Your Second Amendment Rights Don’t End At The State Line

Federal Right-To-Carry Reciprocity falls within Congress’ 14th Amendment powers to protect the Second Amendment and the right to travel.

One of the most important issues facing the new Congress will be legislation to protect the safety of interstate travelers so that a person who has a concealed-carry permit at home can lawfully carry in other states. Some people wonder if such federal legislation would violate the letter or spirit of states’ rights. In fact, national Right-to-Carry legislation is solidly within Congress’ 14th Amendment powers to protect the Second Amendment and the right to travel.

After the terrible destruction of the Civil War, it was recognized that reforms were needed to fix the conditions that had led to war. The 13th Amendment’s abolition of slavery was the first step, but much more was needed.

First Amendment rights were routinely denied in states that allowed slavery. Anti-slavery books or newspapers had been prohibited. Even books that made no moral argument about slavery, but simply pointed out its economic inefficiency, were outlawed. The free exercise of religion was infringed when ministers were forbidden to criticize slavery from the pulpit.

n 1865-66, the ex-Confederate state governments showed every intention of continuing to abuse civil rights. As the U.S. Supreme Court explained in McDonald v. Chicago (2010), these abuses included new laws prohibiting the freedmen from possessing arms, or requiring them to obtain special licenses. Likewise, their rights to assemble, to work or not work as they chose, and to travel as they wished were banned or constricted.

Congress understood—and the American people agreed—that constitutional reform was necessary so that the federal government would have power to act against state violations of national civil rights.

In 1866, Congress passed the 14th Amendment, and it was ratified by the states in 1868. Section 1 of the 14th Amendment bars state or local government infringement of civil rights, such as those enumerated in the Bill of Rights. McDonald, requiring state and local obedience to the Second Amendment, was part of a long line of cases enforcing Section 1.

While courts can and do enforce the 14th Amendment by holding laws unconstitutional, Congress was given its own, broader enforcement power. Section 5 states: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” Section 5 is a solid foundation for congressional legislation to protect Second Amendment-protected rights, including the right to carry.

National reciprocity legislation easily fits the Section 5 standards. It is almost perfectly “congruent and proportional” to the problem of interstate travelers being denied their Second Amendment-protected right to bear arms.

In national reciprocity legislation, there is also another important right that is involved—the right to interstate travel. This right is long-established in our Constitution, and the 14th Amendment was enacted with specific intent to give Congress power to protect the right.

The 14th Amendment reads, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” While there is debate about the full scope of these “privileges or immunities,” everyone has always agreed that they include the rights that were created by the formation of a national government. Examples include protection on the high seas, or the right to seek the aid of a U.S. consulate in a foreign nation. These rights are not inherent human rights from natural law; rather, they exist because an American national government was created.

The right to interstate travel is the same. If the 50 states were instead 50 separate nations, there would be no right to travel from Pennsylvania to Vermont via New York. Because we are all citizens of one nation, however, there is a right to interstate travel.

Under our Constitution, the general rule is that a U.S. citizen has the “right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State.” The Constitution bars “discrimination against citizens of other States where there is no substantial reason for the discrimination beyond the mere fact that they are citizens of other States” [Sáenz v. Roe, 526 U.S. 489 (1999)].

What does all this mean for interstate reciprocity? A few states—including California, New York and New Jersey—refuse to enter into reciprocity agreements with any of their sister states, and they have no provision allowing a non-resident to apply for a carry permit.

These states impose “qualitative” impediments on interstate travel. They discriminate against travelers based on “the mere fact that they are citizens of other States.” They deny the “right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State.”

As with Hoar, the governments of these states are affirmatively interfering with visitors’ right to travel in safety and security.

The need to be prepared for self-defense is especially acute when one is traveling in a different state. At home, one will be familiar with the relative safety of different parts of town at different times of the day. A visitor will not have such familiarity, and could more easily end up in a dangerous, high-crime area.

For the traveler who has been disarmed by the host state, the only options are to stay shut up in one’s hotel room at night for fear of making a wrong turn down a city block, or to spend all one’s time solely within the confines of a small tourist zone that has a heavy police presence.

Yet to be forced to do so is to be deprived of the constitutional right to travel freely and safely throughout the entire U.S. Ensuring that interstate travelers can exercise their Second Amendment-protected right of self-defense is an appropriate subject for congressional action.

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