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Analysis: Concealed Carry Act steps over states’ borders, rights

Concealed Carry

The concealed carry bill passed by the House of Representatives on Wednesday would be a massive overhaul of America’s gun laws. It’s being sold as “let people travel with their guns” but it does much, much more.

Proponents say the bill is necessary to protect people like Shaneen Allen, a woman arrested for inadvertently violating New Jersey guns laws, which didn’t recognize her Pennsylvania carry permit.

Carrying guns across state lines can be treacherous to gun owners, as laws are inconsistent. With a growing number of gun owners carrying, lawmakers should be thinking about how to solve that problem.

While easing interstate carrying is a reasonable goal, the Concealed Carry Reciprocity Act is an incredibly poor, overbroad way to achieve it. And it is also likely unconstitutional.

The Concealed Carry Reciprocity Act works by requiring states to recognize concealed carry permits issued by other states. Sounds pretty harmless, like drivers licenses. But the devil is in the details.

Unlike drivers licenses, some of the most populous states have only a relatively small number of concealed carry permit holders: New York, Massachusetts, California, New Jersey, Maryland, and Hawaii among them.

In Los Angeles County, with 10 million people, only a few hundred ordinary civilians have concealed carry permits, awarded only to people who can show a special need to carry. Some argue the restrictive, may-issue permitting used in places like L.A. is unconstitutional. Courts have generally upheld so far but, it has not been uniform. The Supreme Court has yet to weigh in.

The Concealed Carry Act requires states like California to recognize permits from Virginia. But you don’t have to be resident to get a Virginia permit. So California residents can apply online to Virginia—and carry in California.

Anyone in Los Angeles, for example, could get a permit online from Virginia without ever stepping foot in that state. And that would enable anyone to carry a concealed gun in Los Angeles every day.

The numbers of guns on the streets of New York, Los Angeles, Boston, San Francisco, Trenton, Baltimore, and Honolulu will skyrocket. In Los Angeles County, it’s projected to go from fewer than 500 to 400,000. In New York City, which today has very few legal guns carried on the streets, approximately 400,000 will be allowed if the Concealed Carry Act becomes law.

(The numbers are projected based on the percentage of the population with carry permits in states that already allow them. There’s a range, and I use the lower end of the range for these states.)

The Concealed Carry Act would effectively overturn the current concealed carry laws in 7 states. But the impact will be far broader, and it will be felt in a lot of other states too.

Many states, even red ones, prohibit certain categories of domestic abusers from possessing guns. Now an abuser will be able to apply in a state that doesn’t bar him or her—and they’ll be able to carry at home. Even if the abuser was prohibited from having a gun, the Concealed Carry Act says no state law can prevent him from “possessing or carrying” a handgun if he has out-of-state permit.

The Concealed Carry Act would also effectively overturn state laws barring certain dangerous people from having guns. If any other state thinks it’s okay, that state wins.

The law is also an assault on federalism—even though its supporters are often the most ardent proponents of states rights. States would no longer have the longstanding authority—dating back to the Founding era—to determine who is eligible to carry a gun within their own borders. Some other state would.

Given recent moves such as permitless carry, there’s likely to be a “race to the bottom” — states competing to attract applicants by offering the loosest, easiest permitting laws.

The Concealed Carry Act is also likely unconstitutional. Congress has only limited powers, and the Supreme Court expressly held it had no right to regulate carrying guns on public streets. In US v. Lopez, the Court struck down an early federal gun-free school zone law because Congress did not have power to legislate gun carrying without connection to interstate commerce.

The act has language seeking to work around that ruling, limited to possessing or carrying a handgun that traveled in interstate commerce. But it’s a clear pretext (as nearly all guns do so).

Whether that pretextual hook will be enough for the courts, we will have to see, but I think it unlikely given the broad inroads made on a traditional area of state authority.

The Concealed Carry Reciprocity Act is far more than just protecting the Shaneen Allens caught up in conflicting gun laws. It will completely reorder Americas gun laws.

This post originally appeared as a Twitter thread on Wednesday. It has been reprinted with permission.

Adam Winkler Adam Winkler is a professor at UCLA School of Law, where he specializes in American constitutional law. He is the author of two books, "Gunfight: The Battle over the Right to Bear Arms in America," which was published in 2011, and "We the Corporations: How American Businesses Won Their Civil Rights," which will be released in February 2018.