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November 17, 2011

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Danube of Thought

Should the federal government dictate reciprocity on firearm carry permits to states as part of its authority under the Commerce Clause and the incorporation view of the Second Amendment?

Absolutely not.

Melinda Romanoff

That bill will light some hair on fire.

Ranger

I think the entire point is to force a few Red State Dem Senators to squirm a little before 2012.

The fact that it also uses something the left hates to show them how Federal power can be used against their agenda is just a bonus.

Jack is Back!

We all know that this is going nowhere because of the Senate and its rules plus an Obama veto. But what it does do is, like Ranger noted, make a few Red State Dem Senators pucker up a little. Is this whole initiative in response to the guy who got caught in New Jersey, went to jail and put Christie in a tough spot?

But again, nice try, but bad idea, if you are out there complaining about ObamaCare and the commerce clause.

Sue

If the good people of the great state of New York want to have strict gun control

Hmmm...we aren't talking about a privilege here. We are talking about a right. Guaranteed by the 2nd amendment. It would be like saying I have the right to free speech in Texas but when I come to New York I abide by New York's rules.

Sue

I think my governor had the right idea on gun control. Use both hands.

Jon

There is a "just passing through" law. It's called the federal Firearms Owner's Protection Act. Carrying unloaded, cased firearms in your trunk while on an interstate car trip such as you describe should be safe for the firearms' owner under FOPA. However some states, New Jersey for sure, ignores the law for purposes of arrest and requires the arrested person to plead the FOPA as an affirmative defense at trial. So you may still spend some time in custody and go through the expense and inconvenience of a trial despite the federal law. And good luck getting your firearms back.

Greg Q

New York won't accept out-of-state licenses for people under 16. That would be a quick example of local public safety concerns trumping the principle of reciprocity.

Great. So a state can refuse to honor a concealed carry permit for someone under 18, or 21, depending upon state law. But a 16 year old with bad grades in Nebraska can get a driver's license there, and then drive in CA, even though he couldn't get a driver's license in CA with those grades.

It's called "Full Faith and Credit", and it's part of the US Constitution. If you move to NY, then you're under NY's rules and have to get an NY driver's license. But if you're just visiting, then your home state driver's license is all you need.

And unlike firearms, there's no Constitutional Amendment protecting your right to keep and drive cars.

If NY wants to deny everybody the right to concealed carry (including off duty cops, and private security guards), then that's fine. But if they're going to let the politically connected have them, then they have to respect every other state's concealed carry licenses.

Ignatz

This doesn't seem quite so cut and dried to me.
The 2nd amendment guarantees the right to keep and bear arms.
If a state's laws are such that a person entering that state can neither openly carry nor concealed carry hasn't his fundamental right to bear arms been infringed? That's not a states rights issue. That's what incorporation means. I don't particularly like the incorporation doctrine but it does exist.

--the Supreme Court has backed a right to self-defense in the home and not much more--

No, that is clearly wrong and is the result of using the Times as a source. The court held in Heller that there is a fundamental right to keep and bear arms for traditionally lawful purposes and gives as one example the right of self defense in the home.
It also recognizes as one of those rights participation in the militia.

Ignatz

--It's called "Full Faith and Credit"--

'Full faith and credit' is probably not applicable as it applies most usually to proceedings and judgements from other states not statutes.
Otherwise there would be one uniform civil and criminal code nationwide.

JM Hanes

"But the idea that a tourist from Arizona can bring Arizona's concealed carry laws with him to the mean streets of New York for a week-long visit strikes me as absurd."

It's certainly not absurd that an Arizona visitor might want to carry a weapon in N.Y. The absurdity arises when it's legal for an Arizonan to carry a weapon down 3rd Ave., but illegal for New Yorkers.

I'm not sure it's really much of a small government conundrum, though, because even the small government folks have always maintained that addressing matters of law & order and defense (though broadly brushed here) is, in fact, one of a very few proper functions of government. If the right to keep and bear arms is individual and absolute, however, then state governments would have no business regulating it at all, either.

The fundamental conflict arises when the right to carry weapons is perceived to be at odds with public safety. Ironically, and significantly, we find the clearest, universal, agreement on limiting an essential right in the public safety exception to the 1st Amendment.

RK

Isn't there already a drive-thru provision?

http://en.wikipedia.org/wiki/Firearm_Owners_Protection_Act#.22Safe_Passage.22_provision

Johnv2

Please remember that just as local driving laws are the ones in effect, even with an out of state license, so will local firearms ordinances be in effect, even if you have an out of state CCW. Concealment, brandishing, legal justification for use of deadly force; you'll still be subject to the local rules. AFAICT, all HR 822 does is require the State to recognize your license is as valid as the licenses issued locally. The good citizens of NY can still decide that you have to maintain concealment, you cannot brandish, and you may have a duty to retreat before lawful use of deadly force. There is a lot of scope for State regulation of carry.

JM Hanes

Johnv2:

You appear to be quite correct. Does Politico even have a token ombudsman? Here's the reporter's journalist's opening paragraph (all emphasis mine):

If congressional gun-rights stalwarts get their way, a firearms owner with a concealed-weapons permit issued in Utah could be allowed to carry that gun in New York — regardless of the gun laws in the Empire State.

Here's what the stalwarts are actually asking for (emphasis mine):

GOP backers of the National Right-to-Carry Reciprocity Act — which would allow those with a concealed-weapons permit in one state to carry their firearms elsewhere as long as that state also allows concealed carrying — say they don’t see that as an issue.

So much for "regardless!"

JM Hanes

Forgot the Politico link (to the source of Morrissey's excerpt).

Greg Q

Ignatz, JM Hanes:

Other than same sex marriage, if you're married in one state, then every other state has to recognize your marriage, even if you would not have been allowed to get married there. If you have a driver's license in one state, then every other state has to let you drive there, even if you would not have been able to get the license if you were a citizen of that state (the sole exception I know of being the 16 year age limit).

You still have to follow the same laws as the people licensed by that state, as Johnv2 pointed out. But the fact that you're not sufficiently politically connected in that state to get a permit shouldn't keep you from using your perfectly valid permit while visiting NY or CA, any more than CA or NY can force your to pass their rules for driver's licensing before driving through their states.

Cecil Turner

I see others beat me to it. The idea of "consistency on states rights" draws a false equivalency between things like bearing arms and forcing people to buy health insurance. The first is undeniably protected by the Constitution (yet routinely denied), the second is an expansion of government power into an area never contemplated by the founders.

The recent court cases are a step in the right direction. But the real outrage in this case is not that the feds might step in to protect guns rights, but that the states (and cities) feel obligated to violate them. I see no more justification for states' efforts to ban firearms than I would for their right to ban free speech. Some things are better left to the states . . . but civil rights violations aren't.

Ignatz

--Ignatz, JM Hanes:

Other than same sex marriage, if you're married in one state, then every other state has to recognize your marriage, even if you would not have been allowed to get married there.--

Not sure what that is in response to that I wrote, but it just affirms what I said about the "full faith and credit" clause; it applies to procedural and judgments not statutes.

steve

Hey, why let a principle like state's rights get into the way of forcing some good conservative values down everybody's throats?

The fact is that neither party is consistent, both are more than willing to abandon principles if doing so leaves them with something they want.

And both sides are real good at rationalizing this away, coming up with reasons why they aren't being hypocrites (for example, read the comments arguing that it okay to force states to accept permits issued elsewhere... just don't ask them if they likewise agree that states should have to accept marriages issued elsewhere).

Cecil Turner

Hey, why let a principle like state's rights get into the way of forcing some good conservative values down everybody's throats?

Sorry, but this is simply wrong. The "principle" of "states rights" is that embodied in the tenth amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
That fairly obviously applies to things like gay marriage and abortion, it just as obviously doesn't apply to things like free speech and the right to bear arms. There's no inconsistency or hypocrisy in making those distinctions, it's simply relegating the proper powers to the proper level of government (and recognizing some powers are prohibited to all levels of government).

Ignatz

Steve you are arguing against the principle of "incorporation" which has long been explicitly endorsed by people who wished to apply the Constitution's restrictions on the federal government to the states.

The hypocrites would be those who believe the incorporation gate only swings one way, now that the 2nd amendment has been recognized for what it plainly is; a constitutional, individual right.
If gay marriage is also found to be a constitutional right it would be subject to the same doctrine. For now it properly isn't.

Sara (Pal2Pal)

Who knows how many times the law has changed since I was 17, but we moved from Pennsylvania to Buffalo, NY when I was a senior in high school. At that time, I had my own car, had had my PA driver's license almost two years, but for the six months we lived in NY before I turned 18, I was no longer able to drive between sundown and sunup. Summer wasn't too bad, but in the Winter, this law drove my Mother crazy as she counted on me to do all kinds of errands for her after school and in the early evening and I couldn't. I got around it for myself, by picking up my boyfriend before the sun went down and then letting him drive, since he was a year older. He would bring me home and then jog home, usually at around midnight, unhappy on the nights the temp was 20 below. LOL.

daddy

" When in Rome..."

Tony Bennett and Bill Evens did a teriffic rendition of "When in Rome" about 20 years ago; just those 2 and no other accompaniment.

I can't get it to play over here (Chinese censorship), but I think this is the correct version via Youtube and Bill Evens and Tony are wonderful together: When in Rome.

Melinda Romanoff

Bill Evans, FYI. Awesome pianist.

daddy

HI Melinda,

T'is a bummer that I miss so much over here because they censor so much important stuff, such as YouTube Music Video's, CNBC broadcasts, Miss Cleo, Fado Guinness sessions, etc:)

F'er instance, in that great tune Tony does in his early career, does anybody actually know the reason why (Chicago, (that toddlin' town) is the town that Marty Fay could not shut down?

Teacher's Union perhaps? Oh well.

Damned if I know, but anyhow i've never danced with my wife, in Chicago, so of course I've never lost my Blues there either...

Porch, when exactly are the Gourds doing Guangzhou?

Greg Q

Ignatz,

Getting a license to marry, getting a license to drive, getting a license to carry concealed. How is it that the first two qualify as "it applies to procedural and judgments not statutes", but the third doesn't?

The bill doesn't say that the state has to change how it gives out concealed carry permits, the bill doesn't require states to change their laws on the castle doctrine, self-defense, or brandishing. The bill doesn't even require states to issue such licenses at all, to anyone.

It simply says that if the state DOES issue concealed carry permits, then it has to honor those from other states. Looks to me like a pretty perfect 1:1 mapping to driver's licenses and marriage certificates.

So tell us, exactly how this is different. I'd like to know.

Otis B. Driftwood

"If the good people of the great state of New York want to have strict gun control, feel free to move elsewhere."

I'm sure we'd all be perfectly fine with NY enacting a nearly-impossible-to-meet standard for issuance of a license to blog and/or report on/comment about the news(with obvious exceptions made for celebrities, the fabulously wealthy, and the politically well connected).

Of course we would. Right?

MarkD

I'm pretty sure it doesn't matter what those of us who are residents of upstate New York want or think. If I had a pistol permit, it still wouldn't be valid in NYC.

Mark Folkestad

Nearly seven hundred comments in the newest thread and less than a hundred here? I'm amazed this one didn't arouse more passion. Count me as an American who believes in rights granted to me as an American citizen, not as a resident of Eagan or of Dakota County or of Minnesota. The language of the Second Amendment is "bear", and no amount of obfuscation can change a clear meaning. The legislation being worked on does NOT grant a right to carry where the state does not allow anyone to carry concealed, so I can't imagine what has gotten some so worked up. Further, I can't imagine a world in which I would carry my .357 magnum revolver and make the potential threat to public safety worse when everyone admits that the gang-bangers are armed to the teeth.

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