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 Tuesday, July 28, 2009

Defeat of Thune amendment runs afoul of Constitution's full faith and credit clause
9:07 AM ET

Alan Gura [Partner, Gura & Possessky, PLLC]: "Gun rights opponents at last have cause to rejoice. Only 58 members of a lop-sided Democratic-controlled Senate approved of a provision mandating that states give full faith and credit to each other's gun-carry permits. The laws of forty-eight states, at least in theory, allow their peaceable citizenry to carry guns in public for self-defense. Forty of these states either require no license to do so, or issue such licenses as a matter of routine upon meeting basic qualifications. Even in the small minority of hold-out states, gun carry licenses are often available depending on one's residence. Senator Boxer's Marin County neighbors cannot carry a gun to defend themselves, but her constituents in Fresno and Bakersfield suffer no such disability if they dot their i's and cross their t's.

However, when permit holders travel across state lines, the validity of their permits — and thus their ability to exercise their right of self-defense — depends upon a crazy-quilt patchwork of ever shifting reciprocity agreements hammered out among the states. This is precisely the sort of problem the Constitution empowers Congress to solve, giving it the authority to have states extend "full faith and credit" to each others' public acts. Ensuring that Americans do not trip on internal borders is a basic feature of our national existence. But gun rights opponents, unsafely esconced in their shrinking gun-free fortresses, adamantly oppose mingling with those who exercise their Second Amendment rights — nevermind the fact that gun-carry permitees constitute an incredibly law-abiding population, and that the liberalization of gun carry laws has correlated for the most part with substantial declines in violent crime.

Alas, this celebration will last no longer than the denial about the meaning of the Supreme Court's decision in District of Columbia v. Heller [PDF file]. Heller confirmed that most licensing regimes regulating the carrying of handguns are not unconstitutional — but it also signaled the end of hyper-restrictive laws in the minority of holdout states which print handgun carry licenses on paper made of unobtainium. Rejecting the argument that "keep and bear arms" was a unitary concept referring only to a right to possess weapons in the context of military duty, the Supreme Court held that to "bear arms," as used in the Second Amendment, is to "wear, bear, or carry...upon the person or in the clothing or in a pocket, for the purpose...of being armed and ready for offensive or defensive action in a case of conflict with another person." Twice more, the Court referred to the right to "keep and carry arms." The Court then helpfully noted several exceptions that prove the rule. Explaining that this right is "not unlimited," in that there is no right to "carry any weapon whatsoever in any manner whatsoever and for whatever purpose," the Court confirmed that there is a right to carry at least some weapons, in some manner, for some purpose. The Supreme Court then listed as "presumptively lawful" "laws forbidding the carrying of firearms in sensitive places," confirming both that such "presumptions" may be overcome in appropriate circumstances, and that carrying restrictions are not presumptively lawful in non-sensitive places.

The Supreme Court also offered that the concealed carrying of weapons may be prohibited, and for this proposition it had ample precedential support. A close reading of Heller, and of the cases upon which it relied, reveal that concealed carry bans are lawful only where open carrying is permitted, lest the right to carry a gun be completely abrogated. In an earlier time, where the carrying of guns was commonplace, concealment of one's firearm was viewed as unmanly at best, most probably sneaky. Hence the constitutionality of mandating that guns be carried openly. But today, social norms often prefer that guns be concealed. Post-Heller, hold-out states may still maintain concealed carry bans should they allow open carrying. This is a choice they are unlikely to make, but one they will be forced to confront."

Alan Gura was lead counsel for the respondent in District of Columbia v. Heller. He is currently spearheading a challenge to the constitutionality of policies that deny law-abiding individuals gun carry permits in California. Sykes v. McGinness, U.S. Dist. Court, Eastern Dist. of Calif. No. 09-01235.


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