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 .…”56
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 is prohibited.
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 rights.65
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 patient‐cultivator.
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 government agencies.
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), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2767979.
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 fire faster.
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 misdemeanor conviction.
11See, 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 prohibited person).
12Logan 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).
14Caron v. U.S., 524 U.S. 301, 311 (1998).
15United 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, http://nj.gov/governor/news/reports/pdf/20151221123919328.pdf. See 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, 2015, http://www.nj.com/camden/index.ssf/2015/06/nj_gun_association_calls_berlin_womans_death _an_ab.html.
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 Act.
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 WL 463152.
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, http://davekopel.org/Testimony/HR822–Kopel.pdf.
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, C.J., dissenting).
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 (1869).
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 329 (2011).
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 Carolina statute.
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, 1865).
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 Interior.
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, and Wyoming.
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 at www.cops.usdoj.gov.
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 section 1.
44Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45 (1959).
45South 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.
47Id. at 626–27.
48Heller 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 (2016).
50Heller 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 582.
“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 615–16.
52McDonald v. City of Chicago, 561 U.S. 742, 771 (2010).
53McDonald at 279–280 (“see also Regulations for Freedmen in Louisiana, in id. [1 DOCUMENTARY HISTORY OF RECONSTRUCTION 289 (W. Fleming ed. 1950)]”). 5
54McDonald 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, 1866).
56McDonald at 773.
57McDonald at 847, 849 (Thomas, J., concurring).
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 proportional.”
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 interstate commerce?”).
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.