Thursday, July 23, 2009

Perspective On The National Concealed Carry Reciprocity Amendment

All over the nation, on both the internet and the news channels, a lot is being made of the Thune amendment that would have required states to recognize the concealed carry permits of other states. Now the amendment has failed and quite frankly, I expected that. Realistically, even the contents of the amendment don't matter a whole lot, I do not believe that it was meant to actually pass.

If you want to read it, you can do so here.

There are however some things about this that are very important.

One, we now have an established list of who does and does not vote for gun rights issues. Combine this with the coming voting record on the Sotomayor confirmation and we will have a very clear picture of where each senator stands so that we can make a good choice in 2010. So let us look at the list of votes.

YEAs ---58
Alexander (R-TN)
Barrasso (R-WY)
Baucus (D-MT)
Bayh (D-IN)
Begich (D-AK)
Bennet (D-CO)
Bennett (R-UT)
Bond (R-MO)
Brownback (R-KS)
Bunning (R-KY)
Burr (R-NC)
Casey (D-PA)
Chambliss (R-GA)
Coburn (R-OK)
Cochran (R-MS)
Collins (R-ME)
Conrad (D-ND)
Corker (R-TN)
Cornyn (R-TX)
Crapo (R-ID)
DeMint (R-SC)
Dorgan (D-ND)
Ensign (R-NV)
Enzi (R-WY)
Feingold (D-WI)
Graham (R-SC)
Grassley (R-IA)
Gregg (R-NH)
Hagan (D-NC)
Hatch (R-UT)
Hutchison (R-TX)
Inhofe (R-OK)
Isakson (R-GA)
Johanns (R-NE)
Johnson (D-SD)
Kyl (R-AZ)
Landrieu (D-LA)
Lincoln (D-AR)
Martinez (R-FL)
McCain (R-AZ)
McConnell (R-KY)
Murkowski (R-AK)
Nelson (D-NE)
Pryor (D-AR)
Reid (D-NV)
Risch (R-ID)
Roberts (R-KS)
Sessions (R-AL)
Shelby (R-AL)
Snowe (R-ME)
Tester (D-MT)
Thune (R-SD)
Udall (D-CO)
Udall (D-NM)
Vitter (R-LA)
Warner (D-VA)
Webb (D-VA)
Wicker (R-MS)

NAYs ---39
Akaka (D-HI)
Bingaman (D-NM)
Boxer (D-CA)
Brown (D-OH)
Burris (D-IL)
Cantwell (D-WA)
Cardin (D-MD)
Carper (D-DE)
Dodd (D-CT)
Durbin (D-IL)
Feinstein (D-CA)
Franken (D-MN)
Gillibrand (D-NY)
Harkin (D-IA)
Inouye (D-HI)
Kaufman (D-DE)
Kerry (D-MA)
Klobuchar (D-MN)
Kohl (D-WI)
Lautenberg (D-NJ)
Leahy (D-VT)
Levin (D-MI)
Lieberman (ID-CT)
Lugar (R-IN)
McCaskill (D-MO)
Menendez (D-NJ)
Merkley (D-OR)
Murray (D-WA)
Nelson (D-FL)
Reed (D-RI)
Rockefeller (D-WV)
Sanders (I-VT)
Schumer (D-NY)
Shaheen (D-NH)
Specter (D-PA)
Stabenow (D-MI)
Voinovich (R-OH)
Whitehouse (D-RI)
Wyden (D-OR)

Not Voting - 3
Byrd (D-WV)
Kennedy (D-MA)
Mikulski (D-MD)

Ok, first there is no surprise that Kennedy didn't vote, I am amazed that he is still actually considered a sitting senator. The other two that didn't vote would have voted 'no' so they wouldnt have mattered much either.

The names marked in light blue above are ones that are no surprise either. They all either come from states that are heavy on gun control, or they are outspoken advocates of gun control.

Two of the 'no' votes are a bit interesting. Gillenbrad was supposed to be a huge change for NY, apparently she isn't. Frankin is the new boy on the block, so I am not very surprised that he voted the way his party wanted him to.

The real kickers are the 'yes' votes I highlighted in dark green. First Hagan, I know for a fact that she is no supporter of the second amendment. Same with Martinez, Feingold, Reid, Landrieu and Bayh. My guess is that the Democrats on that list are the ones that have the most to loose by voting against a pro-gun issue. Martinez is the most odd one on the list to me. I would bet good money that if we looked at the time frame of the vote, we would see that these names were all people that voted late, after they already knew that the bill wouldn't pass.


Now let us talk about another issue that needs to be addressed.

Is this bill an overstepping of federal bounds?

In the past week I have heard much discussion from both sides about how this bill is not appropriate or that it creates a slippery slope.

What has to be looked at is whether or not the federal government has the authority or legal grounds to regulate what has traditionally been held to be a state issue, the issuance and recognition of concealed carry permits.

For reference it is necessary to cite several things:

The Second Amendment:

A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.

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.

The Fourteenth Amendment:
Section One:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

And Section Five:

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

These are the relevant parts of the Constitution to this issue.

First let us talk about the Second Amendment. Several court cases, most recently the Heller case, have established that "The People" refers to an individual right. The case law on this issue is hardly settled law, but I suspect that the case for Incorporation will be ruled on within the next two years. Most likely the equal protection clause of the Fourteenth Amendment will be used to do so.

Now, whether or not the carrying of concealed arms is the bearing of arms as referenced in the Second Amendment is a discussion for another day. Personally I feel that the history of case law ruling that concealed carry is a privilege instead of an aspect of bearing arms is wrong.

Next we should talk about the Tenth Amendment. My argument here is that the Tenth Amendment specifically establishes that since the Second Amendment is a right granted "the people", the states have no grounds to reserve any authority to it. The fact that the Second Amendment is specifically enumerated as applying to the people makes it so that the states do not have authority over it.

Much has been said in the past two weeks comparing this amendment to things like drivers license and marriage license reciprocity. Those comparisons are invalid because the privilege of driving and the right* to marry are not specifically reserved to the people or the federal government in the Constitution and under the guidelines of the Tenth Amendment and therefore are reserved to the states. In my eyes, states rights should only apply in matters that are not specifically enumerated by the Constitution. In this case, the bearing of arms is a federally protected right and should be vigorously protected by the federal government in all states and for all citizens.

Finally we should talk more about the Fourteenth Amendment. The privileges and immunities clause and the equal protection clause of the Fourteenth Amendment makes it clear that all citizens should be treated equally under the law. Since the right to keep and bear arms is a specifically enumerated right in the Constitution, the laws regulating the bearing of arms should be universal across all states. Realistically, almost all of the gun laws in this nation probably violate the Second Amendment, but courts have seen things differently and decided that some restrictions are not "infringements."

Now the reality of the nation we live in probably would not allow for there to be only federal laws for guns and I am not all that sure that I would want that in the first place. So I am willing to concede that something like the amendment that was voted on today is probably more appropriate. Section Five of the Fourteenth Amendment does allow for legislation such as this.

In conclusion, I firmly believe that this is a proper use of federal power to enforce protections of the right to keep and bear arms. Though I still believe that the amendment was poorly constructed and implemented. As I said before, I don't believe that the intent of the bill was that it get passed anyways.

* I do believe that marriage is a right, even though it is not specifically enumerated by the constitution. That is a discussion for another time.

EDIT: The first commenter brings up the full faith and credit clause, one that I had overlooked. That just makes the case even stronger though I believe that the case is strong enough even with my oversight.

1 comment:

Anonymous said...

You forgot to include Article IV, Section 1, U.S. Constitution as follows:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

I feel the Thune amendment is flawed because it neglected to address legal and state/county government issues that could affect resident and non-resident licensing program.

Also, it would be unfair for the residents to be continually denied the right to CCW and even gun ownership in restrictive states such as New Jersey, coastal counties of California and New York downstate counties while the residents of "free" states can visit with concealed carry if the amendment gets attached and the bill passed to be signed into law without interference. Such short-sightedness should not be tolerated and I am only half-glad the amendment failed to pass for the reasons cited above.

I sent the letter addressing the aforementioned vexing issues to my senators as well as Sen. Thune and Sen. Vitter. I think I will have to repeat in differently worded letters so the pro-carry senators understand clearly the unintended ramifications of the poorly-worded amendment that could cause some states to suspend non-resident licensing programs due to revenue loss and even resident licensing program in may-issue states because the prevailing politics in the may-issue states want to tighten the laws even further.

I believe in state issues, but the U.S. Constitution is the "law of the land" and it should apply to upstanding citizens the rights per 2nd, 9th, and 14th amendments plus Article IV Section 1.

I will make suggestions to the representative senators how to improve the concealed carry provision and try again in 2010 or 2011 after the change of seats shift to the right in reaction to Prez Obama and Democratic Party's attitude a la 1994.