HR 822 - National Reciprocity bill

[johnharris]

National Reciprocity

HR822 is one form of what has been referred to as a national reciprocity bill. Its purpose would be to force a state to honor a handgun permit if that state issues permits to its citizens or in the case of three states, does not even require permits. It has no application in the state or states that do not issue permits. The bill is moving in the House with momentum.

This sounds good to some but does it fall under the admonition of be careful what you wish for?

Here is the text of the legislation:

H. R. 822

To amend title 18, United States Code, to provide a national standard in accordance with which nonresidents of a State may carry concealed firearms in the State.

IN THE HOUSE OF REPRESENTATIVES

February 18, 2011
Mr. STEARNS (for himself and Mr. SHULER) introduced the following bill; which was referred to the Committee on the Judiciary

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A BILL
To amend title 18, United States Code, to provide a national standard in accordance with which nonresidents of a State may carry concealed firearms in the State.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `National Right-to-Carry Reciprocity Act of 2011'.

SEC. 2. FINDINGS.

The Congress finds the following:

(1) The Second Amendment to the Constitution of the United States protects the fundamental right of an individual to keep and bear arms, including for purposes of individual self-defense.

(2) The Supreme Court of the United States has recognized this right in the case of District of Columbia v. Heller, and in the case of McDonald v. City of Chicago, has recognized that the right is protected against State infringement by the Fourteenth Amendment to the Constitution of the United States.

(3) The Congress has the power to pass legislation to protect against infringement of all rights protected under the Fourteenth Amendment to the Constitution of the United States.

(4) The right to bear arms includes the right to carry arms for self-defense and the defense of others.

(5) The Congress has enacted legislation of national scope authorizing the carrying of concealed firearms by qualified active and retired law enforcement officers.

(6) Forty-eight States provide by statute for the issuance to individuals of permits to carry concealed firearms, or allow the carrying of concealed firearms for lawful purposes without the need for a permit.

(7) The overwhelming majority of individuals who exercise the right to carry firearms in their own States and other States have proven to be law-abiding, and such carrying has been demonstrated to provide crime prevention or crime resistance benefits for the licensees and for others.

(8) The Congress finds that preventing the lawful carrying of firearms by individuals who are traveling outside their home State interferes with the constitutional right of interstate travel, and harms interstate commerce.

(9) Among the purposes of this Act is the protection of the rights, privileges, and immunities guaranteed to a citizen of the United States by the Fourteenth Amendment to the Constitution of the United States.

(10) The Congress, therefore, should provide for national recognition, in States that issue to their own citizens licenses or permits to carry concealed handguns, of other State permits or licenses to carry concealed handguns.

SEC. 3. RECIPROCITY FOR THE CARRYING OF CERTAIN CONCEALED FIREARMS.

(a) In General- Chapter 44 of title 18, United States Code, is amended by inserting after section 926C the following:

`Sec. 926D. Reciprocity for the carrying of certain concealed firearms

`(a) Notwithstanding any provision of the law of any State or political subdivision thereof, related to the carrying or transportation of firearms, a person who is not prohibited by Federal law from possessing, transporting, shipping, or receiving a firearm, and who is carrying a government-issued photographic identification document and a valid license or permit which is issued pursuant to the law of a State and which permits the person to carry a concealed firearm, may carry a concealed handgun (other than a machinegun or destructive device) that has been shipped or transported in interstate or foreign commerce, in any State, other than the State of residence of the person, that--

`(1) has a statute that allows residents of the State to obtain licenses or permits to carry concealed firearms; or

`(2) does not prohibit the carrying of concealed firearms by residents of the State for lawful purposes.

`(b) A person carrying a concealed handgun under this section shall be permitted to carry a handgun subject to the same conditions or limitations that apply to residents of the State who have permits issued by the State or are otherwise lawfully allowed to do so by the State.

`(c) In a State that allows the issuing authority for licenses or permits to carry concealed firearms to impose restrictions on the carrying of firearms by individual holders of such licenses or permits, a firearm shall be carried according to the same terms authorized by an unrestricted license or permit issued to a resident of the State.

`(d) Nothing in this section shall be construed to preempt any provision of State law with respect to the issuance of licenses or permits to carry concealed firearms.'.

(b) Clerical Amendment- The table of sections for such chapter is amended by inserting after the item relating to section 926C the following:

`926D. Reciprocity for the carrying of certain concealed firearms.'.

(c) Severability- Notwithstanding any other provision of this Act, if any provision of this section, or any amendment made by this section, or the application of such provision or amendment to any person or circumstance is held to be unconstitutional, this section and amendments made by this section and the application of such provision or amendment to other persons or circumstances shall not be affected thereby.

(d) Effective Date- The amendments made by this section shall take effect 90 days after the date of the enactment of this Act.

Now, also consider the statement of constitutional authority related to this bill:

[Congressional Record Volume 157, Number 27 (Friday, February 18, 2011)]
[House]
[Page H1252]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]

By Mr. STEARNS:
H.R. 822.
Congress has the power to enact this legislation pursuant to the following:
Article I, Section 8, Clause 3, Commerce Clause

Note, that the statement of authority is identified as the Commerce Clause, not the 2nd Amendment.

Now, let's look at some of the provisions of this bill.

First, we note that the preamble to the bill in Section 2.1 declares that the right to keep and bear arms is a fundamental constitutionally protected (not created) right. However, the bill does not declare that right to exist in all states - only in those states which already allow it in some degree. See, proposed Sec. 926D(a). If it is truly a constitutionally protected right and Congress is acting to remove any infringements (Section 2.3), then why carve out the states in which the highest level of infringements may exist?

Second, we note that the bill would only addresses handguns that are carried concealed. However, nothing in the Second Amendment limits the "arms" that it addresses to handguns nor is there any qualifier in the Second Amendment to concealed weapons. So, if the bill is based on the rights under the Second Amendment, what constitutional argument is there for limiting its application to conealed handguns? What about open carry? What about those states, as Tennessee has started to trend, that will allow carry or transportation of loaded longarms? Are these not also protected rights under the 2nd Amendment to the authors and sponsors of the legislation?

Third, note that the bill contains the typical "politically correct" qualifier excluding machine guns and destructive devices. However, there are certainly machine guns and destructive devices which are capable of being carried and concealed. Indeed, machine guns and other weapons suitable for military use are historically and legally the types of weapons that the Second Amendment was originally written to protect - not the hunting rifle or pocket pistol but those arms suitable for military or militia use. If those are truly the arms of the Second Amendment, then why does this legislation completely exclude them and appease only the politically correct concealed handgun?

These are just a few of the concerns with this legislation and its lack of consistent application under the Second Amendment. However, set that aside and consider the issue of the 10th Amendment and the original scope of the Commerce Clause. The preamble asserts that this legislation is appropriate under the 14th Amendment to keep States from imposing infringements on the rights of citizens that are recognized under the 2nd Amendment? Really? If so, how do the supporters explain the complete lack of consistence with the issue of which arms are covered and the "hands off" approach to those states which completely infringe 2nd Amendment rights (even in the face of the 14th Amendment).

Now, look at the 10th Amendment issue. Nothing in the US Constitution expressly authorized the union government to regulate intrastate activity much less intrastate criminal activity. This legislation quite likely violates the 10th Amendment and strained creative readings of the 14th Amendment does not cure that. Nothing in the Constitution, as written, contemplated that the Commerce Clause would be a basis on which to regulate collateral conduct of individuals traveling between states. Under the natural sequence of "precedent", where does this type of regulation lead to those who are federalists and ultimately desire that all authority be vested in the union government thus obliterating the 10th Amendment and the fact that the States are supreme in the creation and delegation of power to the union government and by the very Constitution itself they can amend it, alter its powers and dissolve it should they elect to do so.

The intended result of this bill - the capacity to protect your life and those of others who are dear to you in any state - may be something that you want so much that you are willing to disregard Constitutional principles and original limits to achieve it. However, it does not take much effort at all to take such precedent and apply it in other areas to realize that the bill provides great danger to the Constitutional form of government and the protections of the 10th Amendment. Are small and perceived victories so urgent and great that we should blindly abdicate the separations of sovereign powers that the states built into the Constitution when they choose to give birth to a union Government that has now grown to such a behemoth that it will and perhaps already has lethally cannibalised its Creators?

You may advocate for the further erosion of the 10th Amendment to achieve a perceived good but is it really wise in the long run?

[ProguninTN]

I applaud the intent, but I agree that it is flawed. I also immediately noticed the lack of open carry and the citation of the commerce clause. Is it just me, or is Congress trying to use the commerce clause as a justification for anything as of late ?

On another, note, John do you think any good bill is possible ? I envision that if anything is passed (even a corrected bill to address open carry concerns, etc.), gun-unfriendly states will respond by legislating as many restrictions as possible, leading to lots of court challenges. Not unlike, what happened post Heller and McDonald.

[johnharris]

As much as I like the intent of such legislation, I find it generally poorly reasoned from a constitutional perspective. Keep in mind, I value the 10th Amendment as a legitimate constitutional provision and find little favor in the 14th. I generally think that the 14th, as applied, can be used to destroy the 10th.

If and when this happens, I would prefer it be by the agreement of sovereign states for that is reciprocity. When it comes down from the union government, it is not reciprocity (a voluntary agreement) but merely yet another federal mandate that exceeds the enumerated powers of the union government.

[David Lewis]

Is it just me, or is Congress trying to use the commerce clause as a justification for anything as of late ?

The Congress has been misusing & misapplying the Commerce Clause to interfere in our lives for years...not just lately.

David

[Tim Nunan]

This was posted on an email list of current and former NRA-EVC's.
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Winchester (former Federal prosecutor) contacted NRA in regards to this proposed national CCW reciprocity bill, and this was the reply he received in regards to his concerns:

So here's the NRA view.....

-----Original Message-----
From: ILA-Contact [mailto:ILA-Contact@nrahq.org]
Sent: Wednesday, September 14, 2011 2:02 PM

Subject: RE: ILA Contact nramem

Dear Mr. Winchester,

Thank you for contacting NRA-ILA.

The bill is not perfect, but by no means is it a "do-nothing" bill. If
passed the bill would allow anyone who has a CCW from their state to carry
in any other state that issues CCW permits. With the recent addition of WI,
49 states now have laws on the books that allow for CCW permits. Granted,
some states are "may issue" and do not issue many permits, but it only
requires them to have a CCW permit available for the law to apply.

The bill does require that those who carry abide by the laws and
restrictions of the state they are in. However, it specifically says they
are only subject to the restrictions that would apply to someone with an
unrestricted permit from that state. So, while there are restrictions, it
would only be for things like not being able to carry in a government
building or in a restaurant that serves alcohol. By and large, the
restrictions would not differ greatly from those imposed on a permit holder
in CO.

Again, thank you for your inquiry and please do not hesitate to share any of
your thoughts or concerns in the future.


Sincerely,
Kyle C
NRA-ILA Grassroots Division


-----Original Message-----

Sent: Wednesday, September 14, 2011 3:26 PM
To: ILA-Contact
Subject: ILA Contact nramem

Contact Information
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
First Name: JAMES
Last Name: WINCHESTER
State: CO


comments:
_________________________________
I've read the text of the bill and I fail to see how this bill does anything for carrying concealed unless all or almost all states allow a license, and those states have no restrictions on the right to carry. In other words, the bill seems like a do-nothing, feel good legislation.

[johnharris]

No matter how you cut it, the bill

- seeks yet an additional unwise expansion of the use of the commerce clause,
- it fails to give full interpretation and force to the 2nd Amendment and
- it disregards the 10th Amendment and the constitutional limits on the union government

[macville]

No matter how you cut it, the bill

- seeks yet an additional unwise expansion of the use of the commerce clause,
- it fails to give full interpretation and force to the 2nd Amendment and
- it disregards the 10th Amendment and the constitutional limits on the union government

Here's the question that keeps coming up in my head. What if they pass this, states/groups sue, and it goes to SCOUS? Could they not rule in favor of the second amendment and actually really open it up (considering the Chicago & DC rulings?) Or do you think they will just rule "safely" instead of constitutionally because they don't want to open the can of worms that the second amendment does?

I agree with you on points one and two. However, not on the third. Since it would be "making" (not fully, of course) laws more constitutional (lifting restrictions on keeping and bear arms), how would this run over the 10th? The states aren't supposed to have the right to restrict arms, so how could this be going on state's rights?

On another topic, does anyone know when the right to keep and bear arms was added to the TN Constitution?

[C. Richard Archie]

That Right was there from the onset. In the Original Constitution of 1796, {In This is Tennessee, Mary U. Roothrock [published 1963 by M. U. Roothrock Publishing of Knoxville, Tennessee] states, "Thomas Jefferson once said the Tennessee's first constitution, adopted in 1796, was the 'least imperfect and most republican' in the United States (page 196)}, in the Declaration of Rights (Article 11, Section 26) it states:

"That the free men of this State have a right to keep and to bear arms for their common defence."

There was no vote by the People on this Constitution, it was approved by the Federal Congress upon request for admittance to Statehood. From The Constitutional History of Tennessee by Daniel Towers Lewis:

Governor Blount's proclamation of November 28, 1795, recommend to the people, of the Territory of the United States south of the river Ohio, to elect five persons for each county, to represent them in a constitutional convention, to be held at Knoxville. At this convention, the People, of the Territory of the United States south of the river Ohio, formed themselves into a free and independent Republican state, by the name of the State of Tennessee. The state was formed for ". . . a Representation in the Congress of the United States before the termination of the present Session" [Letter from Governor Blount to the Secretary of State of the United States, See Exhibit 023 pages 419 - 420]. This letter created an offer from the People, of the Territory of the United States south of the river Ohio, made through their representative Governor Blount, to the United States of America. By AN ACT FOR THE ADMISSION OF THE State of Tennessee (Printed in 1 Stat. 491 - 492, See Exhibit 23 pages 424 - 425), Tennessee became ". . . one of the United States of America, on an equal footing with the original States, in all respects whatever, by the name and title the State of Tennessee...." By this Act the People of Tennessee became a party to all the organic laws of the united States of America.

In 1835 there was a Second Constitutional Convention resulting in what Lewis notes:

".... marked the accession of the people to power, the triumph of democracy and the beginning of a new era of progress, of activity and state leadership. . . . [Governor William] Carrol dominated the time, and to him most of all, is due the credit for establishing the new order, whose charter was the constitution of 1834."

The constitution of 1834 converted Tennessee from a republic into a democracy,

It has been alleged that the entire Convention was illegal being set against the laws of the current 1796 Constitution, however, the results relative to Right to keep and bear arms remained as stated in Article 1 Section 26:

That the free white men of this State have a right to Keep and to bear arms for their common defence [i.e. defense].

The third iteration of the Tennessee Constitution was established in 1870, post Civil War. From Lewis's work:

The Convention met in Nashville on January 10, and elected General John C. Brown of Pulaski as its president. This act clearly violated Section XXIV, of the 1796 Declaration of Rights: ". . . that in all cases the military shall be in strict subordination to civil authority" by placing a military official in charge of developing a new government for Tennessee.

Regardless, The Convention was held and Article 1 Section 26 was changed:

“That the citizens of this state have a right to keep and to bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime.”

The current "Intent to go armed" clause of the TCA is clearly Unconstitutional under these guidelines. That overreach by the Tennessee Legislature denies the non-criminal Tennessee Citizen their Right to keep and bear arms guaranteed by the Union Constitution, and sans empirical data (which does not exist, and has never been proffered by the Legislature) showing that the lawful wearing of arms by the legally entitled Citizen of Tennessee to INCREASE crime, it should be rescinded.

The Tennessee Supreme Court held in Andrew v. State:

But the power is given to regulate, with a view to prevent crime. The enactment of the Legislature on this subject, must be guided by, and restrained to this end, and bear some well defined relation to the prevention of crime, or else it is unauthorized by this clause of the Constitution.

From that same opinion:

If the party is protected in the keeping and use of such arms as we have indicated, only to be restrained by such regulations as may be enacted by the Legislature, with a view to prevent crime, it would seem that the use of such a weapon for defense of the person when in actual peril, the end being a lawful one, ought not, upon any sound principle, to subject a party to punishment.

It is my opinion that the Rights to keep and bear arms as guaranteed by the Constitutions of the Union and the State of Tennessee to the non-criminal or mentally incompetent Citizen have been abrogated by the Legislature.

[ProguninTN]

http://www.foxnews.com/politics/2011/11 ... ill/?test=

So, the bill has passed the house. Perhaps the bill can be fixed (amended) in the senate ? If not, I hope it is scuttled. As previously discussed, it is flawed. Flawed bills could be used against us. (Think trojan horse.)