Guns: State Preemption

[Andy9o8 0]

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While I see your point, I disagree - a concealed carry license would be a public record of the state issuing it, would it not? Think driver's licenses - I don't have to get a driver's license for each state I drive through if I go to see where I spent my childhood in Wisconsin.

A number of states already have reciprocal agreements to honor concealed carry licenses - this would just make that agreement a Federal one and not a state issue.

I understand your point, but in the current case of reciprocity of driver's licenses, I'm pretty sure (too early in the morning to look it up right now) that that's not at the Federal level; rather, that's either because individual states are voluntary members of interstate compacts (sort of like "treaties" between/among states), or because individual states have their own state laws granting reciprocity.

So unless the Federal govt were to mandate universal reciprocity of gun licenses - and that would be subject to a federal court test framed as Nightingale & I were analyzing above - such reciprocity would basically have to be the result of each of the 50 (51, whatever) jurisdictions individually signing on to it. Not that it's impossible to herd 50 cats, but it's what would have to be done.

[birdlike 0]

Wouldn't it be the federal full faith and credit clause of the Constitution that prevents states from refusing to recognize driver's licenses from states they don't like?

Florida lets kids drive (full licenses) at 16. NY doesn't let them have a full license until 17 with driver's ed, or 18 without it. But NY doesn't refuse a 16-year-old from Florida with a Florida license the right to drive in NY.

Spirits fly on dangerous missions
Imaginations on fire

[Andy9o8 0]

(Off to work - will try to answer later..)

[mnealtx 0]

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While I see your point, I disagree - a concealed carry license would be a public record of the state issuing it, would it not? Think driver's licenses - I don't have to get a driver's license for each state I drive through if I go to see where I spent my childhood in Wisconsin.

A number of states already have reciprocal agreements to honor concealed carry licenses - this would just make that agreement a Federal one and not a state issue.

I understand your point, but in the current case of reciprocity of driver's licenses, I'm pretty sure (too early in the morning to look it up right now) that that's not at the Federal level; rather, that's either because individual states are voluntary members of interstate compacts (sort of like "treaties" between/among states), or because individual states have their own state laws granting reciprocity.

So unless the Federal govt were to mandate universal reciprocity of gun licenses - and that would be subject to a federal court test framed as Nightingale & I were analyzing above - such reciprocity would basically have to be the result of each of the 50 (51, whatever) jurisdictions individually signing on to it. Not that it's impossible to herd 50 cats, but it's what would have to be done.

If you *could* look that up and post, I would appreciate it. I wouldn't have the slightest clue where to start looking for something like that. I always assumed the driver's license reciprocity came from Art. 4.

Mike
I love you, Shannon and Jim.
POPS 9708 , SCR 14706

[Andy9o8 0]

OK, here's what I've come up with so far (within the confines of a working weekday), but this is still very much a work-in-progress:


PREEMPTION

Not a clear black & white answer, but the general principle is that if the superior jurisdiction enacts a law governing a particular subject matter, and the inferior jurisdiction also has a law governing the same subject matter, the superior jurisdiction's law reigns supreme over the inferior jurisdiction's law, to the extent the inferior jurisdiction's law conflicts with the superior jurisdiction's law. (Sorry for the necessary verbosity.)

But this preemption, whether federal-to-state, or intrastate, is still somewhat of a grey area, and has resulted in plenty of litigation for the very reason that lawyers, judges and legislatures frequently disagree among themselves on how preemption principles should be applied. For example, there exist federal anti-discrimination laws. But most (if not all of the states) also have their own state anti-discrimination laws. Preemption does not prohibit states' anti-discrimination laws from being even stricter than federal law; but if a state were to pass a law that would have the net effect of providing less protection to a discrimination victim than is provided by federal law, that portion of the state law would be invalid.

Here's one scholarly article dealing with the tensions naturally resulting from intrastate preemption:

http://www.bu.edu/law/central/jd/organizations/journals/bulr/volume87n5/documents/DILLER_v2.pdf

same article in html format:
http://74.125.45.104/search?q=cache:bQSS_Q0jfmkJ:www.bu.edu/law/central/jd/organizations/journals/bulr/volume87n5/documents/DILLER_v2.pdf+principles+%22preemption%22+intrastate+municipal&hl=en&ct=clnk&cd=3&gl=us

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RECIPROCITY


As best as I can tell from a quick survey, states honor each others' driver's licenses, vehicle registrations, etc. as the result either of individual state law or voluntary participation in interstate compacts. That's exactly the case with respect, for example, to reciprocity (or lack thereof) of various states' CCW laws. If there is a federal law or regulation governing interstate reciprocity of drivers' licenses, my quick search hasn't found it yet.

As to the principle full faith and credit governing interstate reciprocity of the states' gun laws, that has not happened, and all the state and federal caselaw of which I'm aware does not indicate that that will be applied soon, at least not under an "interstate commerce" rationale. (See discussion above with Nightingale.) I really don't know whether there have been any court cases analyzing the issue of whether states must reciprocally honor each others' driver's licenses. I suppose that if, for example, Oregon passed a law declaring that California drivers' licenses are deemed invalid, even temporarily, in Oregon, a challenge could be mounted to that law on the grounds that it unduly interferes with interstate commerce.

Lots of grey areas. Lots of work for lawyers. Oo-rah!

[mnealtx 0]

Andy - thanks for the information. As I said above, I had always figured that the driver's license issue was due to Art. 4 - it's surprising to see that it's not that way.

Mike
I love you, Shannon and Jim.
POPS 9708 , SCR 14706

[JohnRich 4]

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Guns should only have been a matter for the states if there was no 2nd amendment and we had to rely on the 10th which leaves everything not specified to the states and people.

If gun regulation was unique among the bill of rights as something the states could regulate, the second amendment would have another phrase "except that the several states may pass laws as they see fit"

The justification for federal gun control laws now is "interstate commerce". That's their foot in the door to grab that regulation. Except for the constitution granting them that control, they have no other justification.

The problem is, under the guise of "interstate commerce", they regulate everything. As a Texas resident, I can buy a gun made in the state of Texas, which did not travel across any state lines. Technically, therefore, I shouldn't have to comply with federal laws to purchase that gun - only state laws. But nevertheless, that would be illegal.

Another example is the federal ban on guns near school zones. What business is that of theirs? The schools are now owned by the feds - they're state schools. The property belongs to the state. Nothing about this situation has anything to do with the Feds or interstate commerce. Yet they did it anyway. It took years to get it overturned, but the lack of authority didn't stop them from enacting it in the first place.

Such things are matters for the states only, and should be reserved for them.

The Feds have construed "interstate commerce" to mean any darned thing they want, in order to grab control.

P.S.

And thanks everyone, for an intelligent gun thread, that hasn't been hijacked and turned into the usual BS.

[JohnRich 4]

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The founding of this nation, and the US Constitution, are predicated on the principle of each state being able to enact its own laws, as long as they are not preempted by federal laws. And that means that states have laws that are inconsistent with the laws of other states all the time. But if one were to take your principl to its logical extreme, no state would be able to have any state law that was inconsistent with the law of any other state.

The other side of that coin is this.

The constitution requires that each state recognize the official acts of all the other states. If you get a driver's license in Texas, all the other states accept that driver's license.

When I wanted to get married at age 19, I was too young in my home state of Virginia - I had to be age 21. So I eloped to North Carolina where both mates had to be only 18 to marry. And then when I got back home to Virginia, Virginia now recognized my marriage as legal, even though I couldn't do it in that state in the first place! Why? Because VA had to recognize the official acts of NC.

So if states recognize driver's licenses and marriage licenses from other states as official acts under the constitution, then why don't they also recognize concealed handgun licenses?

Because when it comes to "guns", things are always different, somehow...

[Andy9o8 0]

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> The justification for federal gun control laws now is "interstate commerce". That's their foot in the door to grab that regulation.

As Nightingale mentioned up-thread, when the Feds tried that in Lopez, the SCOTUS shot the Feds down.

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>> Except for the constitution granting them that control, they have no other justification.

And I've predicted that, having been burned in Lopez trying to use interstate commerce as a rationale, they'll probe the perimeter by trying other tacks - such as, for example, homeland security - and if that fails, they'll try something else, etc.

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>>The constitution requires that each state recognize the official acts of all the other states. If you get a driver's license in Texas, all the other states accept that driver's license.

>>>When I wanted to get married at age 19, I was too young in my home state of Virginia - I had to be age 21. So I eloped to North Carolina where both mates had to be only 18 to marry. And then when I got back home to Virginia, Virginia now recognized my marriage as legal, even though I couldn't do it in that state in the first place! Why? Because VA had to recognize the official acts of NC.

>> So if states recognize driver's licenses and marriage licenses from other states as official acts under the constitution, then why don't they also recognize concealed handgun licenses?

Diver's licenses and marriages are not in the same category.

A license is the granting of the privilege to perform a given act: to drive, to practice medicine, to manufacture or vend pharmaceuticals, whatever. States have the right to regulate, through licensing, the performance of certain acts within their own borders. And, under the states' right principles of Federalism, each state may enact licensing laws that differ from those of other states. That means, quite simply, that it's OK for State A to choose to grant licenses to perform a certain act within its borders even though State B opts not to grant such licenses. It also means that State B, which has chosen not to license certain conduct within its borders, cannot be forced, even by Full Faith and Credit, to carve out an exception to that for people licensed in State A. Their house, their rules.

Re: reciprocity of driver's licenses, I've seen scholarly writings that fall on both sides of the issue: some writers say reciprocity is granted due to the Full Faith & Credit Clause, while others say No, it's purely a matter of comity that all 50 states, D.C., etc. have voluntarily chosen to accord each other's respective licensees. So far, I haven't found a Federal law, regulation or Federal Court case mandating that such interstate reciprocity must be given, under any rationale.

I do know a number of examples where State A, which has a minimum age of, say, 17 to get a driver's license, will not permit anyone under 17 to drive there, even though the 15 or 16-yar old drivers are lawfully licensed in their home states. That's a perfect example of State B not being required to carve out an exception to its licensing scheme for license-holders of State A.

This principle regarding licensing, then, applies to all licenses: each state makes its own rules to be applied within its own state


But a marriage - i.e., the marriage itself, not the permission to conduct the ceremony - is not the performance of an act, it is the existence of a legal status (despite the fact that marriage "licenses" are issued in order to GET married). Same holds true for being divorced, or of being adopted - each of those is a status - a legal "state of being", if you will - and not an act. So when Virginia recognized your NC marriage, John, it wasn't recognizing the marriage license that allowed the cermony to occur, it was recognizing the legal status - the very existence - of the marriage itself. That's why people used to go to Nevada to get a divorce - because Nevada's liberal divorce laws allowed quickie divorces, legal under Nevada law; and once the divorce was legal in Nevada, it had to be given full faith & credit by all other US jurisdictions.

But just as New Jersey is not required to recognize the driver's license of a 16 year old from another state, Connecticut is not required to recognize a Texas CCW permit. Now, even though Connecticut chooses not to grant CCW reciprocity to other states' licensees, it does happen that a few states nevertheless do grant reciprocity to Connecticut gun licensees. However, they are not required to do so, they have simply chosen to do so voluntarily.

[billvon 2,397]

>So if states recognize driver's licenses and marriage licenses from other
>states as official acts under the constitution. . .

They don't. A commercial driver's license in one state will not necessarily transfer to another. And a legal same-sex marriage in California or Massachusetts will not be recognized in most other states.

[mnealtx 0]

That clears up a lot for me on the issue of the license reciprocity - thanks, Andy.

Mike
I love you, Shannon and Jim.
POPS 9708 , SCR 14706

[JohnRich 4]

Update:

Court hears challenge to Philadelphia gun laws

A lawyer for the National Rifle Association told a state appeals court Wednesday that the city has no authority to implement an assault weapons ban because such a measure deals with constitutional rights.

The NRA is challenging a series of gun control measures that City Council passed in an effort to combat gun violence. Mayor Michael Nutter signed the bills even though the Pennsylvania Supreme Court has previously upheld the state's exclusive right to enact gun laws.

Lawyer Scott Shields, who represents the NRA, said the city simply isn't allowed to regulate firearms...

Source: Philly.com