National Reciprocity Bill Further Nationalizes Gun Laws

by Ryan McMaken, Mises Institute

The GOP-controlled House of Representatives is set to further federalize gun laws and gun regulations.

They’re doing it, though, under the guise of what sounds like a harmless bill designed to guarantee property rights:

The House is poised to pass a bill that allows concealed carry permit holders from one state to legally carry their guns in any other state — legislation the National Rifle Association has called “their highest legislative priority” in 2017.

But the problem here is that what the House is doing is not reciprocity. Reciprocity, properly defined, is a matter of agreement among the states. It does not involve the federal government. The new bill seeks to further insert the federal government into gun laws by forcing reciprocity on all the states. We explored this important distinction here at mises.org in August:

This issue can be addressed from both a legal and Constitutional standpoint, and from a general philosophical decentralist view:

Suzanne Sherman at the Tenth Amendment Center has already weighed in against the idea on Constitutional grounds, based on two main arguments:

1. Reciprocity laws are compacts made among the states and are not imposed by the federal government.

2. The Bill of Rights Doesn’t apply to the states.

On the first matter, Sherman notes that the proposed legislation would impose reciprocity on the states. This, Sherman notes, is a departure from what we usually mean by reciprocity, which denotes compacts that two or more states have voluntarily entered into.

Sherman writes:

Many advocates of forced National Reciprocity point to the “Full Faith and Credit Clause” found in Article IV, Section 1 of the Constitution. Such application is likewise problematic because it deviates from the original intent of the clause, lifted directly from the Articles of Confederation without any change to its meaning. This clause, as ratified, simply ensured citizens in one state could own land or property in another with the full rights of a citizen of that state. It in no way implied that one state had to recognize the institutions or licensing of another state. Driver’s licenses are acceptable for passing through various states, but it is, like CCW licensing, by mutual assent of the states. In other words, there is no federal statute mandating that one state must honor another state’s driver’s licenses.

In other words, the sort of “reciprocity” imagined by the backers of nationwide forced reciprocity is a new kind of reciprocity that substitutes federal policy for decentralized state-level policy.

The enormous downside to this is that it federalizes what has long been recognized as largely the domain of state and local governments. Further federalizing gun policy may look like a fine idea right now, but as Sherman notes, it only takes a couple of new anti-gun appointments to the Supreme Court for the whole idea to blow up in the faces of pro-gun advocates. It’s far more prudent, Sherman contends, to work against any increase in federal involvement in gun policy.

Sherman is correct.

The second point is about the Bill of Rights. As Lew Rockwell points out,

[T]he purpose of the Bill of Rights was to state very clearly and plainly what the Federal Government may not do. That’s why they were attached to the Constitution. The states, under the influence of skeptics of the Constitution’s limits on the central power, insisted that the restrictions on the government be spelled out. The Bill of Rights did not provide a mandate for what the Federal Government may do. You can argue all you want about the 14th amendment and due process. But a reading that says it magically transforms the whole Bill of Rights to mean the exact opposite of its original intent is pure fantasy.

Of course, even if the Constitution explicitly gave the federal government the power to regulate guns, it would still be a bad idea to do so at the federal level. As is the case with all types of policy, the federal government is primarily the domain of millionaire politicians who are nearly impossible to influence — or even get a meeting with — unless one is extremely wealthy or has the backing of a large nationwide special interest group. It is unwise to grant those people even more power.

Moreover, if the federal government is going to make new federal laws in this matter, that means it must also enforce them. Will this be done through a new national bureaucracy? Or perhaps through the federal courts? Either way, the federal government will be more involved in crafting, regulating, and overseeing state policy. Republicans claim to be against this sort of thing.

Also, key to understanding the importance of decentralization is the fact that decentralization offers a multitude of choices between different regimes in the face of government restrictions and persecution. If only one huge government has been granted the power to protect rights, to where will one go when the government fails to do its prescribed task? On the other hand, when a wide variety of smaller governments are charged with protecting rights, the failure by one regime is not nearly as catastrophic since the offending regime can be far more easily avoided through emigration and boycott than can a large, centralized regime.

Thus, it might sound nice to put the federal government in charge of protecting gun rights, but the potential downside is immense given that federal policy can change easily, and then be imposed nationwide.

Ryan McMaken (@ryanmcmaken) is the editor of Mises Wire and The Austrian. Ryan has degrees in economics and political science from the University of Colorado, and was the economist for the Colorado Division of Housing from 2009 to 2014. He is the author of Commie Cowboys: The Bourgeoisie and the Nation-State in the Western Genre.

This post was originally published at Mises.org and is reposted here under a CreativeCommons, Non-Commericial 3.0 license.

Tags: Concealed Carry, Gun Rights, HR38, Incorporation Doctrine