The Volokh Conspiracy
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It has sometimes gotten lost amid some of the other doings in Congress this week, but the House is considering a bill, HR 38, the "Concealed Carry Reciprocity Act of 2017," that would create a federal right of reciprocity for holders of a state permit to carry a concealed firearm.
There are questions, however, about Congress's authority to pass the bill, which seems to stretch the limits of the commerce power and of the 14th Amendment's enforcement power, as discussed in posts by Josh Blackman and Joseph Blocher, among others. But there may be another way.
In a letter sent today, Stephen Sachs, Randy Barnett and I argue that Congress should not rely on the commerce power but should instead rely on the Full Faith and Credit Clause. An excerpt:
The current draft bill conditions the right to carry a concealed handgun on whether the handgun was shipped or transported in interstate or foreign commerce. H.R. 38 does not directly regulate "Commerce with foreign Nations, and among the several States," U.S. Const. art. I, § 8, cl. 3. Instead, it assumes that a handgun's past movement in cross-border commerce subjects the handgun to federal regulation forever after.
This is a broad and unjustified assertion of federal power. David Engdahl of Seattle University has called this the "'herpes' theory" of interstate commerce, whereby "some lingering federal power infects whatever has passed through the federal dominion." D. Engdahl, The Necessary and Proper Clause as an Intrinsic Restraint on Federal Lawmaking Power, 22 Harv. J.L. & Pub. Pol'y 107, 120 (1998). As Chief Justice Roberts wrote of the health insurance mandate, Congress has "power to regulate class[es] of activities, not classes of individuals, apart from any activity in which they are engaged." NFIB v. Sebelius, 132 S. Ct. 2566, 2590 (2012) (alteration in original) (citations and internal quotation marks omitted). Those who lawfully carry concealed handguns within the body of a state are not engaging in commerce across state lines, and Congress should not treat them as if they were.
By stretching the limits of the Commerce Clause, the current draft unnecessarily limits the bill's support among constitutional conservatives. (We believe that Rep. Amash, among others, has criticized prior versions of the bill on these grounds.) If Congress can confer a right to carry firearms that once crossed state lines, regardless of state law, then a future Congress could restrict the carrying of firearms that once crossed state lines, regardless of state law. Indeed, the federal government could even purport to regulate how Americans brush their teeth, so long as their toothbrushes had previously been shipped across state lines. (Or just the bristles, or the crude oil that was made into plastic, or . . . . ) In light of precedent, courts are unlikely to strike down every statute that claims this power. But that is no reason for Congress to enact more.
. . .
Congress has other powers that would be more appropriate. The Full Faith and Credit Clause empowers Congress to "prescribe * * * the Effect" of state acts, records, or judicial proceedings in other states. U.S. Const. art. IV, § 1. For instance, the Full Faith and Credit for Child Support Orders Act requires certain state child support laws to be given their full effect in every other state. See 28 U.S.C. § 1738B(h). Similarly, the Parental Kidnaping Prevention Act requires every state to recognize certain child custody judgments from other states, and it forbids them from exercising their ordinary jurisdiction over such disputes. See 28 U.S.C. § 1738A.
Congress has used this power only rarely, but soon after the Founding it often debated doing so. See generally S. Sachs, Full Faith and Credit in the Early Congress, 95 Va. L. Rev. 1201 (2009). For example, a bill in the Thirteenth Congress would have entitled the executor of a will or the administrator of an estate to exercise similar authority in other states where the decedent held property. H.R. 45, 13th Cong., 2d Sess., § 4 (1814). Another bill in the Fifteenth Congress would have made the authority of bail bondsmen in one state legally effective in every other state, so that bondsmen could recapture fugitives who had fled across state lines. H.R. 17, 15th Cong., 1st Sess. § 2 (1817). Despite the paucity of judicial precedent construing this clause, the legislative precedent portrays its scope as quite broad.
You can read the whole thing, which also suggests some other amendments, here.