Thursday, January 5, 2017

Would the Concealed Carry Reciprocity Act Allow Californians to Carry In-State on an Out-of-State Permit?

Representative Richard Hudson, R-North Carolina, introduced the Concealed Carry Reciprocity Act of 2017, which is a slight change from his 2016 act, adding recognition for permit less "constitutional carry" states.

Hudson characterized his bill as similar to one's driver license being valid in every state, which is an excellent analogy. Current recognition/reciprocity operates as basically a treaty system between states; Nevada chooses what states' permits to recognize or, as some other states do, enter into a formal agreement to recognize each other's permits. This bill would mandate recognition of any CCW permit.

Though Hudson is opaque on the subject (rightly so, as it might torpedo his bill), if one cannot get a CCW permit in his home state, then that person can carry in their home state with a non-resident permit from any state. Liberals are livid about that potential. The press release says the bill "...would allow people with a state-issued concealed carry license or permit to conceal a handgun in any other state that allows concealed carry, as long as the permit holder follows the laws of that state."

Does this mean people who live in California and have an out-of-state CCW can carry legally in California now? On the surface, yes, if you life in California and hold an Arizona, Nevada, Texas (etc.) permit, you, as a California resident, would be allowed to carry without a California-issue CCW. Here's what the Q&A says:
"Q: Will states lose their rights with concealed carry reciprocity?
A: States will still retain their authority to determine regulations for carrying within their borders and may decide where people are and are not allowed to carry concealed in their state."
This statement is pretty ambiguous and seems to be talking about local gun laws, like banning guns from government buildings. The wording of the law doesn't explicitly define what "regulations" apply. The language is difficult, but carefully parsed, seems to indicate that Rep. Hudson intended to allow out-of-state permits, held by residents. Interestingly, LEOSA has similar language (probably a source for this bill) and recent previous versions of this bill all read pretty much the same.

Section (a)

You must first not be prohibited from possessing a firearm and be carrying photo ID (a driver license). Second, you must have a CCW issued by any state, either resident or non-resident, or live in a constitutional carry state and thus doesn't have a permit, may carry a concealed handgun.

Let's break down the language. "[1.] and who is carrying a valid license or permit which is issued pursuant to the law of a State and which permits the person to carry a concealed firearm [2.] or is entitled to carry a concealed firearm [3.] in the State in which the person resides."

1. Clearly requires a CCW issued by "a State", not the person's state of residence. "a State" means just that; a state, not a specific one (the person's state of residence).

2. "or" separates the requirement and adds the alternative requirement of "entitled to carry a concealed firearm in the State which the person resides." This is referring to constitutional carry.

CCW "permits" and "licenses" are self-explanatory that they are authorizing the privilege to conceal one's handgun. To "entitle" someone is to give the legal right to do something, i.e. conceal a pistol, which Second Amendment does and constitutional carry states recognize. Entitlement is not permission; it's an acknowledgement that something exists. This distinction is important; by referring to privilege and to entitlement separately, the author is talking about two different subjects.

If the author meant that the person with the permit or license had to be "entitled" to carry the firearm in their state of residence, "entitle" to refer to a privilege would be the wrong word. Also, "or" would have to be subsisted with "and." The entitlement, a recognition of a right by the law, to carry a concealed handgun is the authorization to carry, not a permit or license.

3. "in the State in which the person resides" is seen only here, not in 1. meaning that the entitlement, not the permit or license, is granted by the state of residence.

Subsections (1) requires that the state in which one carries does have laws allowing residents to apply for CCW permits or license and allow concealed carry for lawful purposes; this is every state in the Union save Vermont. Subsection (2) primarily applies to Vermont, which is the original constitutional carry state, in that its laws do not prohibit concealed carry nor do they issue permits. Even Hawaii, Maryland, and New York, as restrictive as they are, have laws authorizing CCW permits (in theory) on the books. If a state outlawed concealed carry (which they could do, and force a concealed carry lawsuit, such as Peruta, to go to the Supreme Court).

On the other hand, one could say that constitutionally, while the 14th Amendment (see below) requires the recognition of things like licences/permits from state-to-state, Congress still can't force a state to allow residents to carry in their home state on an out-of-state permit. That's above my pay grade, but there may be an argument there on states' rights grounds

What It Doesn't Allow

Subsection (b) doesn't override state or local laws on where you can carry (public and private property restrictions). If school or college campuses are off-limits, sorry, they're off limits. Federal law is basically saying that your CCW or your residence in a constitutional carry state only allows you to carry concealed, as if you had a valid permit, in whatever state you are visiting. You still have to abide by the the local laws.

While there is some ambiguity, Hudson's statements indicates that local laws aren't complete invalidated. Again, the Q&A says:
"Q: Will states lose their rights with concealed carry reciprocity?
A: States will still retain their authority to determine regulations for carrying within their borders and may decide where people are and are not allowed to carry concealed in their state."
Do I Have to Follow Local CCW Restrictions? (Subsection (c))

Remember the exemption under section (a) is from a state's concealed carry without a permit laws; it's essentially an equivalent of having a state-issued permit.

You "may not be arrested or otherwise detained for violation of any law or any rule or regulation...related to the possession, transportation, or carrying of firearms" of the state you are carrying in unless you do so in violation of the bill (as in no CCW and you're not from a constitutional carry state).

The bill exempts concealed carriers from the requirement to have an in-state CCW (the "manner...provided for by this section"). By definition, one would be exempt from local CCW restrictions, such as a sheriff's condition that one could only carry to/from the bank, during certain hours, or prohibit one from carrying while in a bar. Those regulations are a condition on issuance, meaning it's an agreement between you and the state that if you don't break their rules, they'll let you carry. Sorta like mom and dad saying you can borrow the car, as long as you don't drive with friends and are home by 12; your driver license doesn't turn into a pumpkin at midnight.

The bill specifically does not exempt one from observing laws on where you can carry (subsection (b)). This would include laws that prohibit concealed carry in bars or churches (private property). Texas 30-06 signs would apply to someone from Arizona. New Mexico can't apply the terms and conditions of their license (NMAC to your Nevada license, in that you must carry the handgun listed on your license.

So state law, yes, you must abide by it, but no, you don't have to follow local conditions of issuance that state-residents have to follow.

Unintended Consequences

A potential problem is a literal interpretation of "may not be arrested or otherwise detained for violation of any law or any rule or regulation...related to the possession, transportation, or carrying of firearms." It sounds a lot like federal preemption of local gun laws. Taken literally, as long as you lived in a constitutional carry state or had a CCW from somewhere, you cannot be arrested or detained for anything related to the possession, transportation, or carrying of firearms, excepting prohibited places (schools, parks, etc.).

This could mean that someone carrying in compliance with this section would be exempt from laws such as carrying while intoxicated. In Nevada, it's legal to carry in a bar, but if you're going to soused, you can't carry when you're drunk. It is a crime to possess a firearm while intoxicated; it's not a crime for bars to ban guns under the penalty of trespassing, etc. Heck, even 51% like those of Texas, stupid as they are, would be invalidated because the bill exempts the business's private rules, not Texas state alcoholic beverage regulations.

That's an unintended consequence and probably not the author's intention, as is implied in the Q&A document. Hudson's intent was to make it illegal for police to arrest or detain someone under state law for carrying concealed without an in-state permit. Even so, the language as-is could be interpreted to get rid of a lot of laws that keep the local drunk from fingering his Glock in the bar, etc.


Rep. Hudson hasn't said anything about residents of restrictive states carrying on non-residents permits; probably for good reason. This gives the left major indigestion. It would in a stroke totally invalidate the restrictive permitting systems of California et al. Someone in San Diego could carry on an Arizona permit, California law be damned.

This is likely a violation of state's rights. States have the right to set criteria for their permits ("shall not be infringed" aside). Take driver licenses for a second: you have to have a license issued in the state you live in, not some other state. Floridians can't go up to Georgia for a driver license if they can't get one in Florida. Imagine the problems if taxes were paid this way: everyone in the country would choose to pay Nevada state income tax!

What will probably happen is the wording will be amended further through the process, in committee or by the Senate, and will remove any ambiguity that would allow that to happen. It would hush up the Democrats a bit and avoid and potential state's rights challenges in court, which would probably be successful.

Some have argued that forcing states to allow residents to carry in their home state on a permit from other state would be an unconstitutional usurpation of authority and set bad precedence. While we all love the Second Amendment and can agree that states like California need their gun control schemes to be put down hard, federal legislation (this way) isn't the way to do it.

The worry is that if the federal government essentially mandate a state must allow it's residents to carry on any state's permit, the federal government could, in the future, do the opposite and mandate no state allow guns to be carried. Once Congress assumes a power, it can quickly go the other way. There is a congressional remedy though.

Section 5 of the 14th Amendment gives Congress the ability to pass legislation to enforce the provisions of the amendment, namely from Section 1: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States..." One interpretation is that this means that the Bill of Rights applies to the states, and by extension, Congress can go after states that infringe on constitutional rights. Of course, it's an abstruse area of constitutional law and would probably go to the Supreme Court, but a law compelling all the notorious anti-gun states to fall in line would solve a lot of problems.

As for residents of anti-gun states, the only real practical, solution is a Supreme Court case finding that there is a right to concealed (and open carry) outside the home. A win in Peruta would damn the anti-gun states' schemes. Under President Trump and conservative court, this could actually happen.

Will It Pass?

Trump made it a campaign promise and he's reportedly actually progun (and a privileged New York City permittee himself). Hudsons' earlier bill, HR 986 of the 114th Congress, had 216 co-sponsors, while a similar bill in the House had 103 and senate bill 35 co-sponsors. SB 649 of 2013 got 57 yes votes (13 from Democrats). So it can happen. If it looks like it is going to happen, there will be a huge push from the NRA and every other gun rights organization under the sun to bombard Congress with requests to pass it.

Your humble editor's bet is that a version of this bill will pass, but it will likely be amended to require that one carry on a resident permit while in their home state and clarify that carriers have to play by local rules, insofar as they can logically apply.

Disclaimer: I may be reading the bill too closely.

1 comment:

  1. Good Work my good and humble editor! I sincerely hope your bet is correct, and we citizens finally win the right to carry no matter what state we happen to travel to. That has been my worse fear since I have been a Concealed Carrier; I travel a lot for work, and given the nature of my work, I always holster my trusted XDm to my side before leaving in the morning. Most the time, lately, if I travel out of State, it has been to Arizona or Utah, but I do have a pretty sizable client base in California, but so far I have been able to handle all my clients from that state remotely, and have found ways to avoid having to travel to the state. However, I know one day soon, I will likely have a project that necessitates my travel back to The Golden State, and then I would have to likely leave my gun behind, and one shouldn't have to be at the mercy of criminals who frequent some of the neighborhoods of a few of my clients.

    I should be able to keep my firearm on me, hidden out of sight, but ready to go if that moment arises. I have had plenty of training, and still train weekly. I am no police officer, and am under no illusions that I know what they know, but I do know, that having me in a situation where there is no police officer present, is better than being in a life threatening situation where no one has any training at all. These things do happen, all too often I am afraid, and despite California's intense gun laws, California has almost double the gun involved violence than Nevada does per capita, meaning I would be traveling into a state where the likely hood of me wondering into one of those situations actually increases, yet the state would actually deprive a law abiding citizen of his right to protect himself. Not only is that unconstitutional, but it is flat out wrong, morally and ethically.

    But I am a law abiding citizen, therefore I cannot choose to ignore California law, then I would be no better then the Criminals. This is why I have chosen to not go to the good State of California since I began carrying, and have conducted all of my business in that state remotely. It's a shame too, because I spend a bit of money when I am there, and I am sure I am not the only Nevadan whom chooses not to step foot in California because it thinks that someone like me, who carries concealed, should be criminalized, and I chose not to add to that states economy.

    This law would allow me to finally cross into California without labeling my actions criminal, I could finally choose to visit some of my clients and get some work done in person, and again get to enjoy all that the great state of California has to offer, without having to fear violent criminals. I would in no way add to the dangers already present in California and would carefully obey all laws of the state, I just would feel more safe, why would the state want to deny me that extra security?

    Any ways, this debate, has won over someone who is otherwise pretty progressive in a lot of my politics. I am beginning to see that the lines and labels that we draw on people, are only to keep the focus on fighting against each other, instead of fighting together as Americans for freedom and against Tyranny. At the end of the day there is still a lot of stuff that Americans on opposite side of the spectrum can't agree on, but I believe as Americans, we can agree that fighting for liberty is the right thing to do, and we all need to step back and evaluate ourselves in the mirror sometimes and say, "Is what I am fighting for denying an individuals freedom, or is it giving them one?" If the answer is denying an individual (any american) his or her freedom, then you should probably reevaluate your position, as I have done with the gun argument.

    Anyways, sorry for the long comment, I just get a little passionate about this subject. I hope you are right and this does pass!