Thursday, December 22, 2016

Crowd Sourcing a Law Review Article

A staffer for a member of Congress requested an analysis of Congressional authority to pass a national concealed carry reciprocity law.  I'm working on it, but my readers are very smart people, so I thought I would ask for your suggestions on case law.

McDonald v. Chicago (2010) held that the Due Process clause of the 14th Amendment extended the Second Amendment to the states and their subsidiary governments (cities and counties).  Section 5 authorizes Congress "to enforce, by appropriate legislation, the provisions of this article."  The Enforcement Act of 1870 (or first Ku Klux Klan Act) is an example of such.

Any other examples of Congressional legislation of enforcement you can think of?

Interstate commerce: The Supreme Court has repeatedly struck down local laws that it argues discourage interstate travel, even when it is quite indirect such as Shapiro v. Thompson (1969)(state law requiring minimum residence period to collect welfare), and even when involving only local laws, such as Boynton v. Virginia (1960)("whites only" law in bus terminal restaurant).  The Court has also recognized Congressional to enforce anti-discrimination laws against private businesses such as Heart of Atlanta Motel Inc. v. United States (1964) based on effects on interstate commerce.  Yes, I am trying to use progressive case law to hoist them by their own petard.

Tenth Amendment/states' right challenges: The Tenth Amendment prohibits the national government from mandating state and local officials from performing its functions in Printz v. U.S. (1997).  This does not prohibit the national government from pre-empting state laws, such as Roe v. Wade (1973)(abortion), Lawrence v. Texas (2003).(sodomy laws) and Obergefell v. Hodges (2015)(same-sexmarriage prohibitions).  And again, I am trying to use progressive case law to hoist them by their own petard.  The Firearms Owners Protection Act of 1986 includes a safe transit provision that pre-empts state gun possession laws when crossing fascist states.  I can find no state challenges to its constitutionality, and certainly no successful challenges.  The parallel to concealed carry reciprocity is very strong.

One area that I need some help on is state recognition of driver's licenses.  I suspect that this is based not on the Constitution but voluntary agreement between the states.  Can you find why the states agree to this?

2 comments:

rfb said...

Clayton,

Rich Grassi recently wrote a cautionary note regarding nation reciprocity: "Likewise there's an ill-advised move toward 'national CCW reciprocity' at the federal level. I know the Constitutional reason for that but I also recall Sen. Dianne Feinstein jumping on a previous version a few years back – by an amendment that would effectively make all concealed carry to rules similar to the 'arbitrary denial' system in use in California. (H/t to Stephen Wenger.) Consider drivers' privilege: it's a matter of interstate compact over federal mandate.

I can already hear the howls of protest that a federal power grab over concealed carry wouldn't happen with the current Congress. We have to consider the acquisition of legislative power by the Party of Infringement – again, credit to Stephen Wenger for the appropriate characterization of the party of the Left. We'd be allowing the camel's nose under the tent of States' rights. That's not a good plan."

http://www.thetacticalwire.com/features/231376

rfb said...

Drivers licenses are accomplished by something called the "Interstate Compact", and not by the full faith and credit clause.

Also, you mention "The Firearms Owners Protection Act of 1986 includes a safe transit provision that pre-empts state gun possession laws when crossing fascist states. I can find no state challenges to its constitutionality, and certainly no successful challenges."

You are right that there has been no challenge to it, but it has been problematic in the communist North East states (NJ, et al).

They approach it as a potential after-the-fact defense. You more than likely will be arrested and booked, and pay through the nose in legal fees. You will probably not be convicted because of FOPA. In other words you may beat the rap but in those states you will not beat the ride.