A new battle in the debate over gun rights and restrictions bears one striking similarity to another major cultural battle recently fought over another cultural divide. It once again pits the concepts of federalism against those who would assert the consistent recognition of individual rights across the nation. And oddly, this battle puts many of the same combatants on the opposite side of the question.
This fight began in Virginia last week. Attorney General Mark Herring announced that he would unilaterally repeal agreements with 25 other states for reciprocal recognition of carry permits by February 1st, claiming that he found their standards for issuing carry permits too low. Herring argued that Virginia residents could apply for and receive carry permits in other states when they couldn’t qualify within their own state and therefore evade the restrictions imposed by Virginia law.
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The decision leaves permit holders in these 25 states without recourse to carry in Virginia, but perhaps more importantly to voters in the state, it will leave Virginians with few places they can carry guns. The only state on Virginia’s border where Herring will still recognize reciprocity is West Virginia, for instance. This creates a significant hardship for those who live near the state border and who routinely cross back and forth.
Governor Chris Christie issued a pardon in a similar case last week in which a Marine recruiter got charged with felony weapons violations in New Jersey three months ago for possessing an unloaded handgun and hollow-point ammunition, despite being licensed to carry in Massachusetts. Joshua Velez had forgotten he had the weapon in the car, which was discovered in a traffic stop for failing to signal a turn, and the police discovered it only because Velez disclosed it to them during the stop.
Herring has now placed responsible Virginia gun owners into these kinds of inadvertent traps by canceling reciprocity agreements with states in the region. That prompts a larger question: why are they needed in the first place? Article IV, Section 1 of the U.S. Constitution states, “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” The inclusion of that clause clearly intended to prevent these kind of legal traps for law-abiding citizens by forcing other states to recognize the licenses and permits of other states, and its placement in the original articles shows that this takes precedence over the 10th Amendment recognition of state sovereignty.
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Ironically, this was also one of the arguments used to oppose the Defense of Marriage Act (DOMA), signed into law by Bill Clinton. Congress in that case passed the law with the express purpose of voiding the Full Faith and Credit clause when it pertained to the definition of marriage, especially when it came to court judgments and state benefits. The Supreme Court used other constitutional arguments to strike down DOMA in its Windsor decision, and mooted the argument entirely when it demanded full national recognition of same-sex marriage in Obergefell. In earlier decisions such as Pacific Employers Insurance (1939) and Hyatt (2003 on tax rates), the court also ruled that states may have “some limitations” in recognizing other state’s laws – when those statutes utterly conflict with their own.
That, however, is not the case with carry permits. Virginia will continue to issue carry permits, just as these other states do. Herring claims that the processes used by other states do not meet the standards of Virginia, but that turns the Pacific Employers Insurance decision on its head. Each state that issues carry permits has settled on their own criteria for issuance, and those requirements remain in effect for the duration of the permit regardless of temporary travel.
Minnesota, for instance, requires eight hours of instruction and range qualification by a licensed instructor, as well as restrictions based on past legal history, but that wasn’t good enough for Herring – although it was good enough for Virginia previously. Should Minnesotans be forced to adhere to Virginia’s statutes on the off chance some may travel there? The Full Faith and Credit clause was written specifically to prevent this confusion and deliberate obfuscation.
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Furthermore, the ability to carry arms in self-defense is not an esoteric policy regarding insurance or tax rates. The Constitution guarantees the right to “keep and bear arms” in the Second Amendment. The Supreme Court has upheld it as an individual right in Heller, and as a right to carry firearms outside of the home in McDonald. While the court also recognized the authority of states in both instances to set reasonable standards on the exercise of those rights, the constitutional priority of the right for law-abiding citizens to arm themselves requires those restrictions to be rational and to keep from making compliance so onerous that it becomes impossible to exercise those rights.
Herring’s actions are a deliberate attempt to do exactly that – make the exercise of rights affirmed in Heller and McDonald so potentially costly to law-abiding citizens that they simply give up. After all, few can hope to get an immediate pardon like Velez did, especially when the state government in question is so explicitly hostile to this particular civil right.
The NRA has responded to Herring’s actions by pushing Congress to pass a bill that would require “total recognition” from states that issue carry permits. Virginia’s legislature could pass legislation that overrides Herring’s decision before its implementation on February 1st, and that strips the Attorney General of such authority in the future. Both efforts may be necessary in the short term, but the true solution to this issue is to demand that states abide by Article IV, Section 1 when it comes to the exercise of enumerated rights in the Constitution.
Alas, that will almost certainly require the courts to intervene on behalf of citizens who have already proven themselves sufficiently to exercise those rights where they already live.
