Right To Carry 7/30/2018

National Reciprocity: Civil Rights Legislation For Gun Owners

by Chris W. Cox Executive Director, NRA-ILA

Opponents of national reciprocity are desperate to derail this vital legislation at any cost, for they know it will be the ultimate undoing of the myth that more firearms in the hands of law-abiding Americans somehow increases crime. Unable to make a credible case against concealed carry as public policy, they have resorted to making “states’ rights” arguments that even one critic of national reciprocity has admitted they “don’t believe.” 

Principled conservatives, however, should not take the bait. Concealed-carry reciprocity is first and foremost about protecting the right to bear arms and to travel throughout the country without infringement from states or municipalities. One of the legitimate exercises of the federal government’s authority is to protect the constitutional rights of Americans. That is the sacred oath of every federal officer. Simply put, there is no “state right” to curtail liberties that are the birth right of all U.S. persons, and any state that does so should expect the U.S. government to intervene on behalf of law-abiding citizens. 

Meanwhile, national reciprocity would do nothing to curtail the authority that states have to regulate the behaviour of people who are carrying firearms. It simply means that states that make a lawful means of concealed carry available to their own residents cannot arbitrarily deny the same right to lawful concealed carriers from other states. 

The Supreme Court has held that Americans have a Second Amendment right to “possess and carry weapons in case of confrontation” independent of service in an organized militia. However much opponents of the Right to Carry might argue otherwise, that is a fact. 

This right has been recognized by federal courts of appeals as well. In a case that it is especially on point to the question of national reciprocity, the U.S. Court of Appeals for the D.C. Circuit recently invalidated a law that deprived D.C. residents of an accessible means of bearing arms for self-defence.  

When a district court ruled that D.C.’s comprehensive ban on carrying firearms violated the Second Amendment, D.C. feigned reform by creating a sham system for concealed-carry licenses that required applicants to show a “good” or “proper” reason for needing to carry a concealed handgun. This meant demonstrating a special need for self-protection distinguishable from the public at large.

Practically speaking, it meant that the vast majority of law-abiding people who simply wanted to carry a handgun for self-defence in ordinary circumstances were automatically disqualified. Nearly 80 percent of otherwise-eligible applicants for D.C. concealed-carry licenses were denied for lack of “good” or “proper” reason. Uncountable others were dissuaded from even attempting to apply for a license.

Licensed concealed carry, moreover, is the only option for ordinary people to lawfully carry a loaded, accessible firearm for self-defence outside of their home or business in D.C., so in effect the ban on carry already remained under D.C.’s discretionary licensing system.

That ended with the combined cases of Wrenn v. D.C. and Grace v. D.C. These cases presented the appellate court with the questions of whether the Second Amendment’s right to “bear” arms for self-defense extends beyond the home and if so, whether District officials could nevertheless deny that right to all but a select few. The court’s answer to those questions was a resounding “yes” and “no,” respectively. 

The D.C. Circuit analogized the District’s current concealed-carry licensing regime to the ban on keeping handguns at issue in District of Columbia v. Heller. The issue, the court stated, is not whether a few select people could exercise the right but whether it was available to responsible, law-abiding people in ordinary circumstances. Because the court found that D.C.’s “good” or “proper” reason requirement was effectively a ban on bearing arms by people entitled to Second Amendment protection, it declared the requirement invalid and barred its enforcement.

Rather than risk an adverse constitutional ruling at the U.S. Supreme Court, the District now issues concealed-carry licenses to all eligible applicants who complete D.C.’s training and licensing procedures.

Eight states, however, still have legal regimes for “bearing” arms that mimic the one found unconstitutional in D.C. That is, the only way to lawfully carry for self-defence is a concealed-carry license, but licensing officials routinely deny applications for lack of “good cause,” even where the applicant satisfies all objective licensing criteria. And some of those states refuse to recognize non-resident permits and/or ban non-residents from even applying for a concealed-carry license, meaning there’s no lawful way for travellers to carry in the state at all. 

Make no mistake, it is this distinction—and not this or that minor eligibility requirement—that motivates opponents of national reciprocity. While they claim to be concerned about “dangerous” people from other jurisdictions carrying in their states, what they really oppose is the idea that “ordinary” people have a Right to Carry, period. 

The fact is that no state has an interest in licensing or otherwise recognizing the right of dangerous persons to carry firearms in public. And they all have some legal mechanism to prevent this, whether by licensing procedures or categorical prohibitions on firearm possession by presumptively dangerous persons, such as convicted felons or the dangerously unstable.

These procedures work. Licensed concealed carriers are one of the most law-abiding populations in America. As increasingly expansive concealed-carry regimes have been adopted across the U.S. over the last 30 years, the nationwide violent crime rate has plummeted.

Opponents of concealed carry are left to argue that crime rates would have fallen even faster in states with liberal carry laws. But they have yet to invent a plausible theory of how the carrying of firearms by law-abiding persons somehow contributes to violent crime. 

There are well-funded efforts dedicated to documenting every instance of a firearm-related fatality associated with a concealed-carry licensee. Yet even when they pad the numbers by including incidents that don’t involve handguns, didn’t occur in public, or involved someone else using the licensee’s gun, they can do no more than make the point that America’s nearly 16 million concealed-carry licensees are overwhelmingly responsible and law-abiding. 

And then there’s the undeniable fact that violent criminals are not waiting for Congress to pass national concealed-carry reciprocity legislation to carry firearms whenever or wherever they want or for whatever violent purpose. Maryland is one of the strictest states in the nation when it comes to carrying firearms in public or issuing concealed-carry licenses, and Baltimore—its largest city—remains mired in historically high homicide rates. Violent criminals are not the beneficiaries of concealed-carry reciprocity. They are an impetus behind it.

But if any state can claim to have come up with the magic bullet for reducing violent crime, it would be Maine or Vermont, which according to FBI figures have the lowest rates of violent and property crime in the nation. 

Vermont has recognized a constitutional Right to Carry a concealed handgun without a license since the early 1900s. Maine recently adopted the same rule, after years of making concealed-carry licenses available as a matter of right to those who meet basic eligibility requirements.

And what about the discretionary issue states? Do they have especially acute insights into what sort of background factors contribute to a material risk that an applicant might later misuse a lawfully carried handgun? 

The answer is no. Their idea of a “safe” concealed-carry regime is not one that scientifically determines which persons have the highest risk of violent or irresponsible behaviour but simply one that results in the lowest number of concealed-carry licenses possible. 

And yet even these states have not chosen to eliminate concealed carry entirely, for it remains a potent status symbol, all the more so when it is so parsimoniously authorized. Concealed-carry licensees in New York City, for example, include actors, hedge fund managers and media celebrities. The U.S. Attorney’s office in Manhattan also claims they can be had for a bribe, no background check necessary. In Los Angeles, they’re theoretically available to those whose lives are imminently threatened, but in actuality go mostly to those who have worked in the judiciary or on the enforcement side of the criminal justice system. Favoritism, corruption and cronyism, however, have no obvious public safety benefits. 

These things do, however, evince arbitrary and discriminatory application of the law. This is not acceptable in any context in which fundamental rights are at stake.

Unfortunately, when it comes to the right to keep and bear arms, a handful of states continue to defy the Constitution and persecute fellow Americans for behaviour the Constitution specifically protects. That is not only unwise, it is patently un-American.

Congress has the power to fix this, and the legislation to do so is in its hands. America needs national reciprocity, and we need it now.

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