2017-12-30 04:24:42 UTC
News Flash: The Constitution Applies to All 50 States
BY DAN ZIMMERMAN |DEC 29, 2017 |55 COMMENTS
The Constitution applies to all 50 states, even where guns are concerned
courtesy dianerehm.com and Getty
Here’s a novel concept: enumerated civil rights apply equally in every state
in the union. Can speech be more stringently regulated in Maryland than it
can in Montana? Do police have broader search and seizure latitude in
Arkansas than they do in Alaska? Why no, no they don’t. And that means that
. . . States have a constitutional duty to recognize gun rights nationwide.
In response to the House of Representatives passing the Concealed Carry
Reciprocity Act of 2017 (which would essentially require states to recognize
concealed carry permits issued by other states) this month, those who oppose
gun rights are invoking states’ rights — an argument conservatives favor in
other contexts. But a federalism argument cannot stand where Congress is
exercising authority that has been explicitly granted by the Constitution’s
The Fourteenth Amendment (along with the Thirteenth and Fifteenth) is one of
the Reconstruction Amendments, passed in the immediate wake of the Civil
War. It (was) intended to redesign American federalism by requiring the
states to respect basic rights of their citizens, including “the personal
rights guaranteed and secured by the first eight amendments to the
Isn’t the Second Amendment one of those first eight Amendments in the Bill
of Rights? Why yes, yet it is. But wait…aren’t gun rights somehow different?
The question then is: are gun rights protected by the Fourteenth Amendment?
During the debates on the Amendment, and the related Civil Rights Act of
1866 and Second Freedman’s Bureau Act, the right to keep and bear arms was
explicitly invoked frequently as one of the elementary civil rights and
rights of citizenship that Freedmen, who were regularly and violently
disarmed, were entitled to enjoy along with whites. The Supreme Court
recognized this and more in 2010, in the case of McDonald v. City of
Chicago. In that case, the Court unambiguously held that the Second
Amendment is a “fundamental right” that “is fully applicable to the States.”
Huh. A precedent like that could be downright inconvenient for the forces of
civilian disarmament if a national concealed carry reciprocity law ever
comes before the Supreme Court.
To be sure, there are other considerations that should be part of the
reciprocity discussion. For example, moving between and among the several
states is a fundamental right upon whose exercise the states may not place a
substantial burden. Nor can states discriminate against new residents by
treating them differently in matters of importance, like medical care and
welfare benefits. This has implications for American gun owners. If a state
may not chill the freedom of interstate travel by placing restrictive
conditions on certain benefits, it is reasonable to conclude that stripping
one’s carry rights in order to cross state lines would also be impermissible
under the Fourteenth Amendment.
So while we’re not constitutional law experts, national reciprocity would
seem to be on good legal footing should the bill that’s currently in the
Senate ever be signed into law, and challenged in the courts. Which you have
to expect it would be.
The question now is, what are the chances of a bill reaching President Trump’s
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