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 Fourteenth Amendment.
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 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 Constitution.”
Its drafters, seeing that Freedmen continued to face violent oppression in the post-Civil War South, sought to add a new check to the American federal system by enabling the federal government to curb state abuses. As such, they included in all three Reconstruction Amendments clauses giving Congress the power to enforce the Amendments “through appropriate legislation.” These enforcement clauses were explicitly and implicitly the source of authority for Congress to pass the various Civil Rights Acts, including the Voting Rights Act, for over 150 years. The Supreme Court has repeatedly upheld these Acts.
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.”
The particular source of the right asserted was the Due Process Clause of the Fourteenth Amendment — with which Justice Clarence Thomas famously and eloquently took issue in his concurrence, arguing that the true source of the right was the Fourteenth Amendment’s Privileges and Immunities Clause.
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.
The Fourteenth Amendment prohibits states from infringing certain civil rights. Among those rights are those secured by the Second Amendment. While the Supreme Court has not explicitly weighed in on the constitutionality of bans on firearm carriage, Congress may exercise its constitutional judgment to draw its own conclusion. It follows that Congress, to the extent that it believes that the Second Amendment protects concealed firearm carriage outside the home, has constitutional authority to enforce the Fourteenth Amendment’s prohibition on state violations of that right through legislation like the Concealed Carry Reciprocity Act of 2017.
George A. Mocsary is an assistant professor of law at the Southern Illinois University School of Law and a coauthor of Firearms Law and the Second Amendment: Regulation, Rights, and Policy (2d. ed, Wolters Kluwer 2017), a treatise and the first law school textbook on its topic. Rafael A. Mangual is a public policy professional working in New York City, and a graduate of DePaul University's school of law.