When civil rights advocates on the Left speak of the Bill of Rights, they are generally not referring to all ten amendments. The Ninth and Tenth are frequently forgotten or dismissed as tautologies. The Second Amendment, especially, gets ignored altogether.
This is not just a matter of what legal cases groups like the American Civil Liberties Union will take up. It also trickles down into the general understanding of our rights as Americans.
While rights like free speech, free religion, and the right against self-incrimination are perceived, Left and Right, as the universal rights of all Americans, the right to keep and bear arms is idiosyncratically dismissed as a matter for local determination. That view is increasingly out of step with a nation that believes civil rights should not be different for citizens of different states.
Equal Citizenship in all 50 States
One major benefit of the U.S. Constitution is that you can travel among the states without leaving your rights behind. The Constitution joined 13 semi-independent former colonies into one united country and, while it preserved a great deal of regional autonomy, it meant that a citizen of one state could not be treated as a second-class resident in another.
If you are married in Georgia, South Carolina cannot consider you unwed. If you are allowed to drive a car in Maine, New Hampshire cannot void your driver’s license. Fundamental rights are even more secure: your right to free speech in California is guaranteed whether you live there or are just visiting for the day from Nevada.
The exception to all this is the right to bear arms. Your concealed-carry permit issued in Pennsylvania won’t do you a lick of good in New Jersey. You might even find yourself in jail, as Shaneen Allen did in 2014, for innocently assuming that states are required to give full faith and credit to the acts of their neighboring states.
If that term “full faith and credit” sounds familiar, it is because it is found in Article IV of the Constitution. The point of such a rule is obvious. As citizens of the same country, people should have the same rights when they travel from state to state. Although there have been policy exceptions to this rule over time, the general idea is that the “public acts, records, and judicial proceedings” of one state are valid in another.
The provision that follows that one reinforces the point: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” As Justice Joseph Story wrote in his “Commentaries on the Constitution of the United States” in 1833, the “intention of this clause was to confer on [the people] a general citizenship; and to communicate all the privileges and immunities, which the citizens of the same state would be entitled to under the like circumstances.” Courts have generally agreed with Story’s interpretation.
After the Civil War, the idea of national citizenship was expanded and augmented by the Fourteenth Amendment, which declared that “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.” Again, by this language the Constitution declares that any American can travel to another state and not be put at a legal disadvantage compared with citizens of that state.
The main author of the Fourteenth Amendment, John Bingham, said he understood the “privileges or immunities” in question there to be “chiefly defined in the first eight amendments to the Constitution of the United States.” Courts did not agree with this interpretation, with the result being that the states became bound by the Bill of Rights only gradually, with a few parts of them still not deemed to apply to state governments. It was not until 2010 that the Supreme Court held in McDonald v. Chicago that the Second Amendment applied to the states, 142 years after Bingham’s language was written.
Taken together, these three clauses of the Constitution are evidence that our rights do not stop at the state line. If a right is guaranteed by the Constitution, or a privilege granted by a state to its own citizens, those rights and privileges must also apply to people visiting from other states.
New Hope for the Second Amendment
Laws about gun ownership have still not caught up with the modern constitutional vision of McDonald and the Fourteenth Amendment. Now that the Second Amendment has been determined to apply to the states, we need a new legal framework to establish what that means for our outdated state gun regulations.
A bill advancing through Congress looks to address part of this, and ensure that Second Amendment rights are honored for non-residents of a state. H.R. 38, the Concealed Carry Reciprocity Act of 2017, would allow people who are allowed to own guns and who have concealed-carry licenses in their states keep their rights and privileges when they cross state lines. H.R. 38 passed the House this month by a vote of 231 to 198. The bill’s sponsor, Republican Rep. Richard Hudson of North Carolina, rightly calls it “a simple, common sense solution.”
Reaction has been about what you would expect from gun controllers. “Essentially, we are telling states who are responsible in the requirements that they place on their concealed-carry permits that that doesn’t matter anymore,” Democratic Rep. Eric Swalwell told the New York Times.
There is also some concern about how local law enforcement will manage the new rules, and specifically how they will access other states’ databases to ensure that people who claim to have permits from their home states actually do. Typically, gun controllers have ignored this legitimate point, instead claiming, as House Minority Leader Nancy Pelosi did earlier this week, that the bill would invite “violent criminals,” “domestic abusers,” and “convicted stalkers” to carry weapons, none of which is true. The law does not allow anyone to possess a firearm who cannot do so currently.
Swalwell’s comments echo those of many ill-informed opponents of concealed carry permits. As has been shown time and again in studies, concealed-carry permit-holders are among the most law-abiding people in America. They are even more law-abiding than police officers, and by a large margin. Leftists love to scoff at the theme of a “good guy with a gun,” but that is exactly the group opponents of reciprocity would ban from their states. Criminals, who do not bother to apply for permits and are ineligible to receive them, would have no such impediment.
Federalism is an important part of our republic, but the need for local control cannot be raised as an objection to the natural rights that the Constitution protects for all Americans. Just as no state could ban free speech for visitors from other states, neither should they restrict any other right guaranteed by the Bill of Rights, nor any privilege granted by state governments.
Over the past few years, states have been forced to reckon with expanded definitions of marriage that courts have discovered in the Constitution. It stands to reason that rights explicitly protected in that document must be given the same treatment. Hudson’s bill is a good step toward treating all Americans as equals in their Second Amendment rights.