The Concealed Carry Reciprocity Act of 2017 (H.R. 38) would provide relief for America’s 14.5 million permit holders who want to be certain of their carry rights across state lines. Their need is acute: The number of concealed carry permit holders has tripled since Congress first attempted to pass a reciprocity bill in 2008. Donald Trump, our permit-holder-in-chief, has announced his support for an interstate reciprocity law. But is the proposed statute constitutional? Reciprocity for nearly all types of licenses—even driver’s licenses—depends on voluntary arrangements among states, a practice that comports with the Tenth Amendment. Can the federal government compel reciprocity for concealed carry permits?
To find an answer, we must look in an unlikely place: the Constitution’s Commerce Clause. The clause empowers Congress to regulate interstate commerce, but since the 1930s, legislators have used it as a pretext to regulate—well, almost anything you can imagine. Worse yet, the U.S. Supreme Court, under the flag of loose constructionism, has largely upheld these laws, creating increasingly Orwellian definitions of both “interstate” and “commerce.” In 1942, for example, the Court ruled that under the Commerce Clause, Congress may regulate how much wheat a farmer is allowed to grow on his own farm, even if his produce never leaves the state (see Wickard v. Filburn). It only got worse from there.
After decades of dissipating the original meaning of the Commerce Clause, the U.S. Supreme Court went for broke in Scarborough v. United States. Scarborough held that there need only be a minor connection between firearms and interstate commerce—such as guns having once been shipped across state lines from the factory—for the firearms to be regulated forever afterward under the Commerce Clause. In the wake of Scarborough, several legal scholars ridiculed the theory that “federal power forever infects anything that contacts interstate commerce” (as law professor David Engdahl phrased it). Nevertheless, Scarborough’s precedent today offers genuine constitutional pedigree to concealed carry interstate reciprocity. This fact was not lost on the framers of the Concealed Carry Reciprocity Act of 2017, who refer to all handguns as having been “shipped or transported in interstate or foreign commerce”; that language creates a jurisdictional hook that guarantees the statute will pass constitutional muster under the Commerce Clause.
Let this be a lesson to gun prohibitionists and living constitutionalists (mostly the same crowd): Given enough time, loose constructionism produces ironic and unintended consequences. Scarborough, a spent shell in the war on original meaning, will become a nuclear bomb in any judicial review of reciprocity under the Commerce Clause.