The Constitution, not Congress

By effectively replacing the state’s legislative authority with the authority of every other permit-granting state in the Union, the Act eliminates a state’s sovereign right to decide which nonresidents can carry concealed firearms within its border.  Moreover, the system described in the Act is open to a form of abuse that undermines a state’s power to regulate the activities of its own residents: the NRA’s website explains that residents of a state without permitting requirements “could obtain nonresident permits from other states to enjoy the benefits of [the National Right-to-Carry Reciprocity Act of 2011].”  The Act does little to stop residents of one state — with strict permitting restrictions — from obtaining the very same “nonresident permits” elsewhere, thereby circumventing their home-state’s legislation.

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To prevent such a usurpation of states’ rights, the Constitution limits Congressional power via the Tenth Amendment and reserves for states all “powers not delegated to the United States by the Constitution.”  Pro-gun groups have long relied on this language to curtail expansion of federal gun control regulations.  It is strange, therefore, to see these same groups now regard this very language as an obstacle rather than a safeguard.  Indeed, the Act’s supporters now look to other parts of the Constitution for the authority to overcome the Tenth Amendment and enact what is, in effect, a regime of federal states’ rights regulations. Specifically, the Act seeks legislative authority to overwrite state law from two sources: the Congressional power of enforcement and the Commerce Clause (the very provision whose over-breadth pro-gun groups decried in years past).

The Fourteenth Amendment gives Congress the power to enforce, “by appropriate legislation, the provisions of this article.”  However, this power is not unlimited. The Supreme Court held in City of Boerne v. Flores that Congress could not look to Clause 5 for the authority to enact legislation broader than already-recognized Constitutional protections.  With the National Right-to-Carry Reciprocity Act of 2011, Congress is attempting to do just that.  While the Act, as introduced in the House, proclaims the Second Amendment to protect an individual’s general right “to keep and bear arms, including for purposes of individual self-defense,” the Court in D.C. v. Heller and McDonald v. Chicago only recognized a Second Amendment right in limited circumstances.  According to Justice Alito, who wrote the majority opinion in McDonald, “the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense.”

The Commerce Clause, which gives Congress authority to regulate “Commerce . . . among the several States,” has historically been interpreted as a broad grant of Congressional power.  In recent years, however, the Court has signaled a willingness to curtail this power, particularly when the connection to interstate commerce is too tenuous or tangential.  In U.S. v. Lopez, which dealt with criminal gun regulations, the Court considered the Commerce Clause power “in the light of our dual system of government” and declined to expand it, fearing the creation of a federal “police power of the sort retained by the States.”  Indeed, to accept that concealed-carry gun permits so significantly affect interstate commerce so as to bring the matter within the ambit of federal regulatory authority would require, in the words of Lopez, the piling of “inference upon inference” and would run contrary to the very notion of a Congress with limited, enumerated powers.

Ultimately, the Act and pro-gun advocates’ support are both indicative of the same phenomenon: pro-gun groups and politicians are being forced to redefine themselves after years spent opposing federal regulations.  The Heller and McDonald decisions have rendered those positions (at least partly) unnecessary since the states are now the ones potentially encroaching on a recognized Constitutional right.  However, the Second Amendment is still too young and too narrowly defined to support sprawling legislation like the National Right-to-Carry Reciprocity Act.  There must be further progress in America’s courtrooms before pro-gun groups and politicians can credibly claim the Constitutional authority to usurp a state’s power to regulate its own affairs.  Until then, they must tread lightly, and keep in mind that the Constitution controls the states, not Congress.

Benjamin Margulis is the former head editor of Cardozo Law Review de novo.