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Constitution Check: Can Congress override state and local gun control laws?

April 25, 2013 by Lyle Denniston


Houston_Gun_Show_at_the_George_R._Brown_Convention_CenterLyle Denniston looks at the challenges of passing a federal law that would guarantee the right of someone to carry a concealed gun as they travel between states.

The statements at issue:

“My amendment ... is designed to protect the fundamental Second Amendment rights of American citizens who are traveling or temporarily away from home while they hold a concealed handgun license. ... Our amendment would allow persons with concealed handgun permits be allowed to carry those weapons as they travel between jurisdictions and avoid any sort of prosecution. This does not create a national standard.”

– Senator John Cornyn, Texas Republican, in remarks on the Senate floor on April 17, describing Amendment No. 719 to the proposed gun control bill then under debate.

“Amendment No. 719 would create a public safety crisis by forcing nearly every state to recognize the concealed carry permits issued by other states, even if the permit holder could not qualify for a permit in the state to which he is traveling. ... In other words, states with the weakest conceal carry permitting standards will set the national standard regardless of existing state laws.”

– Senator Dianne Feinstein, California Democrat, in remarks on the Senate floor on the same day, discussing the Cornyn proposal.

We checked the Constitution, and…

One of the most popular proposals that came closest to getting approved by the U.S. Senate last week was titled the “Constitutional Concealed Carry Act”--the amendment with Senator Cornyn as the lead sponsor. But among the amendments the Senate considered, that one might have failed a constitutional test in court.

If Senator Cornyn’s amendment had gained just three more votes, it would have been approved. It did attract 57 votes, more than a majority, but the rules in effect at the time required 60. Only one other amendment, to stop criminal trafficking in guns, was slightly more popular among the rejected amendments--with 58 votes.

For some years, not just recently, gun rights advocates have wanted assurances that they could have their guns with them when they traveled. They gained a right to travel with their guns under a 1986 law, the Firearms Owners Protection Act, but that right only extended to places where carrying the gun would have been legal anyway.

There has always been some doubt about how wide that freedom was.  The National Rifle Association has noted on its website that “many states and localities have laws governing the transportation of firearms,” and it advised travelers to “be aware of these laws and comply with legal requirements in each jurisdiction.”

Related Constitution Checks

Constitution Check: Does the Second Amendment need to be amended? Constitution Check: Can a local government order every family in town to have a gun?

When U.S. senators were putting together proposed amendments for the new debate on gun laws this month, a number embraced the proposal that Senator Cornyn sponsored. The purpose of that appeared clearly to preempt--that is, override--any state or local laws that imposed significant restrictions on the right to carry a gun into that state or into any of its cities.

This was called a “reciprocity” proposal, because the proposal provided that an individual who had a license in his or her home state to carry a concealed gun was guaranteed a right to do so only in any state that also granted licenses. But the laws of various states vary a good deal on just to whom and when a license will be issued to carry a concealed gun. So, if a state government--or a local government--had a stricter law than the one in a traveler’s home state, that tighter law would narrow the right to carry--unless, of course, a federal law trumped it.

About Constitution Check

  • In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

As debated in the Senate, the Cornyn proposal specified that the right it was assuring would exist “notwithstanding the law of any state or political subdivision thereof to the contrary.” In non-technical terms, what that meant was that if a state or local law was more restrictive than the traveler’s home state on the right to carry a concealed gun, the limiting law had to yield.

When sponsors of the amendment described it, they stressed that it would not set a national standard. When opponents described it, they stressed that it would make the most permissive law on carrying a gun apply throughout the nation.

The Cornyn proposal was based upon Congress’s authority under the Constitution’s Commerce Clause, allowing Congress to pass laws to regulate business that crosses state lines. The amendment would allow the cross-country movement only of guns that had been purchased in “interstate commerce.” That, though, would encompass virtually all guns, since few remain in the state where they were manufactured.

But in a 1995 Supreme Court decision, striking down the federal Gun-Free School Zones Act, the justices curtailed Congress’ power to use the Commerce Clause as a basis for overriding local control on guns near schools. That decision, in U.S. v. Lopez, was a major rebuff to Congress’ authority to deal with gun possession at the local community level.

If the Cornyn proposal were ever to become a federal law, it almost certainly would be challenged as beyond Congress’ Commerce Clause power, because it would preempt the broad power that state governments--and their subdivisions--have to pass laws to protect public safety. Such a proposal also very likely would have been challenged as an interference with the power of states under the 10th Amendment to exercise dominant control over public safety matters.

Such challenges probably would have been met by an argument that, because the Second Amendment now protects an individual right to have a gun, Congress has authority to pass laws to protect that right.  But there is no language of the Second Amendment (unlike that in some other amendments) that gives Congress explicit power to enforce its terms, so Congress probably could only use its Commerce Clause powers to justify such a measure. That would seem to make it quite vulnerable, constitutionally.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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