National Concealed Carry Snake Oil Law Will Fail

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“The right of self-defense doesn’t stop at the end of your driveway. That’s why I have a concealed carry permit and why tens of millions of Americans do too. That permit should be valid in all 50 states. A driver’s license works in every state, so it’s common sense that a concealed carry permit should work in every state. If we can do that for driving – which is a privilege, not a right – then surely we can do that for concealed carry, which is a right, not a privilege.” President-Elect Donald J. Trump’s campaign position on the Second Amendment?

It is highly unlikely that President-Elect Trump wrote this. We all know how he talks and this isn’t how.

But until history proves otherwise, we can assume that Mr. Trump is sincere in this desire for a national concealed carry law which requires every state to recognize concealed carry permits from other states.

There is a long way between desire and obtaining what one desires.

In no particular order, there are a number of obstacles. The first of which is getting a national concealed carry reciprocity bill passed by Congress and signed into law.

national concealed carry snake oil.
National concealed carry snake oil.

It is relatively easy to block enforcement of existing Federal gun laws. The House of Representatives can simply not authorize the executive branch to enforce the laws. Most people don’t realize that a President has very little power under the Constitution. The President cannot even turn on a lamp in his White House bedroom unless Congress has first authorized funds for the White House electric bill to be paid.

And if the Senate were to add funding to enforce the Federal gun laws back into the budget bills and the House of Representatives were to cave then the President has the Constitutional authority to veto the budget bills and send them back to the Congress for a do-over and with instructions to defund the Federal gun laws and enforcement agencies.

On the other hand, a new gun bill will require sixty votes in the Senate in order to pass the Congress. When asking for donations, the so called gun-rights groups fail to mention that the votes for this bill to pass simply are not there.

There are not the sixty votes in the Senate required to overcome a filibuster. It is highly doubtful that there are even a majority of Senators who would vote for the bill.

Another obstacle, just as formidable, is that Congress does not have the Constitutional authority to enact a national concealed carry reciprocity law.

Since 1937, the US Supreme Court has taken a very expansive view of the Commerce Clause of the US Constitution but even that expansive view has limits. A decade or so ago the snake oil salesmen claimed it is the “full faith and credit” clause of the US Constitution which requires other states to recognize the concealed carry permits issued from other states. Today, the Commerce Clause is the cart being used to peddle the concealed carry snake oil.

The first legal obstacle to overcome is that the bill has legal language justifying the authority of Congress to enact the legislation under the Congress Clause. For a concealed carry reciprocity bill, the bill can’t simply say that the authority is derived from the Commerce Clause just because the firearm traveled interstate or that firearms affect interstate commerce.

I read the bill “preferred” by the NRA and the GOA gun groups. The bill does not have the legal language the courts require to withstand a legal challenge even if the bill were “regulating” an economic area in which the courts have upheld laws in the past under the Commerce Clause.

Another obstacle is that concealed carry is not a right under the Second Amendment or a right under Federal common law. Since June of 2008 we have had three US Supreme Court cases which have reaffirmed that concealed carry is not a right in accordance with a US Supreme Court decision from 1897 which said that prohibitions on concealed carry do not infringe on the Second Amendment.

There is a US Supreme Court decision which discusses the limitations on the authority of the Congress to legislate under the Commerce Clause and why firearms regulations are different from typical commerce clause regulations. I highly recommend that you give it a read. It is United States v. Morrison, 529 US 598 (Supreme Court 2000) beginning at 608.

Mr. Trump is not a lawyer and does not pretend to be a legal expert in any area of the law. And yet one can’t throw a paper cup in the Congress without it hitting a lawyer. Lawyers are professional liars. Lawyers who are also politicians are the worst liars of all.

Any congressman who tells you that Congress has the authority to enact a national concealed carry reciprocity bill is either lying to you, or is incompetent, or is one who would remove the last remaining limits on Federal power.

Which makes him evil as well.