Thursday, July 2, 2015

On the New National Reciprocity Arguments …

Current Supreme Court of the United States
(source: Wikipedia)
There's been some conjecture around the gunnie Interwebs about the SCOTUS decision in Obergefell v. Hodges paving the way to getting nationwide, 50-state-plus-DC recognition of concealed carry licenses. Bob Owens talks about it here, Miguel here, and Massad Ayoob himself polls his readers about it here.

The arguments make sense. You could take the verbiage in the majority opinion and replace any text referring to "marriage license" with equivalent text for "concealed carry license", and it would read the same. Case in point (from Bob Owens' article):

(b) The Fourteenth Amendment requires a State to license a marriage between two people of the same sex. […]
(1) The fundamental liberties protected by the Fourteenth Amendment's Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs.
It's no mental stretch to change that text to refer to carrying a defensive firearm in all States. In fact, it's trivially easy to make that edit.

However, you can virtually guarantee the usual suspects among the States won't see it that way, and very likely neither will the courts. Getting a national reciprocity via the Fourteenth Amendment ruling is still going to be an uphill battle, if it's ever allowed to happen. The Supreme Court receives hundreds or thousands of petitions every year, and has every authority to refuse to hear a particular case, and they're not required to give any reason for such a refusal.

Current reciprocity on an Oregon resident concealed
handgun license. Blue states are fine, red are not.
(source: USA Carry)

In short, all they have to do to maintain the patchwork of carry and reciprocity laws is … nothing.

And when it comes to carry and reciprocity, they've been doing just that for a very long time. It's patently ridiculous to assume — given the legal talents of attorney Alan Gura, the legal teams at the Second Amendment Foundation and the NRA, plus all the various state-level groups — that this avenue hasn't been considered or that petitions haven't been written or submitted to SCOTUS.

Of course they have! But the Court has not accepted any cases. I don't mean to be pessimistic, but I don't believe that will change any time soon.

I don't mean to be even more pessimistic, but if the Court does decide to hear a case pushing carry reciprocity under the Fourteenth Amendment, I believe they will decide the "public safety" concern over firearms carried by private citizens in public spaces is enough to merit upholding the patchwork. "Intermediate scrutiny" (which is also a relatively recent fabrication of the Court), and all that.

It won't be the right decision, but it will be "official". It will be "settled law". Justice Scalia's dissent will become the stuff of legend, but his voice will be in the minority and thus will have no bearing.

And the Supreme Court will have finally affirmed its complete irrelevance and illegitimacy by creating a "right" that isn't addressed anywhere in the Constitution — which under the Tenth Amendment means it must be "reserved to the States respectively, or to the people" — and then turning around and trampling an enumerated Right that is directly protected by that same Constitution when a violation of the enumerated Right is challenged using the same arguments.

Which is why I believe national carry reciprocity must be pushed legislatively. If the bill dies in Congress, we've lost nothing, but we've made the anti-rights crowd expend energy fighting it, and we've put Congress-critters on record supporting or opposing our fundamental rights. We can always try again next year.

If we take a chance before the Supreme Court and lose, we'll have lost for at least our lifetimes.

And that's my two cents on the matter. Please feel free to weigh in in the comments; I'd like to hear your opinions, too.

Have a happy Independence Day! And stay safe.

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