No, the Supreme Court’s Marriage Ruling Doesn’t Mean All States Must Recognize Each Others’ Gun Carry Permits

The logic may lean that way, but we can’t be sure the Court values the Second Amendment’s application that strongly.

Brian Doherty –

Some gotcha logic at the expense of gay marriage fans who are presumed to not be Second Amendment lovers is circulating around the gun-rights Internet, claiming that the Supreme Court’s decision last week in Obergefell v. Hodges means that every state must honor the weapons-carry licenses of other states.

Let’s sum up that logic from the mouths of believers before assessing its validity.

Awr Hawkins at Breitbart avers that:

Because a concealed carry license is the vehicle through which many 2nd Amendment rights are exercised in states other than your own, there seems no way to avoid the implication that a state ought to have to recognize a concealed carry license from another state, just as states are now required to recognize same sex marriage licenses from other states.

Alan Gottlieb, whose Second Amendment Foundation has won many extensions of gun possession rights in both lower courts and the Supreme, also sees victory inherent in the gay marriage ruling:

“To paraphrase what Associate Justice Anthony Kennedy said about same-sex marriage,” noted Citizens Committee for the Right to Keep and Bear Arms Chairman Alan Gottlieb in a statement Friday, “no right is more profound than the right of self-preservation, and under the Constitution, all citizens should be able to exercise the right of self-defense anywhere in the country. It disparages their ability to do so, and diminishes their personhood to deny the right to bear arms they have in their home states when they are visiting other states.”

While every state has a framework to issue concealed carry permits, they are under no obligation to recognize those issued by other states and territories. For example, Illinois and Hawaii only recognize permits issued by their respective jurisdictions. In contrast, Ohio recognizes licenses from any other state regardless of whether Ohio has entered into a reciprocity agreement.

Here’s a good breakdown chart (from the unlikely source of Daily Kos) on how various states deal with both carry rights for their own citizens and other Americans who happen to wander through strapped. Wikipedia also has a decent discussion of the national state of reciprocity for weapons carrying.

Undoubtedly, many Americans suffer grave  injustice because of lack of carry reciprocity. Just ask Shaneen Allen who faced many years in jail for bringing her Pennsylvania-legal  gun into New Jersey and being honest enough to tell a cop so. (Her story has a semi-happy ending.)

But Obergefell is not a tool to right such injustices. Certainly not by the logic of our legal system. A mere logical implication of a Supreme Court decision on a matter not explicitly at issue in the case they decided does not suddenly become the law of the land.

Given the current state of Supreme Court jurisprudence on the Second Amendment, even the logical implication part doesn’t really work to get the pro-carry result, at least not in the Court’s mind.

Despite Heller and McDonald, the Supreme Court currently doesn’t even seem to be sure that we have any Second Amendment right to carry or get a carry permit at all, much less that issuing one and honoring them across state lines is a core right requiring equal 14th Amendment protection to all citizens.

The right acknowledged in the Second Amendment ought to apply to carrying weapons outside the home, where self-defense is still a right and still a vital need. At least one line of the Heller decison implies that to some degree the court might agree.

Scalia wrote in his majority opinion that “The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings…” That implies there must be some non-sensitive places in which we cannot be forbidden to carry.

But in the years since Heller the Court has not chosen to take up any case to indicate whether it believes the Second Amendment affects regulations on carrying weapons outside the home. Last year they had a great chance to do so with Drake v. Jerejian, which challenged New Jersey’s onerously restrictive carry permit laws. But despite a circuit split over how Heller applies to carry rights, they ultimately declined the case.

For more on the importance of extending the Second Amendment outside the home, see plaintiff Tom Palmer who won a victory in such a case over D.C.’s carry laws explain that he knows public carry has made his life safer.

Josh Blackman, a legal scholar friendly to the Second Amendment, isn’t even sure a federal law requiring carry reciprocity would be constitutional. Such laws have been proposed for a long while now, and still are being proposed. Portions of Blackman’s logic that the feds would be illegitimately steamrollering state’s prerogatives with such a law (pre-Obergefell):

there would be “congruence and proportionality” issues, as this law [he is discussing  Senator Cornyn’s Concealed Carry Reciprocity Act] imposes significant federalism costs by forcing states to recognize permits from other states that have much more lax licensing schemes. To get here, the Court would have to hold not only that the 2nd Amendment applies outside the home, but “may issue” regimes are unconstitutional. It is not enough that a state allows the right to be exercised (all 50 states have some permitting regime), but Congress would dictate how the state should offer it…..

The second possible answer, is the commerce clause coupled with the necessary and proper clause. The text of the bill does not explicitly cite interstate commerce as a basis for the bill, but it mentions guns traveling in interstate commerce…..putting aside the chutzpah of conservatives citing the commerce clause (alliteration!), the argument is weak because Congress is not regulating the guns, but the licensing regime. Commerce alone will not carry the day, but Congress will have to rely on what Justice Scalia called in Printz “the last, best hope of those who defend ultra vires congressional action”–the Necessary and Proper Clause….While it may indeed be necessary….for Congress to require that states recognize out-of-state permits to promote interstate commerce, is it “proper”?….Specifically, would this law require the exercise of a “great substantive and independent power” that would need to be “implied as incidental to” or “used as a means of executing” the Commerce Power? In other words, would forcing a state to recognize out-of-state gun licenses, amount to such a great imposition on state sovereignty, to no longer be proper?

Well, I’d like to at least see federal lawmakers give it a try and see how it all pans out.

Given the Supreme Court’s manifest unwillingess to even decide how or whether carry permits implicate the Second Amendment right they recognized in  Heller, it is grossly premature to say that Obergefell implies carry reciprocity as a matter of law right now, or that the Court ever will agree that it does.

The hard work of convincing state legislators to sign on to more reciprocity agreements, or for some states to lower their carry requirements, or getting a federal reciprocity law passed, or getting a case all the way to and through the Supreme Court regarding public carry rights, is still ahead. Obergefell does not give Second Amendment devotees some instant shortcut to that result.

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