutes specify that a government official must approve
or deny a proposed firearms purchase or license within a certain
period, some officials still refuse to act. Some notorious examples
have been New Jersey (30 day limit for decisions on handgun
purchases, and on firearms identification cards) and New York City
(six month limit for decision on handgun
The problem in both N.Y.C. and N.J. is that the seller is
forbidden to sell until the police act, even if the police violate
the law by not acting in a timely manner.
The absence of effective time rules in New Jersey may have cost
Carol Browne her life. She obtained a restraining order against her
ex-boyfriend, and she applied for a permit to possess a firearm.
She submitted the firearm application on April 21, 2015. The
ex-boyfriend stabbed her to death in early June, while her
application was still pending at the local police department. The
department later said that it usually takes two or three months to
process an application.21
IV. Legislative history of the 3-business-day limit
As introduced in Congress in the late 1980s, the Brady Bill
would have spread this problem nationwide. The early Brady Bills
would have forbidden handgun sales until the local police chief or
sheriff had affirmatively granted permission. Adding a firm time
limit was the joint effort of Rep. Charles Schumer (D-N.Y.) and
Rep. James Sensenbrenner (R-Wisc.).
On April 23, 1991, the Committee on the Judiciary met to
consider H.R. 7. An amendment was offered by Representatives
Charles Schumer and Representative Jim Sensenbrenner to make it
clear that a handgun sale could proceed under the bill at the
expiration of the 7-day waiting period, provided that the
transferor had not been informed by a law enforcement official that
the prospective purchaser was not prohibited from buying a
When the Brady Bill was brought to the House floor in the next
Congress 1993, it did have a time limit for the interim provision
(a local check on handguns only). But it did not have a time limit
on the permanent provision (a national instant check on long guns
as well as handguns). Rep. Gekas (R-Pa.) proposed an amendment that
under the national instant check, the sale could proceed after one
business day if the FBI failed to respond.23
So if a retailer contacted the FBI on Friday, and the FBI did
nothing on Monday (the first full business day after being
contacted), then the retailer could sell the gun on Tuesday.
The Gekas Amendment also required that the interim provision of
the Brady Bill replaced in no longer than five years by the
National Instant Check System.
Opponents of the Gekas Amendment focused their fire on the date
certain provision for operation of the national instant check. None
of them criticized the 1-business-day rule that would apply once
the national check become operational.
The Gekas Amendment was passed 236 to 198, with the winning
margin coming from Representatives who would soon vote for passage
of the Brady Bill as a whole.24
The House-Senate Conference changed the 1-business-day provision
to 3- business-days.
When the final version of the Brady Bill was ready for a vote,
its supporters extolled the principle of time limits on law
Rep. Marge Roukema (R-N.J.) praised the 5-business-day limit for
the interim version (local law enforcement handgun-only check).
This was a safeguard against abuse:
Madam Chairman, I rise in the strongest support of this
legislation, and urge my colleagues to do what their constituents
expect and demand: Pass the Brady bill…. Second, there is no case
to be made for unreasonable delay. The Brady bill is clear and
explicit: After transmitting the name and address of the purchaser
to local law enforcement officials, if the dealer has not heard
back from law enforcement after 5 days, positively disallowing the
sale, the buyer gets his gun. There is no room for delay—it’s
Rep. William Hughes, (D-N.J.), former Chair of the House
Judiciary Subcommittee on Crime, extolled the Brady Bill for the
In other words, the police are given a reasonable opportunity to
conduct a background check, but they cannot indefinitely delay the
sale by stalling or failing to provide a notice of authorization to
the dealer. The onus rests entirely with the law enforcement
officer, not the dealer or the prospective
Compared to the 1990s, computer systems are much more advanced.
Accordingly, there might be a good argument for reducing the
three-businessday limit to one or two.
A time limit has the salutary effect of encouraging the FBI to
process NICS applications promptly. It prevents an FBI Director
from thwarting legitimate firearms sales by taking weeks, months,
or longer to act on NICS applications. It prevents the FBI from
bottlenecking sales—such as by assigning too few personnel
and computer resources to process applications in a reasonable
S. 1923 eliminates the safeguard created by Congress in 1993.
Instead, no firearms sale could take place until the FBI got around
to giving affirmative consent. There would be no statutory
requirement for the FBI to provide the “instant”
authorization, or to make a decision within 3 business days, or to
make a decision ever.
Under the potential influence of an anti-gun President, the FBI
Director could impose indefinite delays on all firearms sales. Or
the Director could select a subset of sales to be slow-walked.
Thus, the FBI Director could impose a de facto ban on the
purchase of certain types of firearms—such as models that the
President wished to prohibit, but which Congress has chosen not to
The elimination of the time limit for a decision would make
federal law even more restrictive than California, a notoriously
strict state. There, the time limit for government decisions about
proposed sales is ten days.27
VI. Does Walmart make national laws?
At the behest of Michael Bloomberg’s Everytown
organization, Walmart has announced that it will consummate sales
until it receives affirmative approval from the
“instant” check system, no matter how long that
As a private corporation, Walmart is free to impose on its
customers restrictions that are not required by federal or state
law. Indeed, under current federal law, the retailer has no
obligation to deliver a firearm once three full business days have
Some people argue that Walmart’s corporate policies for
how it treats customers and employees are not necessarily good
examples that should be statutorily imposed on all businesses. For
example, after far-left filmmaker Michael Moore put pressure on
Walmart, the corporation chose to discontinue selling handgun
ammunition. This is not the behavior of a corporation that is
concerned about the constitutional rights of its customers.
Moreover, Walmart’s decision to acquiesce to the demands
of Mr. Bloomberg’s organization was made in the context of
the currently well-functioning NICS operations. As long as the
federal statutory requirement for a decision within three business
days remains on the books, Walmart could be confident that the vast
majority of its customers would receive authorization punctually.
If S. 1923 became law, then the federal statutory incentive for
prompt decisions for most buyers would vanish.
Few other retailers, large or small, have chosen to follow
Walmart’s example. Family stores, as well as large chains
(e.g., Cabela’s) have a shared interest with their customers
in the protection of Second Amendment rights. The seem to recognize
the danger of creating a norm that the exercise of rights may be
Reciprocity for the carrying of certain concealed
firearms. S. 446
The Fourteenth Amendment was added to the Constitution to adjust
the state/federal balance, granting Congress the direct power to
act against state infringements of important federal rights.
S. 446 would protect the right of interstate travel, which is
one of the “privileges or immunities of citizens of the
United States,” which the Fourteenth Amendment gives Congress
the authority to protect.28
The Second Amendment right to bear arms is also protected by
section 1 of the Fourteenth Amendment; therefore Congress has the
power under section 5 of the Fourteenth Amendment to act against
state infringements. The Supreme Court’s Heller
and McDonald decisions recognize that the right to carry arms
for lawful self-defense in public places is part of the Second
Even if the Supreme Court had been silent on the right to carry,
or left the issue in a gray zone, Congress can still act to protect
the right to carry. Supreme Court cases such as Tennessee v.
Lane and City of Boerne v. Flores affirm Congress’s
power to enact “congruent and proportional” laws that
go beyond what courts have required.
Additionally, S. 446 is supported by a long line of Supreme
Court precedent that the congressional power to protect interstate
commerce from state interference can be used to protect the right
Finally, S. 446 uses the same “jurisdictional hook”
as many other federal gun laws: the handgun in question must have
at some point moved in interstate commerce. This is the same
jurisdictional basis as the federal statute barring various
categories of persons from possessing firearms, and other federal
II. Congressional enforcement of the right to travel
S. 466 is closely connected to the right to travel. It protects
“an individual” who meets certain conditions, and who
possesses or carries a concealed handgun “in any State other
than the State of residence of the individual.” The bill is
for travelers who are outside their State of residence.
A long-established line of Supreme Court precedents recognizes
the constitutional right to travel.29 The leading modern
precedent on interstate travel is Sáenz v. Roe, 526
U.S. 489 (1999). Writing for a seven-Justice majority, Justice
The word “travel” is not found in the text of the
Constitution. Yet the “constitutional right to travel from
one State to another” is firmly embedded in our
jurisprudence. United States v. Guest, 383 U. S. 745, 757
(1966). Indeed, as Justice Stewart reminded us in Shapiro v.
Thompson, 394 U. S. 618 (1969), the right is so important that
it is “assertable against private interference as well as
governmental action … a virtually unconditional personal right,
guaranteed by the Constitution to us all.” Id., at 643
Quoting the Shapiro case, the Sáenz
Court wrote that it has been “long ‘recognized that the
nature of our Federal Union and our constitutional concepts of
personal liberty unite to require that all citizens be free to
travel throughout the length and breadth of our land uninhibited by
statutes, rules, or regulations which unreasonably burden or
restrict this movement.’” Sáenz at 499.
In other words, an “unreasonable” burdens or
restrictions on interstate travel violate the Constitution. The
Sáenz Court explained that there are three
components to the right to travel. Two of them (the right to cross
state borders, and the right to become a citizen of a different
state) are not addressed by S. 446. The component that is addressed
is the “right to be treated as a welcome visitor rather than
an unfriendly alien when temporarily present in the second
State.” Id. at 500.30
The right of visitors to be treated equally is guaranteed by
Article IV, section 2: “The Citizens of each State shall be
entitled to all Privileges and Immunities of Citizens in the
It provides important protections for nonresidents who enter a
State whether to obtain employment, Hicklin v. Orbeck, 437 U. S.
518 (1978), to procure medical services, Doe v. Bolton, 410 U. S.
179, 200 (1973), or even to engage in commercial shrimp fishing,
Toomer v. Witsell, 334 U. S. 385 (1948).31
Those protections are not “absolute,” but the Clause
“does bar discrimination against citizens of other States
where there is no substantial reason for the discrimination beyond
the mere fact that they are citizens of other States.” Sáenz
A. The Fourteenth Amendment was intended to give
Congress the power to protect the right to travel—with
special concern for travelers who might be threatened by
Section 5 of the Fourteenth Amendment granted a new power to
Congress: “The Congress shall have power to enforce, by
appropriate legislation, the provisions of this article.” One
of the purposes of section 5 was to give Congress the affirmative
power to enforce the rights protected in Article IV, § 2,
which Congress believed to be among those rights that were
protected by section 1 of the Fourteenth
Notably, congressional debate on the Fourteenth
Amendment’s Privilege or Immunities clause indicated specific
intent to protect the right to travel—not just the right to
become a citizen of a new state. Congress discussed South
Carolina’s notorious 1844 persecution of Samuel Hoar, an
attorney from Massachusetts. Hoar had traveled to South Carolina to
mount a legal challenge to the state law that authorized the
capture and enslavement of free black sailors who in a South
Carolina port stepped off their ship and onto the
land.34 Incited by the South Carolina legislature and
governor, mobs threatened violence against the attorney, and he was
forced to flee the state.35
Two decades later, Senator John Sherman (R-Ohio)36
used Hoar’s case to explain the need for the Fourteenth
Amendment. Article IV of the Constitution had always meant that
“a man who was recognized as a citizen of one state had the
right to go anywhere within the United States and exercise the
immunity of a citizen of the United States; but the trouble was in
enforcing this constitutional provision. In the celebrated case of
Mr. Hoar…This constitutional provision was in effect a dead letter
as to him.”37
Illinois Senator Lyman Trumbull had authored the Thirteenth
Amendment, abolishing slavery. He too cited the Hoar case, and
Mississippi’s prohibition on gun ownership by freedmen, as
examples of the needs for a congressional power to enforce national
Ohio Republican Columbus Delano promoted the Fourteenth
Amendment to the public by reminding them of the Hoar atrocity, and
stating that the Fourteenth Amendment would protect the right of
B. Congress’s power to regulate interstate
commerce includes the power to thwart impediments to the right to
After the Civil Rights Act of 1964 outlawed racial
discrimination in places of public accommodation, various legal
challenges were brought. The one that related to the right to
travel was Heart of Atlanta Motel v. United States, 379
U.S. 241 (1964).
The motel clearly solicited and catered to interstate
It is readily accessible to interstate highways 75 and 85 and
state highways 23 and 41. Appellant solicits patronage from outside
the State of Georgia through various national advertising media,
including magazines of national circulation; it maintains over 50
billboards and highway signs within the State, soliciting patronage
for the motel; it accepts convention trade from outside Georgia and
approximately 75% of its registered guests are from out of
Id. at 242.
The unanimous Supreme Court found that Congress could prohibit
the motel from refusing black guests, because such refusal was a
barrier to interstate travel. The Court summarized congressional
testimony and fact-finding that discrimination had “a
qualitative as well as quantitative effect on interstate travel by
Negroes.”. The uncertainty about being able to find lodging
“had the effect of discouraging travel on the part of a
substantial portion of the Negro community.” Id. at
Citing many precedents, the Heart of Atlanta Court said
that the interstate commerce power included the power to protect
interstate transportation of persons. Relying particularly on
precedents from 1913, 1917, and 1946, the Court wrote: “Nor
does it make any difference whether the transportation is
commercial in character.” Id. at 256.
The Court concluded:
It may be argued that Congress could have pursued other methods
to eliminate the obstructions it found in interstate commerce
caused by racial discrimination. But this is a matter of policy
that rests entirely with the Congress not with the courts. How
obstructions in commerce may be removed - what means are to be
employed - is within the sound and exclusive discretion of the
Congress. It is subject only to one caveat - that the means chosen
by it must be reasonably adapted to the end permitted by the
Constitution. We cannot say that its choice here was not so
adapted. The Constitution requires no more.
Id. at 261-62.
C. Application to S. 466
All states have statutes authorizing the carrying of handguns in
public places for lawful self-defense.40
The large majority of states have reciprocity agreements with
other states, so that a carry permit issued to residents of state A
may be used by those residents when they visit state B, and vice
versa. A few states—including California, New York, and New
Jersey—refuse to enter into reciprocity agreements with any
of their sister states, and they have no provision allowing a
non-resident to apply for a permit.
For decades, many states have recognized reciprocity. There does
not appear to have been much, in any, caused by visitors who were
lawfully bearing arms, pursuant to reciprocity agreements. Thus, in
the minority of states that absolutely prohibit licensed carry by
non-residents, “there is not substantial reason for the
discrimination beyond the mere fact that they are citizens of other
states.” The discrimination denies the “right to be
treated as a welcome visitor rather than an unfriendly alien when
temporarily present in the second State.” The discrimination
imposes “qualitative” impediments on interstate
As with Samuel Hoar, the government of the visited state is
affirmatively interfering with visitors’ right to travel in
safety and security.
Notably, the need to be prepared for self-defense is especially
acute when one is traveling in a different state. At home, one will
be familiar with the relative safety of different parts of town at
different times of the day. A visitor will not have such
familiarity, and could more easily end up in a dangerous area.
Similarly, a person who goes out for a walk in her hometown will
know that while there may be several ways to get from A to B, one
particular route is well-lit, with busy streets, and many
businesses that are open at night, in which one could seek refuge
in case of trouble. A visitor will not have such detailed
Tourists and other visitors are particularly targeted by
criminals. Their style of dress or mannerisms may indicate that
they are not familiar with local mores. Because they are not local
residents, they are known to be less able to make another trip to
testify in court against the criminal, so the criminal has a
greater sense of impunity in attacking a tourist.41
For the traveler who has been disarmed by the host state, the
alternative to stay shut up in one’s hotel room at night. Or to
spend all one’s time solely in a small tourist zone which has a
heavy police presence. To be forced to do so is to be deprived of
the constitutional right to travel freely throughout the United
States of America.
As in the Heart of Atlanta case, or most other laws
enacted under section 5 of the Fourteenth Amendment, S. 466 is not
the only possible step that Congress could take to solve the
problem. Congress could deploy tens of thousands of new federal law
enforcement officers all over America, dedicated solely to the
protection of interstate travelers. Congress has already enacted
criminal laws against persons who attempt to interfere with a
person’s right to interstate travel,42 and Congress
could enact additional such statutes. Congress could create a civil
cause of action on behalf of any interstate traveler who was
injured because state action deprived her of the practical means of
Congress can instead choose to enact S. 466, which is less
intrusive than the other alternatives. S. 466 puts no new federal
officials into the states, does not force any state officials to do
anything, and imposes no new federal criminal penalties on anyone.
S. 466 simply requires that state and local officials not interfere
with the lawful defensive carrying of handguns by interstate
visitors, provided that in carrying, the visitors follow the
same laws about the manner and places of carrying that are
applicable to residents of the host state.
III. Congressional enforcement of the Right to Bear Arms
Even without the right to travel, S. 466 is constitutionally
sound based on Congress’s power under section 5 of the
Fourteenth Amendment to enforce the rest of that Amendment.
A. Heller and the Right to Bear
The Second Amendment guarantees the pre-existing “right to
keep and bear Arms.” District of Columbia v.
Heller, 554 U.S. 570 (2008). The full scope of the
Second Amendment is protected from state or local government
infringement by section 1 of the Fourteenth Amendment. Section 1
declares, in part: “No State shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of life,
liberty, or property without due process of law….” In 2012,
McDonald v. Chicago held that state and local governments
must respect the Second Amendment right.43
Congress has broad powers under section 5 to enforce protection
of the rights in section 1. Congress may go further than the courts
have, by enacting prophylactic measures to protect a right. These
measures must be “congruent and proportional” to the
problem addressed. E.g., Tennessee v. Lane, 541 U.S. 509
(2004). When courts have not defined the full contours of a
constitutional right, Congress may use its section 5 powers to
provide protections in gray areas.
What Congress may not do is defy a direct Supreme Court
precedent about the scope of a right. Thus, when the Supreme Court
ruled that a particular judicial standard of review should apply to
cases involving the First Amendment right of free exercise of
religion, Congress could not enact a statute that changed the
standard of review. City of Boerne v. Flores, 521 U.S. 507
Notably, the Boerne Court itself reaffirmed that
Congress’s powers under section 5 are not limited to
practices that the Supreme Court has explicitly declared
unconstitutional. For example, although the Supreme Court had ruled
that literacy tests for voters, if fairly administered, are not
unconstitutional,44 Congress outlawed literacy tests in
the Voting Rights Act of 1965. The Court upheld the
ban.45 Boerne cited the literacy test cases with
approval, and stated that “Legislation which deters or
remedies constitutional violations can fall within the sweep of
Congress’ enforcement power even if in the process it
prohibits conduct which is not itself unconstitutional and intrudes
into ‘legislative spheres of autonomy previously reserved to
the States.’” Boerne at 517-18.
Thus, if Heller and McDonald had been silent on the
right to bear arms, S. 466 would be legitimate under section 5,
because Congress would be protecting rights in a gray zone left
unclear by the Court.46
According to Heller, the right to “bear
Arms” includes the right to “carry weapons in case of
confrontation” for the “core lawful purpose of
self-defense.” Heller, 554 U.S. at 592, 630.
The Heller opinion made it clear that not all gun
controls are unconstitutional, and listed some “presumptively
lawful regulatory measures.” According to the Supreme Court:
“nothing in our opinion should be taken to cast doubt on
longstanding prohibitions on the possession of firearms by felons
and the mentally ill, or laws forbidding the carrying of firearms
in sensitive places such as schools and government buildings, or
laws imposing conditions and qualifications on the commercial sale
These are the exceptions that prove the rules. Under
Heller, ordinary citizens have Second Amendment rights to
possess guns, but convicted felons and the mentally ill do not. Gun
sales may not be banned, but there may conditions and
qualifications for gun stores. The Second Amendment right includes
the right to carry guns, but not to carry in “sensitive
The Heller Court explicated the right to bear arms by
approvingly citing and discussing state cases involving the right.
Each of these cases came to the same conclusion: a state could ban
concealed carry of handguns, if and only if the state also allowed
the open carry of handguns. Thus, a legislature could
regulate the mode of carry as long law-abiding citizens
could actually exercise the right to carry.
For example, State v. Reid, 1 Ala. 612, 616-17 (1840),
upheld a ban on carrying a weapon concealed, but added: “A
statute which, under the pretence of regulating, amounts to a
destruction of the right, or which requires arms to be so borne as
to render them wholly useless for the purpose of defence, would be
clearly unconstitutional.” This sentence is quoted in
Heller as an accurate expression of the right to bear
Likewise cited by the Supreme Court as an accurate reading of
the Second Amendment was Nunn v. State, 1 Ga. 243
(1846).49 That case, relying on the Second Amendment
struck down a general ban on carrying handguns for protection. Nunn
upheld a ban on concealed carry, because open carry was
Heller also relied on State v. Chandler, 5 La.
Ann. 489 (1850). As Heller put it: “the Louisiana
Supreme Court held that citizens had a right to carry arms openly:
‘This is the right guaranteed by the Constitution of the
United States, and which is calculated to incite men to a manly and
noble defence of themselves, if necessary, and of their country,
without any tendency to secret advantages and unmanly
Likewise, in Andrews v. State, 50 Tenn. 165 (1871), the
Tennessee Supreme Court equated the state constitutional provision
to the Second Amendment, and struck down a law against carrying
handguns “publicly or privately, without regard to time or
place, or circumstances.” Heller at 629.
The Heller Court also approvingly cited other legal
authorities stating that the right to arms included the right to
carry defensive arms.51
The states that have caused the problem addressed by S. 466 have
done what Reid, Chandler, Nunn, Andrews—and
Heller—forbid. For visitors, these states have
eliminated the right to bear a handgun for lawful protection.
B. McDonald and the Right to Bear Arms
Discussion the constitutional violations that the Fourteenth
Amendment was designed to remedy, Justice Alito’s opinion in
McDonald pointed out the Mississippi statute providing that
“no freedman, free negro or mulatto, not in the military
service of the United States government, and not licensed so to do
by the board of police of his or her county, shall keep or carry
fire-arms of any kind … .”52 McDonald
also cited to a Louisiana law: “No negro who is not in the
military service shall be allowed to carry firearms, or any kind of
weapons, within the parish, without the written special permission
of his employers, approved and indorsed by the nearest and most
convenient chief of patrol.”53
McDonald described a convention of black citizens in
South Carolina who sent a petition to Congress stating that the
Constitution “explicitly declares that the right to keep and
bear arms shall not be infringed” and urging that “the
late efforts of the Legislature of this State to pass an act to
deprive us [of] arms be forbidden, as a plain violation of the
Constitution.”54 Rep. George Washington Julian
(R-Ind.) decried that South Carolina law and a similar Florida
Although the civil rights bill55 is now the law, . .
. [it] is pronounced void by the jurists and courts of the South.
Florida makes it a misdemeanor for colored men to carry weapons
without a license to do so from a probate judge, and the punishment
of the offense is whipping and the pillory. South Carolina has the
same enactments; and a black man convicted of an offense who fails
immediately to pay his fine is whipped… . Cunning legislative
devices are being invented in most of the States to restore slavery
CONG. GLOBE, 39th Cong., 1st Sess., 3210 (June 16, 1866).
“The most explicit evidence of Congress’ aim”
regarding the Fourteenth Amendment, McDonald continued,
appeared in Freedmen’s Bureau Act of 1866. It guaranteed
“the right … to have full and equal benefit of all laws
and proceedings concerning personal liberty, personal security, and
the acquisition, enjoyment, and disposition of estate, real and
personal, including the constitutional right to bear arms …
Justice Thomas’s McDonald concurrence referred to
states that “enacted legislation prohibiting blacks from
carrying firearms without a license.” The opinion quoted
Frederick Douglass: “the black man has never had the right
either to keep or bear arms”—a problem the Fourteenth
Amendment aimed to remedy.57
C. Concealed handguns?
As accurately noted by Heller, many state courts have
upheld bans on concealed carry.58 S. 466 applies only to
concealed carry. If S. 466 were applied to a state that
banned visitors from carrying concealed, and if that state allowed
open carrying by visitors, then there might be a serious question
about whether S. 466 could be applied to such a state pursuant to
Congress’s Fourteenth Amendment powers.59 However,
there is no such state. States such as New York and New Jersey that
are obliterating the constitutional rights of visitors are no more
tolerant of open carry by visitors than they are of concealed
carry. For all practical purposes, all defensive carry by visitors
Accordingly, Congress may in its discretion enact national
reciprocity for concealed carry rather than for open carry. Like
any legislature, Congress may make a choice between preferring one
mode of carry over another. Further, Congress may, in enacting
system based on interstate reciprocity of licenses, take into
account the fact that 49 states have laws to issue
licenses to residents for concealed carry, but only a few
issue licenses for open carry.60
IV. Constitutionality based on the handgun’s having been
shipped or transported in interstate commerce.
S. 466 is justified by original public meaning of the Fourteenth
Amendment, which granted Congress the power to protect the rights
to travel and to bear arms. In addition, Supreme Court precedents
strongly support congressional use of Interstate Commerce Clause to
protect the right to interstate travel.
S. 466 could also be upheld under a different theory: the bill
only applies to a gun that has previously moved in interstate
commerce.61 The gun having once been an item of
interstate commerce, it forever remains subject to Congress’s
interstate commerce power.
I have previously criticized this theory, which extremely far
removed from the original meaning of the Interstate Commerce Clause
and from common sense.62 Many other federal gun control
laws contain the same jurisdictional element. These include:
- The statute barring various categories of persons from
possessing firearms and ammunition. Gun Control Act of 1968, 18
U.S.C. § 922(g) & (n). Notably, this law applies to
individuals whose personal current possession of the arm does not
involve interstate commerce. The state border crossing might have
occurred decades ago, unconnected to the individual.
- The version of the Gun-Free School Zones Act (GFSZA) that
Congress enacted in 1995, after an earlier version of the GFSZA was
ruled unconstitutional by the Supreme Court in United States v.
Lopez.63 18 U.S.C. 922(q). This law applies to gun
carrying within a state regardless of whether the carrying has to
do with interstate commerce. The revised the GFSZA has been upheld
in lower courts.64 Like S. 466, the GFSZA controls the
conditions for carrying handguns in public places.
- Law Enforcement Officers Safety Act. 18 U.S.C. § 926B&C
(LEOSA). This law allows gun carrying by qualified active and
retired law enforcement personnel, and protects their travel
In some other areas, Congress has enacted Interstate Commerce
Clause legislation that does not even contain the jurisdictional
predicate of an interstate border crossing. For example, the
Controlled Substances Act applies to intrastate non-commercial
possession of controlled substances that have never crossed a state
border. Indeed the Act even applies to medical marijuana lawfully
cultivated under state law, and which never leaves the home of the
A court decision that held S. 466 to be beyond the scope of
congressional interstate commerce would necessarily mean that many
federal laws on guns, drugs, and other items are unconstitutional.
Whether such a sweeping change would be beneficial is a matter on
which there is disagreement.
In the unlikely event that a dramatic reversal of modern
precedent occurred, S. 466 would retain a solid constitutional
foundation based on section 5 of the Fourteenth Amendment (the
power to protect interstate travel and to protect the right to bear
arms). Even without the jurisdictional predicate about the handgun
itself, S. 466 is also well-founded on a longstanding congressional
interstate commerce power to protect interstate travel.
1 554 U.S. 570, 624-25 (2008) (affirming 1934
National Firearms Act restrictions on machine guns).
2 Under the National Firearms Act, an automatic
(which the statute calls a “machine gun”), is something
that makes a gun fire two or more rounds “by a single
function of the trigger.” A bump stock does not make a single
trigger press fire more than one round, so it is not covered by the
current statute. Instead, a bump stock can be used to push the
trigger rapidly towards the finger.
3 ATF Rulings 1994-1, 1994-2, https://www.atf.gov/firearms/docs/ruling/1994-2-striker-12-
shotgun-defined-nfa-weapon/download. ATF was applying 26 U.S.C.
§ 5845(f), which gives ATF discretion to classify some
shotguns as “destructive devices.”
4 ATF Ruling 2001-1 (registration window for the
shotguns will end on May 1, 2001; “although the
classification of the three shotguns as NFA weapons was
retroactive, the prospective application of the tax provisions
allowed registration without payment of tax”), https://www.atf.gov/firearms/docs/ruling/2001-1-destructive-device-usas-12-andstreetsweeper-shotguns/download.
5 Under federal law and the law of 37 states, machine
guns are legal to own. But a buyer must go through an onerous
registration process with ATF, which typically takes half a year or
more. There is a $200 tax on each acquisition. Machine guns
manufactured after May 19, 1986, can only be possessed by
6 See David B. Kopel & Joseph G.S. Greenlee, The
Federal Circuits’ Second Amendment Doctrines, 61 ST.
LOUIS UNIVERSITY LAW JOURNAL 193, 233-35 (2017) (surveying
post-Heller Circuit Court of Appeals decisions on machine guns),
7 The North American Model of Wildlife Conservation,
which has been adopted everywhere in the U.S. and Canada, requires
hunters to take aimed shots, not to blast away with rapid
inaccurate fire. This is one aspect of the Model’s principle
of “fair chase.” See generally J.F. ORGAN ET
AL., THE NORTH AMERICAN MODEL OF WILDLIFE CONSERVATION (The
Wildlife Society and The Boone and Crockett Club, Technical Review
12-04, Dec. 2012), http://wildlife.org/wpcontent/uploads/2014/05/North-American-model-of-Wildlife-Conservation.pdf.
8 For example, some rifles have a forward grip,
similar to a handgun grip. If the user replaces the factory grip
with a grip molded to fit the user’s hand, the user will have
stronger control over the rifle. Thus, the user will be able to
9 United States v. Bean, 537 U.S. 71 (2002)
(discussing history of the appropriations rider; holding that
courts may not review the ATF’s failure to consider a petition for
relief from disabilities).
10 The Second Amendment is the only constitutional
right that may be forfeited for a lifetime, based on a single
11 See, e.g., Wyoming ex rel. Crank v. U.S.,
593 F.3d 1236, 1247 (10th Cir. 2008) (express
restoration of firearms rights pursuant to state law did not
protect the defendant from being federally prosecuted as a
12 Logan v. U.S., 552 U.S. 23 (2007).
13 The federal misdemeanor ban does not apply to
“an offense for which the person has been pardoned or has had
civil rights restored (if the law of the applicable jurisdiction
provides for the loss of civil rights under such an offense) unless
the pardon, expungement, or restoration of civil rights expressly
provides that the person may not ship, transport, possess, or
receive firearms.” 18 U.S. Code § 921(a)(33)(B)(ii).
14 Caron v. U.S., 524 U.S. 301, 311
15 United States v. Castleman, 134 S.Ct.
1405 (2014) (any offensive or unwanted touching constitutes the
“force” element in the federal Gun Control Act).
16 The District of Columbia, Puerto Rico, and Guam
also have such laws. National Conference of State Legislatures,
State Medical Marijuana Laws, Sept. 14, 2017, http://www.ncsl.org/research/health/state-medical-marijuana-laws.aspx.
17 U.S. CONST., art. I, § 8, cl. 3. The
over-federalization of drug laws is a closely related to the
over-federalization of gun laws. See David B. Kopel & Trevor
Burrus, Sex, Drugs, Alcohol, Gambling, and Guns: The
Synergistic Constitutional Effects, 6 ALBANY GOVERNMENT LAW
REVIEW 306 (2013), http://ssrn.com/abstract=2232257.
18 Jacob Sullum, Hawaii, Which Registers Guns and
Medical Marijuana Users, Starts Disarming Patients,
Reason.com, Nov. 29, 2017, http://reason.com/blog/2017/11/29/hawaiiwhich-requires-registration-of-al.
19 See Richard Perez-Pena, Problems Plague System
to Check Gun Buyers, NEW YORK TIMES, July 27, 2015; Michael S.
Schmidt, Background Check Flaw Let Dylann Roof Buy Gun, FBI
Says, NEW YORK TIMES, July 10, 2015.
20 See Firearms Purchase & Permitting in New Jersey,
Report to Governor, of New Jersey Firearms Purchase and Permitting
Study Commission, Dec. 21, 2015, pp. 5-9, & Appendix A,
also N.J. Atty. Gen., Attorney General Law Enforcement Directive
no. 2016-4, Apr. 8, 2016 (ordering reforms, including obedience to
the 30-day law), http://www.nj.gov/oag/newsreleases16/Permits-toCarry-Firearms_Directive.pdf.
21 Greg Adomaitis, N.J. gun association calls Berlin
woman’s death an ‘absolute outrage’, NJ.COM, June 5,
22 H.R. Rep. No. 103-344, 103rd Cong., 1st Sess. 1993
(Judiciary Committee), Nov. 10, 1993 (to accompany H.R. 1025)
(describing history of predecessor bills); 1993 WL 465097, 1993
U.S.C.C.A.N. 1984; P.L. 103-159, Brady Handgun Violence Prevention
Dates of consideration and passage were: House, November 19, 22,
1993; Senate: November 19, 20, 24, 1993.
The House Conference Report was No. 103-412, Nov. 22, 1993 (To
accompany H.R. 1025)
23 H.R. Rep. No. 103-341, 103rd Cong., 1st Sess.
1993, Providing for Consideration of H.R. 1025 (Nov. 9, 1993); 1993
24 Roll No. 559.
25 Brady Handgun Violence Prevention Act, 139 CONG.
REC. H9098-03, 103rd Cong., 1st sess., Nov. 10, 1993.
27 CAL. PENAL CODE § 27540(a).
28 The written testimony on S. 466 is based in part
on Kopel’s prior testimony: United States House of
Representatives Subcommittee on Crime, Of the Committee on the
Judiciary, “Regarding interstate recognition of handgun carry
permits H.R. 822,” 112th Cong., 2d sess., Sept. 13, 2011,
29Paul v. Virginia (1868), supra,
was over-ruled on other grounds in United States v. S.E.
Underwriters Ass’n, 322 U.S. 533 (1944). Paul’s
explication of Article IV privileges and immunities remains good
law, and had been quoted with approval in Hicklin v. Orbeck, 437
U.S. 518, 524 (1978) and Baldwin v. Montana Fish and Game
Comm’n, 436 U.S. 371, 380-81 (1978).
30 In dissent, Chief Justice Rehnquist and Justice
Thomas argued that that there was no violation of the right to
travel in the case at bar: California’s rule that new
arrivals to the state would for their first year in California
receive welfare benefits at the levels of their previous state,
rather than the higher payments provided in California.
The dissenters agreed, however, that “The right to travel
clearly embraces the right to go from one place to another, and
prohibits States from impeding the free interstate passage of
citizens.” Further, “Nonresident visitors of other
States should not be subject to discrimination solely because they
live out of State.” Sáenz at 511-12 (Rehnquist,
The dissenters’ main argument was that the majority was
conflating the right to travel with the separate right to become a
citizen of another state. That criticism, whether or not it is
correct, does not bear on S. 446, because S. 446 only involves pure
travel, not immigration to another state.
31 “[W]ithout some provision … removing
from citizens of each State the disabilities of alienage in the
other States, and giving them equality of privilege with citizens
of those States, the Republic would have constituted little more
than a league of States; it would not have constituted the Union
which now exists.” Article IV, section 2, removes “from
the citizens of each State the disabilities of alienage in the
other States.” Paul v. Virginia, 8 Wall. 168, 180
32 Variations of this phrase appear in four other
cases, starting in 1948.
33 Randy Barnett, Whence Comes Section One? The
Abolitionist Origins of the Fourteenth Amendment, 3 JOURNAL OF
LEGAL ANALYSIS 165 (2011). To remove any doubt, the drafters of the
Fourteenth Amendment made sure to put “Privileges or
Immunities of citizens of the United States” in section 1 of
the Fourteenth Amendment, and a congressional enforcement power in
section 5. Kurt T. Lash, The Origins of the Privileges or
Immunities Clause, Part II: John Bingham and the Second
Draft of the Fourteenth Amendment, 99 GEORGETOWN LAW JOURNAL
34 A second offense was punishable by enslavement.
Hoar had previously served in the U.S. House, and he also had a
long career, before and after 1844, in the Massachusetts
legislature. The Governor of Massachusetts had appointed him to go
to South Carolina to carry out the Massachusetts
legislature’s instructions to collect information about the
seizure of Massachusetts free black citizens in South Carolina, and
to bring lawsuits challenging the constitutionality of the South
35 See Massachusetts General Court, Joint special
committee on the treatment of Samuel Hoar by the state of South
Carolina, Resolve and declaration (1845).
36 He later served as Secretary of the Treasury, and
Secretary of State, and is best known today as the sponsor of the
Sherman Antitrust Act.
37 CONG. GLOBE, 39th Cong., 1st Sess. 41 (Dec. 13,
38 CONG. GLOBE, 39th Cong., 1st Sess. 474 (Jan. 29,
1866). See also CONG. GLOBE, 39th Cong., 1st Sess. 1066
(Feb. 27, 1866) (Rep. Hiram Price, of Iowa, regarding the proposed
privileges or immunities clause of the Fourteenth Amendment:
“I want to have a Constitution that will protect my children
and my children’s children who may have occasion to travel in
any part of the United States.”).
For more on Trumbull, see David B. Kopel, Lyman Trumbull: Author of the
Thirteenth Amendment, Author of the Civil Rights Act, and the First
Second Amendment Lawyer, 47 LOYOLA UNIVERSITY CHICAGO LAW
JOURNAL 1117 (2016).
39 CINCINNATI COMMERCIAL, Aug. 31, 1866, p. 2 (report
of speech at Coshocton, Ohio, Aug. 28). Delano had been a U.S.
Representative and a State Representative, and would later serve as
Commissioner of Internal Revenue and as Secretary of the
40 Only Vermont has no procedure to issue licenses.
Ever since a 1903 court decision, Vermont has allowed concealed
carry by persons who can legally possess handguns. State v.
Rosenthal, 75 Vt. 295 (1903).
Several other states do not require carry licenses, but they do
issue carry permits to applicants who meet the requisite standards.
Applicants seek these optional permits in order to take advantage
of interstate reciprocity agreements. Also in these states, carry
with a permit may be allowed in certain places where unlicensed
carry is not allowed. Besides Vermont, the states that do not
require carry permits are Alaska, Arizona, Idaho, Kansas, Maine,
Mississippi, Missouri, New Hampshire, North Dakota, West Virginia,
41 Ronald W. Glensor & Kenneth J. Peak, U.S.
Department of Justice, Crimes Against Tourists, Office of
Community Oriented Policing Services, Problem-Oriented Guides for
Police, ProblemSpecific Guides Series No. 26 (Aug.) 2004, available
42 The modern application of this Reconstruction era
civil rights statute is discussed in United States v.
Guest, 383 U. S. 745 (1966).
43 In McDonald, four Justices thought that
the work of applying the Second Amendment to the states was done by
the second clause (the “liberty” clause), while Justice
Thomas thought that the work was done by the first clause
(“privileges or immunities”). McDonald v. Chicago, 561
U.S. 742 (2010). For purposes of S. 466, the relevant legal fact is
that the Second Amendment is made fully applicable to the states by
44 Lassiter v. Northampton County Bd. of
Elections, 360 U.S. 45 (1959).
45 South Carolina v. Katzenbach, 383 U.S.
301 (1966); Katzenbach v. Morgan, 384 U.S. 641 (1966); Oregon
v. Mitchell, 400 U.S. 112 (1970). As the Boerne Court pointed
out, the Voting Rights Act was based mainly on Congress’s
enforcement power in section 2 of the 15th Amendment, and the
doctrinal analysis for the Fourteenth Amendment’s enforcement
power in section 5 is identical. (The two sections have only minor,
non-substantive differences in wording.)
46 What might constitute a violation of City of
Boerne, in the context of S. 466? Let’s imagine that the
Supreme Court had handed down a decision that the Second Amendment
right to “keep” arms is an absolute right for everyone
to have guns at home for any purpose. Further imagine that the
Court also said the right to bear arms was solely for the militia.
Then S. 466 would not be appropriate under section 5, because it
protects bearing arms all many citizens, not just the militia.
An 1840 Tennessee Supreme Court case interpreted the state
constitution this way, and said that the Second Amendment means the
same thing. Aymette v. Tennessee, 2 Humphreys 154 (Tenn.
1840). Regarding Aymette, the Heller Court wrote,
“This odd reading of the right is, to be sure, not the one we
adopt …” Heller at 613.
47 Id. at 626-27.
48 Heller at 629.
49 Cited in Heller at 612-13. For a detailed
survey of early state and federal caselaw on the Second Amendment,
and the modern Supreme Court’s treatment of that caselaw,
see David B. Kopel, The First Century of Right to Arms
Litigation, 14 GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY 127
50 Heller at 613.
51 WILLIAM HAWKINS, A TREATISE OF THE PLEAS OF THE
CROWN 72 (1716) (there is “no Reason why a Person, who
without Provocation, is assaulted by another in any
Place whatsoever, in such a Manner as plainly shews an
Intent to murder him, …may not justify killing such an
Assailant”) (emphasis added), cited in Heller at
“The understanding that the Second Amendment gave freed
blacks the right to keep and bear arms was reflected in
congressional discussion of the bill, with even an opponent of it
saying that the founding generation ‘were for every man
bearing his arms about him and keeping them in his house, his
castle, for his own defense.’ CONG. GLOBE, 39th Cong., 1st
Sess., 362, 371 (1866) (Sen. Davis).” Heller at
52 McDonald v. City of Chicago, 561 U.S.
742, 771 (2010).
53 McDonald at 279-280 (“see also
Regulations for Freedmen in Louisiana, in id. [1 DOCUMENTARY
HISTORY OF RECONSTRUCTION 289 (W. Fleming ed. 1950)]”). 5
54 McDonald at 771, n.18, quoting STEPHEN.
HALBROOK, FREEDMEN, THE FOURTEENTH AMENDMENT, AND THE RIGHT TO BEAR
ARMS, 1866-1876, at 9 (1998).
55 Civil Rights Act of 1866, 14 Stat. 27-30 (Apr. 9,
56 McDonald at 773.
57 McDonald at 847, 849 (Thomas, J.,
58 “[T]he majority of the 19th-century courts
to consider the question held that prohibitions on carrying
concealed weapons were lawful under the Second Amendment or state
analogues.” Heller at 629.
59 In other words, there would be a question under
the Tennessee v. Lane line of cases about whether the
congressional remedy was “congruent and
60 Most states have statues that require the issuance
of concealed carry licenses to law-abiding citizens based on
standards that a reasonable law-abiding adult can meet. See, e.g.,
ARK. CODE ANN. § 5-73-309(a); COLO. REV. STAT. ANN. §
18-12-203(1); FLA. STAT. ANN. § 790.06(2); GA. CODE ANN.
§ 16-11-129; IDAHO CODE ANN. § 18-3302(1); IND. CODE ANN.
§ 35-47-2-3(e), IOWA CODE ANN. § 724.7; KANSAS STAT. ANN.
§ 75-7c03; KY. REV. STAT. ANN. § 237.110(2); LA. REV.
STAT. ANN. § 40:1379(A)(1); ME. REV. STAT. ANN. tit. 25,
§ 2003; MICH. COMP. LAWS ANN. § 28.422(2)(3); MINN. STAT.
§ 624.714, subdiv. 2(b); MISS. CODE ANN. § 45-9-101(2);
MO. ANN. STAT. § 571.090(1); MONT. CODE ANN. §
45-8-321(1); NEB. REV. STAT. § 28-1202; NEV. REV. STAT. ANN.
§ 202.3657(2); N.H. REV. STAT. ANN. § 159.6; N.M. STAT.
ANN. § 29-19-4; N.C. GEN. STAT. § 14-415.11(b); N.D.
CENT. CODE § 62.1-04-03; OHIO REV. CODE ANN.
§2923.125(D)(1); OKLA. STAT. ANN. tit. 21, § 1290.12(12);
OR. REV. STAT. ANN. § 166.291; 18 PA. CONS. STAT. ANN. §
6109(e); S.C. CODE ANN. § 23-31-215(A); S.D. CODIFIED LAWS
§ 23-7-7; TENN. CODE ANN. § 39-17- 1351(b); TEX.
GOV’T CODE ANN. § 411.177(a); UTAH CODE ANN. §
53-5-704(1)(a); VA. CODE ANN. § 18.2-308(D); WASH. REV. CODE
ANN. § 9.41.070(1); W. VA. CODE ANN. § 61- 7-4(f).
Eight states are problematic in respect to issuance of carry
permits. In Hawaii, permits are only issued to a few security
guards. Permits are rarely issued in New Jersey and Maryland. In
California, New York, and Delaware, licensing practices vary by
county, and a minority of counties rarely issue. In Rhode Island
and Massachusetts, town police are the main licensing authorities;
practices range from fair issuance to near prohibition.
61 S. 466 applies to carrying a handgun, “that
has been shipped or transported in interstate or foreign
commerce.” Proposed 18 U.S.C. § 926D(a)(1).
62 David B. Kopel, The Second Amendment in the
Tenth Circuit: Three Decades of (Mostly) Harmless Error, 86
DENVER UNIVERSITY LAW REVIEW 901, 938 (2009); David B. Kopel &
Glenn Harlan Reynolds, Taking Federalism Seriously: Lopez
and the Partial-Birth Abortion Ban, 30 CONNECTICUT LAW REVIEW 59
(1997). See also United States v. Cortner, 834 F. Supp.
242, 243 (M.D. Tenn. 1993), rev’d sub nom. United States v.
Osteen, 30 F.3d 135 (6th Cir. 1994) (“To say … that
because something once traveled interstate it remains in interstate
commerce after coming to rest in a given state, is sheer sophistry.
This Court, at one time, owned a 1932 Ford which was manufactured
in Detroit in the year 1931 and transported to the state of
Tennessee. It remained in Tennessee thereafter. Now if this car
were hijacked today, some sixty years later, is it still in
63 514 U.S. 549 (1995).
64 United States v. Dorsey, 418 F.3d
1038 (9th Cir. 2005); United States v. Danks, 221 F.3d
1037 (8th Cir. 1999).
65 Before LEOSA, all states allowed off-duty gun
carrying by resident active law enforcement. For resident retired
law enforcement, the states either issued permits, or did not
require permits. Pre-LEOSA, most states allowed carry by
non-resident law enforcement, or retired law enforcement, but some
were prohibitive to non-residents.