By Ryan McMaken*
With a Republican in the White House, the anti-gun-control lobby smells a bit of blood in the water. Now is the time, they suggest, to pass national gun-licensing reciprocity laws forcing gun-restrictive states to recognize permits issued by gun-permissive states.
Writing in The Hill, Tim Schmidt sums it up:
It is time for there to be national reciprocity for concealed carry permits, instead of the patchwork of laws governing reciprocity that vary by state. Virginia, where the [recent shooting of Congressman Steve Scalise] happened, has reciprocity for some states’ concealed carry permits, but if members would have brought their guns back and forth from D.C., they would have been breaking the law. It should never be a crime to be responsibly prepared to defend yourself in any possible situation.
Sen. John Cornyn (R-Texas) and Rep. Richard Hudson (R-N.C.) have introduced the Constitutional Concealed Carry Reciprocity Act of 2017, which would allow legal gun owners and concealed carry permit holders nationwide to responsibly arm themselves no matter where they are.
The way this is phrased sounds nice and totally unobjectionable: this bill sounds like it’s just saying people should be left alone.
The problem, however, is that the drive for mandated reciprocity is essentially a drive to increase federal involvement and federal control in the realm of gun policy.
Schmidt is right in the sense that, of course it should never be a crime to defend one’s self. The question remains however: should the federal government be the agency that guarantees that right? Should the feds have the power to overturn state and local laws that limit gun ownership?
This issue can be addressed from both a legal and Constitutional standpoint, and from a general philosophical decentralist view.
The Constitutionalist View
Suzanne Sherman at the Tenth Amendment Center has already weighed in against the idea on Constitutional grounds, based on two main arguments:
1. Reciprocity laws are compacts made among the states, and are not imposed by the federal government.
2. The Bill of Rights Doesn’t apply to the states.
On the first matter, Sherman notes that the proposed legislation would impose reciprocity on the states. This, Sherman notes, is a departure from what we usually mean by reciprocity, which denotes compacts that two or more states have voluntarily entered into.
Many advocates of forced National Reciprocity point to the “Full Faith and Credit Clause” found in Article IV, Section 1 of the Constitution. Such application is likewise problematic because it deviates from the original intent of the clause, lifted directly from the Articles of Confederation without any change to its meaning. This clause, as ratified, simply ensured citizens in one state could own land or property in another with the full rights of a citizen of that state. It in no way implied that one state had to recognize the institutions or licensing of another state. Driver’s licenses are acceptable for passing through various states, but it is, like CCW licensing, by mutual assent of the states. In other words, there is no federal statute mandating that one state must honor another state’s driver’s licenses.
In other words, the sort of “reciprocity” imagined by the backers of nationwide forced reciprocity is a new kind ofreciprocity that substitutes federal policy for decentralized state-level policy.
The enormous downside to this is that it federalizes what has long been recognized as largely the domain of state and local governments. Further federalizing gun policy may look like a fine idea right now, but as Sherman notes, it only takes a couple of new anti-gun appointments to the Supreme Court for the whole idea to blow up in the faces of pro-gun advocates. It’s far more prudent, Sherman contends, to work against any increase in federal involvement in gun policy.
The Bill of Rights Was Never Meant to Apply to the States
Sherman’s second point is one that Constitutionalists and decentralists have made for years. Namely, that the Bill of Rights is properly understood as a document that limits the federal government, not state governments.
When he introduced the proposal for a Bill of Rights to Congress, Madison wanted some of the provisions to be made applicable against the states. He argued that was where liberty would be most likely threatened. Again, he was defeated unanimously. The Bill of Rights was never understood to be applicable against the states. There is absolutely no historical evidence of the Bill of Rights being made enforceable against the states. Even nationalist John Marshall, in the 1833 case Barron v. Baltimore, was forced to admit this when he said that the first ten “amendments contain no expression indicating an intention to apply them to the state governments. This court cannot so apply them.”
…It was not until 1925, in the case of Gitlow vs New York, that the Supreme Court magically “found” the authority to apply the Bill of Rights against the states supposedly hidden away in the 14th Amendment…”
Sensing that things are going their way, it has become fashionable for some gun-freedom advocates to push for more federal control over state and local gun laws. One example is the recent case of Mcdonald vs. the City of Chicago which finally declared that the Second Amendment — like other portions of the Bill of Rights — applies to the states. Nevertheless, by pushing for more federal control in this case, gun-rights advocates are only pushing for more federal control over the states.
Even those who have no particular affinity for the current American Constitution have noted this as well.
Lew Rockwell writes:
[T]he purpose of the Bill of Rights was to state very clearly and plainly what the Federal Government may not do. That’s why they were attached to the Constitution. The states, under the influence of skeptics of the Constitution’s limits on the central power, insisted that the restrictions on the government be spelled out. The Bill of Rights did not provide a mandate for what the Federal Government may do. You can argue all you want about the 14th amendment and due process. But a reading that says it magically transforms the whole Bill of Rights to mean the exact opposite of its original intent is pure fantasy.
In other words, appealing to the 2nd Amendment as a means of limiting state and local gun laws is based on newly invented federal powers that have no basis in legal or historical facts around the Constitution as written. Thus, it is ironic that many conservatives — who often fancy themselves to be “strict constructionists” and “local control” people — have suddenly made peace with the idea of using the Bill of Rights to boss state governments around.
The Decentralist View
The Constitutional arguments are all well and good, but the US Constitution should never be viewed as the final word on any matter. The current constitution has always gone much too far in terms of centralizing political power in the United States, and the United States should never have been anything more than a loose military alliance and customs union. It’s no more necessary that the federal government regulate gun laws than it is necessary to define marriage or prohibit prayer at school sporting events.
In fact, gun policy, like abortion policy, wage policy, land-use policy, and everything else, should be relentlessly decentralized.
In his article “What We Mean by Decentralization,” Lew Rockwell explains the various reasons why decentralization is a mroe effective check on power than handing everything over to a Supreme Court or other federal “protectors” or rights.
Rockwell lists five reasons for this:
First, under decentralization, jurisdictions must compete for residents and capital, which provides some incentive for greater degrees of freedom…
Second, localism internalizes corruption so that it can be more easily spotted and uprooted….
Third, tyranny on the local level minimizes damage to the same extent that macro-tyranny maximizes it….
Fourth, no government can be trusted to use the power to intervene wisely…
Fifth, a plurality of governmental forms—a “vertical separation of powers,” … prevents the central government from accumulating power. Lower governments are rightly jealous of their jurisdiction, and resist…
Also key to this equation is the fact that decentralization offers a multitude of choices between different regimes in the face of government restrictions and persecution. If only one huge government has been granted the power to protect rights, to where will one go when the government fails to do its prescribed task? On the other hand, when a wide variety of smaller governments are charged with protecting rights, the failure by one regime is not nearly as catastrophic since the offending regime can be far more easily avoided through emigration and boycott than can a large centralized regime.
Thus, it might sound nice to put the federal government in charge of protecting gun rights, but the potential downside is immense given that federal policy can change easily, and then be imposed nationwide.
This isn’t to say that small, decentralized government are a cure-all either. Ideology always plays an important role, and in a world where the majority wants all private citizens disarmed — well, that will happen regardless of what level of decentralization exists.
However, if what we desire is a governmental landscape that offers more choices for residents and more limitations on state power, decentralization is the proper path, and handing over gun policy to federal “protectors” is a terrible idea.
About the author:
*Ryan McMaken is the editor of Mises Wire and The Austrian. Send him your article submissions, but read article guidelines first. (Contact: email; twitter.) Ryan has degrees in economics and political science from the University of Colorado, and was the economist for the Colorado Division of Housing from 2009 to 2014. He is the author of Commie Cowboys: The Bourgeoisie and the Nation-State in the Western Genre.
This article was published by the MISES Institute