Making a national concealed carry bill constitutional

  • 28 March 2017
  • NormanL
Making a national concealed carry bill constitutional

Congress is debating legislation that would "allow a qualified individual to carry a concealed handgun into or possess a concealed handgun in another state that allows individuals to carry concealed firearms."

Despite its good intentions, the law may be unconstitutional. And three law professors -- Stephen Sachs of Duke, Randy Barnett of Georgetown, and William Baude of the University of Chicago --  prepared and sent a letter to Congress describing ways to make the bill statnd up to constitutional muster.

Among their sugestions -- switching the constitutional emphasis from the Commerce Clause, which could result in a number of unintended consequences, to the Full Faith and Credit Clause:

Congress has other powers that would be more appropriate. The Full Faith and Credit Clause empowers Congress to “prescribe * * * the Effect” of state acts, records, or judicial proceedings in other states. U.S. Const. art. IV, § 1. For instance, the Full Faith and Credit for Child Support Orders Act requires certain state child support laws to be given their full effect in every other state. See 28 U.S.C. § 1738B(h). Similarly, the Parental Kidnaping Prevention Act requires every state to recognize certain child custody judgments from other states, and it forbids them from exercising their ordinary jurisdiction over such disputes. See 28 U.S.C. § 1738A.

Congress has used this power only rarely, but soon after the Founding it often debated doing so. See generally S. Sachs, Full Faith and Credit in the Early Congress, 95 Va. L. Rev. 1201 (2009). For example, a bill in the Thirteenth Congress would have entitled the executor of a will or the administrator of an estate to exercise similar authority in other states where the decedent held property. H.R. 45, 13th Cong., 2d Sess., § 4 (1814). Another bill in the Fifteenth Congress would have made the authority of bail bondsmen in one state legally effective in every other state, so that bondsmen could recapture fugitives who had fled across state lines. H.R. 17, 15th Cong., 1st Sess. § 2 (1817). Despite the paucity of judicial precedent construing this clause, the legislative precedent portrays its scope as quite broad.

To achieve reciprocity in concealed-carry rights across state lines, the Full Faith and Credit Clause would seem a natural choice. It avoids reliance on the Commerce Clause without making it necessary to ad- dress difficult issues regarding another possible ground for the bill, namely Congress’s power under Section 5 of the Fourteenth Amendment to enforce Section 1. 


Rephrasing the bill in this way could also correct three unrelated statu- tory problems. First, the bill as written enables permitholders to carry handguns, without specifying whether the handgun involved is within the scope of the original state law or permit. A simple reciprocity statute should confer no broader right than the underlying permit. Second, the current language of H.R. 38 is ambiguous as to the effect of permits that states might issue to nonresidents. (The phrase “in the State in which the person resides” in the proposed 18 U.S.C. § 926D(a) might attach only to “is entitled to carry a concealed firearm,” or it might attach also to “valid license or permit * * * which permits the person to carry a concealed firearm,” thereby excluding permits for nonresi- dents.) Third, the protection in the current bill extends only to other states; its text does not discuss the District of Columbia or the territo- ries and possessions of the United States mentioned in the Full Faith and Credit Statute, 28 U.S.C. § 1738.

There is more in the letter, including a suggestion to protect state's from lawsuits, as well as redrafted bill language. In total, these seem like useful steps to avoid constitutional pitfalls, while preserving the bill's intent to allow concealed carry to work more effectively, and efficiently, for gun owners.