Lawyers, Guns, and Federalists

The provision pushed by our own Senator John Thune to expand gun rights was defeated in the Senate. The provision was inserted into a military authorization. It would have required each state to recognize valid gun permits issued to citizens by other states. From the New York Times:

Every state except Illinois and Wisconsin allows concealed weapons, but the statutes concerning who is eligible to carry one vary widely by state. The amendment defeated Wednesday would have allowed gun owners with permits from states with looser restrictions to transport their guns to states with tougher restrictions; it would not have allowed the use of concealed weapons in Illinois and Wisconsin.

The provision gathered 58 votes, two short of the 60 needed for passage. Two Republicans (Richard Lugar and George V. Voinovich) joined 35 Democrats and 2 Independents to block it. It was the first significant defeat for gun rights advocates after a string of victories.

The measure raises interesting questions concerning American Federalism. Each state can make its own laws, but the Full Faith and Credit clause (Art. 4, Sec. 1 of the Constitution) states this, from ePublius:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.

This is one of the unifying clauses in the Constitution, intended to keep a state from discriminating against the legal rights of persons from other states. There is an argument, separate from issues of gun control, for the gun rights measure. When I drive across state lines, my driver's license will be recognized as valid by the state cop on the other side.

But a too broad interpretation of the Full Faith and Credit clause would clearly undermine the right of states to manage their own internal affairs. This reminds me of the slavery issue in pre-Civil War America. If Free States had been forced to recognize the property rights of slave holders who crossed their borders with their chattel, they would cease to be free states. The possibility of such an interpretation, a super-Dred Scott decision, was, I believe, a significant if silent cause of the national crisis in 1860.

Despite my admiration for Senator Thune, I think he was wrong on this one. The Supreme Court has recognized a constitutional right to possess firearms for self-defense, but it seems to me that states should be allowed to make their own rules for carrying arms about. It has been observed that Republicans are usually defenders of state's rights, but in this case they seem to back federal intrusion into state prerogatives. Again this reminds me of the slavery issue in antebellum America. Southerners were all for state's rights except when it came to the fugitive slave clause. On that issue, they wanted Federal Courts to overrule Free State protections for escaped slaves.

I think each state should be free, within reason, to determine who can carry a concealed weapon about. But I note that this has implications for the Gay Marriage issue. Should a state that does not recognize same sex marriages be required to recognize such a marriage contracted in another state? Maybe state's rights conservatives are contradicting themselves when the back the gun rights measure. But those who voted against the bill will face the same charge if they insist that same sex marriages in one state have to be recognized as valid in other states.

Comments

[sweets]

The provision was inserted into military authorization.

[KB]

Thanks, sweets, but I believe I noted that.

[Travis Dahle]

Interesting post Dr. Blanchard. I do appreciate the fact that you don't just blindly support gun rights like a lot of conservative blogs out there. I like your point that while the G.O.P. is usually on the side of state's rights, they wanted the feds to intrude on this issue.

Thank you for being an intelligent commentator on this issue.

[Erik]

KB:
Thanks so much for the post. Defining state and federal rights remains a vexing problem for our democracy.
Erik

[KB]

Erik: Thank you for the comment. Federalism can indeed be a vexing problem, but more often than not it comes down to a judgment call. I prefer the call to be made by the legislative branches whenever possible, and that's how this one got handled.

Travis: how nice to hear from you. And thanks for the kind words. I am glad you liked my point about Republicans switching sides. Do you have enjoy it as much when it happens on the other side? Consider the medical marijuana issue when Dubya was still in office. Suddenly all the Democrats were sounding like John Calhoun.

[A.I.]

OK, I'll wade in where it's likely only fools dare tread (and when I'm already mixing metaphors, it doesn't bode well).

So far, slavery, concealed weapons, same-sex marriage and medical marijuana have been discussed here relative to state's rights. There are reasons the first two might be dealt with in ways different than the latter two. Both slavery and concealed weapons involve either individuals or groups potentially or actually inflicting physical harm on others while the latter two are individual choices that arguably have little or no affect on others.

Should a state have the right to allow one human being to be the chattel of another? Obviously he who is chattel is being harmed by he who thinks skin color (in the case of U.S. slavery) distinguishes whether or not Constitutional human rights apply. Equally obvious is the fact that skin color does not determine whether or not a being is human so no, states do not have that right.

Should a state have the right to protect it citizens from unvetted gun totters from other states? It's reasonable to assume a responsible person who is trained in gun handling, has no criminal background, etc. poses less risk to others when allowed to carry a concealed weapon than some yahoo that thinks loud noises are neat and enjoys getting into bar fights. Some states go to some lengths to insure their own Mr. Yahoos can not carry concealed weapons while other states do not. It is the duty of states to protect there citizens and thus their right to banish out-of-state gun totters that are more likely than there own gun totters to do harm.

Should states have the right to allow use of medical marijuana? If any physical or mental harm is involved in using the drug, it affects only the individual and it would seem states should have the right to allow such use. Of course there is much more to the question in that production and distribution mechanisms might be "corrupted" such that some amount of marijuana might find its way into non-medicinal use--oh my! So unless states can establish mechanisms that guarantee use is for its intended purpose, it would seem the federal government should have the right to intercede. That does not mean establishing a legal scheme that allows both recreational and medical use of marijuana would not be better advised at all levels of government.

Should states be forced to recognize same-sex marriage certifications from other states? Simply put, yes. They recognize heterosexual marriage and to not recognize same-sex marriages can not be justified by a state's right to protect its citizens. There is no demonstrable physical harm a same-sex couple can inflict on the citizens of a state by virtue of the nature of their relationship. They may offend the sensibilities of some, but as you have said often KB, we don't have a right not to be offended and thus a state has no right to protect us from being offended.

There, I waded, I tread and I dare say I went out on a limb. Not only that, I began sawing between myself and the tree--or perhaps I cut completely through.

[P. Chirry]

States should not have to recognize other states' gay marriages.
Just because one state gives special privileges to a group of people doesn't mean that other states should have to.
That goes for gay marriage, gun control, medical marijuana, what have you.

[A.I.]

Just wondering P. Chirry, is marriage a special privilege for homosexual people but not for heterosexual people?

[P. Chirry]

Nobody has a 'right' to marriage, if that is what you are asking. Governments recognize marriages and give them tax breaks, etc. not to recognize a right but as a means of incentivizing them, and thereby "promoting the general Welfare."

It is beneficial to incentivize heterosexual marriage in this way because it hitches up single straight men, who would otherwise go around impregnating females, causing single motherhood which leads a host of social problems: poverty, drug use, crime, etc.

Incentivizing homosexual marriage does not "promote the general Welfare" in this way, so there is no reason for a government to do it.

[KB]

A.I.: Another good comment. But it seems to me that you miss the point of the Federalism question. It is not whether Gay Marriage, or Slavery, or right to carry laws, or medical marijuana hurt people or not. It's who gets to decide for a state what rules stand within its borders.

Were marijuana use to become more widespread, that might have very unfortunate effects on American society as a whole. Having some memories of youthful experience to draw on, I think so. I am not opposed to the medical use of marijuana, and I think that regulations should allow it. But the legal flow of marijuana, especially in state-sanctioned programs, makes it easier for those who have no medical need to obtain it and may frustrate federal efforts to control the traffic. I am inclined to think this ought to be federal policy.

By contrast, people who have valid weapons licenses very rarely commit crimes with their weapons. But as I said, I see no reasons here not to leave the question of qualifications in the hands of the states.

It is all too easy to side now with Federal control, now with state control, depending on which side of the issue we like.

[A.I.]

Still curious P. Chirry, could you cite some instances in the formulation of marriage law where legislators cited the principles you mention?

[A.I.]

KB, my point was that "who gets to decide for a state" might logically be based on potential for real harm. And it seems we agree on two of the four examples cited--and for pretty much the same reasons.

[KB]

AI: right, and my point was that someone still has to decide what is potentially harmful. The standard in American Federalism has not been potential harm, but such questions as interstate commerce and the movement of peoples between states.