The NRA Versus the Constitution

Its top priority, ‘concealed carry reciprocity,’ would violate states’ rights and cannot pass legal muster.


Concealed-carry holsters and belts at the Guntoberfest gun show in Oaks, Pa., October 6, 2017.
Concealed-carry holsters and belts at the Guntoberfest gun show in Oaks, Pa., October 6, 2017. PHOTO: JOSHUA ROBERTS/REUTERS

The Supreme Court last week struck down the federal ban on legalized sports gambling as a violation of states’ rights—and that’s bad news for the gun lobby. In Murphy v. NCAA, the justices ruled that since Congress had declined to establish a national standard for sports betting, the federal government had no power to “command” states to prohibit it. “Conspicuously absent from the list of powers given to Congress,” Justice Samuel Alito wrote for the majority, “is the power to issue direct orders to the governments of the States.”

The ruling means Americans will no longer have to travel to Las Vegas to bet on big games. But for the gun lobby, there’s a deeper message. Its top legislative priority lately has been “concealed-carry reciprocity”—but would it be constitutional?

Concealed-carry reciprocity would undermine many state laws governing who is allowed to carry a hidden, loaded gun in public. Instead of creating a federal standard for all of America, the idea is to force each state to accept the concealed-carry standards, or lack of standards, of every other state.

Today, states set their own policies, consistent with the Second Amendment. Twelve allow their residents to carry a concealed firearm without a permit or license. Another seven—a diverse group including Georgia, Pennsylvania, South Dakota and Washington—require a permit but do not require gun-safety training. Under a federal reciprocity mandate, people from “permitless” states or states that do not require training could freely carry nationwide, including when they are visiting states like New Mexico, California and Minnesota that do require permits and training of their own residents.

Such a mandate would be constitutionally flawed for reasons similar to those in Murphy v. NCAA. The federal legislation would set no nationwide standard, yet it would undermine states’ ability to enforce their own laws within their own borders. The “anticommandeering” principle the Supreme Court reaffirmed last week does not favor a single set of policies. In Printz v. U.S. (1997), the justices applied the same logic to strike down a federal mandate requiring state and local law enforcement to perform background checks on handgun buyers.

The Constitution gives states broad power to pass laws protecting public health, safety and welfare. Since America’s founding, states have regulated the carrying of weapons in public within their borders. Concealed-carry reciprocity would seriously undermine this authority.

The gun lobby does not want to have to fight state by state for looser standards. Some states would refuse to roll back or repeal their current laws. Earlier this month in Oklahoma, for example, the Republican governor vetoed a “permitless carry” bill that would have allowed people, generally those 21 or older, to have a concealed, loaded handgun in public without any license or training.

Concealed-carry reciprocity is a bad idea, one most law-enforcement agencies strongly oppose. It would be an unprecedented intrusion into state and local decisions about public safety. But if that doesn’t convince the gun lobby, it should consider the idea’s dubious constitutionality.

Mr. Tirschwell, a former federal prosecutor, is director of litigation and national enforcement policy at Everytown for Gun Safety.

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