Is the ‘Constitutional Carry Act’ Constitutional?

I have contemplated this post for over a week now because I know some nut is going to try to use my comments to portray me as anti-2nd Amendment.  So I ask that as we have a conversation about this sensitive issue that everyone have an open mind & remember that my only objective is the discovery of truth.  Anyone who knows me knows that I am plenty pro-gun rights.  But I reject the notion that being ‘pro-something’ means we cannot have adult discussions about whether or not that position is constitutional.  My desire with The Arkansas Patriot, and now with Patriot Talk, is to have a conversation about the constitutionality of an array of issues & the intent of our founders.  This article is simply an attempt to do just that.

Allow me to begin by saying:  I love the 2nd amendment.  I love the 10th amendment.  I love liberty.  I’m also a big believer in original intent–the idea that the founders who wrote the Constitution knew what they meant better than we do, and that their foresight is better than ours.  So this last week when I ran across a headline about one of Arkansas’ U.S. Senators supporting a bill that has been bouncing around Congress for awhile, I felt like this was a good time to have a conversation regarding the federal Bill of Rights & how they apply to the states.

The bill before Congress would reportedly allow concealed carry permit holders to carry across all state lines, a decision that has always been made by the states themselves, not the federal government.  Ironically, the bill is entitled the “Respecting States Rights and Concealed Carry Reciprocity Act.”  But what about this bill respects states’ rights?  And is this even constitutional?

(Of course, I am operating on the premise that some people in this country still value the idea of constitutionality.)

The idea of leaving decisions related to gun laws to the federal government is a debate I have had with many close political, gun-loving friends before.  The general consensus among them has been, “It may not be within the originally intended powers of the federal government to act in this way, but as long as they’re being ‘pro-gun,’ I’m okay with it.”  In other words, “As long as big government is acting the way I want it to, it’s fine.”  Another argument that has been made is, “Well, the 2nd Amendment! What part of ‘shall not be infringed’ do you not understand??’ ”  And lastly, I have been told that I may be right about the original intent of the 2nd Amendment, but “it doesn’t matter, because we passed the 14th Amendment, so the U.S. Constitution does now apply to the states.”  Let’s take these points one at a time.

The idea that we can use big government for our purposes is wrongheaded and dangerous.  It’s a similar reaction that many had in response to the PATRIOT Act.  When Bush was in office & the act was originally passed, many conservatives were okay with the measures taken to keep Americans safe, even if it cost us a little liberty.  We trusted Bush.  But when Obama came into office and we begin to see how some provisions of the act could be abused, many changed their tunes.  Likewise, many who may want to support these efforts to impose gun-friendly laws on states should be leery of what this could mean if Democrats were to once again gain control of both houses of Congress.  Would folks in this camp support the federal government telling businesses that they must allow guns in their stores?  Big, centralized government is still big, centralized government.  I don’t like it ever, regardless of whether or not it appears to be doing something I like.

Then we have the argument that I have somehow missed the ‘shall not be infringed’ clause of the 2nd amendment.  Trust me, I’ve read it, and I’ve studied it.  The problem with this argument is that the 2nd Amendment is part of the U.S. Constitution, not the state constitutions.  Until a series of Supreme Court rulings in the late 19th century (the Slaughter-House Cases) and the passage of the 14th Amendment/Incorporation Clause, the U.S. constitution didn’t trump the states.  The 2nd Amendment restricted the federal government from infringing on gun rights, but it did not restrict the state governments.   It is true that most states passed their own Bill of Rights & amendments similar to the federal version, but the U.S. Constitution was never designed to trump states’ laws.  This was part of the founders design to keep the federal government restrained & states relatively sovereign, allowing for some variation in freedoms.

Look, if California wants to outlaw guns, that’s fine with me.  I really could not care less.  I am not going to live there, and they’re probably going to do it anyway, so be my guest.  But if Arkansas tried to restrict gun rights in any way, I would be up in arms (see what I did there?).  This is my state, where I live, and I like our freedom.  We should have the right as a state to determine how we are going to handle gun issues.

This design is truly part of the beauty of the system that the founders designed:  We are one nation, united under one federal government, but we still have local control over critical issues of freedom.  If I don’t like the laws in Arkansas, I can move to Texas.  But if the feds pass a stinker of a law, where am I to go?  States were designed to be laboratories of democracy.  Bills like the federal right to carry stomp on that design.

Now, as for the argument that ‘the 14th Amendment changed all that:’  Yes, the 14th Amendment did change some things, many of them positive, like standardizing citizenship & providing equal protection.  But how silly is it to think that an amendment passed in 1868 could change the original intent of the founders nearly 100 years prior?  I am a little rusty on my con-law, but I believe a look at the congressional record will show that many conservative congressmen at the time were very concerned that the 14th Amendment would be used in the exact way it has been, endlessly expanding the federal government’s power.  Proponents of the amendment argued it would be not be used in that way.  So you could say that even the original intent of the 14th Amendment isn’t being applied.

The bottom line is this:  We either believe in original intent, or we believe in a ‘living document’  We are either against big government, or we are for big government.  We are either against federal mandates or we are for federal mandates.  We cannot have it both ways.

If we are for big government, we should 1. Stop calling ourselves conservatives & 2. Brace ourselves.  Because you see, a government that is big & powerful enough, outside of its constitutional authority, to mandate that states accept gun-friendly laws is a government big enough to take guns away.  

From my perspective, a national right to carry bill is dangerous and unconstitutional.  Once we allow the federal government the right to force states to recognize concealed carry permits, we have officially opened the door to allowing the feds to take the permits away.

Nic Horton

(Send hate mail to ArkansasPatriot(at)gmail.com or hate tweets @nhhorton/@ArkansasPatriot) 

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11 comments

  1. amiles42

    In my opinion, this is a very dangerous first step towards gun control on a national level. The bill is being used as candy to lure us into the trap. If we say its okay for the feds to establish such a law then we will also have to say its okay once they begin to impose restrictions, which they surely will.

    As with the issuance and suspension of driver’s licenses, cross border concealed carry is better addressed through compact agreements between the states.

    • The Dude

      Sir,
      according to your logic would a state be able to decide that it did not want to accept, say the 13th Amendment? Whenever I hear someone talk about the 2nd Amendment in a negative light, ie. ( it was written so long ago, Founding Father’s didn’t have AK-47’s etc.) I like to take “2nd Amendment” out and insert any other…. the argument usually dies quickly. FOR Example: “There was no twitter back in the Founder’s day, and I don’t think they would want vulgarity on the internet so let’s do away with that pesky 1st Amendment……”

  2. Backgammon

    State rights, trumph! I do not trust the Federal Government with tax dollars, ideas, decisions, takeovers, knowing what is best for me.

  3. KBCraig

    To be truly constitutional, it would have to reject the very idea of permits or licenses. It doesn’t do that.

    People supporting this typically argue that concealed carry licenses should be treated just like driver’s licenses. Guess what? They already are!

    There is no federal mandate that states must accept driver’s licenses. States do so by mutual compact. After all, South Dakota didn’t even license drivers until 1953.

  4. Skip Doty

    United States is the key here it is called the United States Constitution, not simply the Constitution and all states that fly there flag under the United States are bound by This United States Constitution otherwise we are simply 50 different countries, and you can’t go in places like Colorado and California and arrest all those folks selling medicinal marijuana now can you?
    Look Our Constitution says as a United States citizen of which I am, that I have the Right to bear Arms, NO State has the right to tell me I can’t because it is bound by this same Constitution and has been over ruled by the Supreme Court on Gun ban laws all over this country when contested, in my mind it puts an end to all the individual states once and for all trying to take away our Gun rights unconstitutionally without each person taking them to court, I should be able to move to any state I want because the United States Constitution protects my rights in all of them!
    Skip

  5. Pingback: Patriot Week In Review: Local Media Hits New Low, Candidates Discuss Obamacare, Patriot Talk, & Joe Biden Thanks Dr. Pepper «
  6. elizabethnokleby

    It is pretty funny hearing people say they uphold states’ rights and support the reciprocity act in one breath. While I do still think it is unlawful for states’ to outlaw guns on any level (be it keeping them for hunting, concealed carry, or open carry), a reciprocity act would be a mess. All states would necessarily have to have the same exact laws regarding guns on all levels, or else each person with a license to conceal would have to learn the laws of each differing state. States should have the authority to make up their own laws regarding where and when a weapon may or may not be carried (though I think they do themselves a dis-service any time they do not allow guns, save in the instance of a bar). But I agree, with you for the most part. It seems now that the government has to have a lot more power to grant liberties than it does to take them away. And, anytime they do so, it opens up that liberty to even more government regulation. Well done!

    • Arkansas Patriot

      Great comments! We also have to consider that once we ‘invite’ the feds into this process that there may be states who eliminate their concealed carry licenses altogether because they do not want gun carriers from other states coming in. This is part of the beauty of the system that the founders designed! And we are losing it because too many people (and politicians) either don’t understand it or do not care. Hopefully we can make a difference.

  7. Skip Doty

    ” We also have to consider that once we ‘invite’ the feds into this process that there may be states who eliminate their concealed carry licenses altogether because they do not want gun carriers from other states coming in.”

    It seems as if you are saying that the right to bear arms according to the Constitution is up to each state to decide?

    I do not believe this to be true!

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