A ROAD TRIP WITH A HANDGUN: The Case For Universal State Concealed Handgun Carry Reciprocity
PART FOUR: THE CONNECTICUT FIREARM APPLICATION PROCEDURE FOR ACQUIRING AN UNRESTRICTED CONCEALED HANDGUN CARRY LICENSE
THE CIRCUITOUS, TORTUOUS ROUTE TO OBTAINING MULTIPLE UNRESTRICTED CONCEALED HANDGUN LICENSES AS EXPERIENCED BY OUR INTREPID CITIZEN, MR. WRIGHT.
OVERVIEW OF NATIONAL CONCEALED HANDGUN CARRY RECIPROCITY IN THE CONTEXT OF COUNFOUNDINGLY DIFFICULT AND WASTEFUL TIME AND MONEY ONE MUST SPEND ACQUIRING MULTIPLE CONCEALED CARRY HANDGUN LICENSES FROM MULTIPLE STATE AND LOCAL JURISDICTIONS AS ONE SEEKS NOTHING MORE THAN TO EXERCISE ONE’S NATURAL AND GUARANTEED RIGHT TO KEEP AND BEAR ARMS FOR SELF-DEFENSE, AS THE FOUNDERS OF OUR REPUBLIC INTENDED BOTH FOR THEM AND FOR US.
In this section of our “ROAD TRIP” series of articles we lay out the necessity of National concealed handgun carry reciprocity legislation. National concealed handgun carry reciprocity legislation would dramatically reduce the time, energy, and cost factors involved in obtaining handgun licenses from multiple jurisdictions. We follow the experience of one American citizen as he deals with the complexity of applying for and acquiring multiple handgun licenses.
For over two decades Mr. Wright has spent substantial time and exorbitant suns of money securing concealed handgun carry licenses from multiple jurisdictions. Most of the requirements are duplicative. He continues to spend time and money, renewing those licenses as required in each jurisdiction. The Arbalest Quarrel has laid out in detail the intricacies and difficulties in obtaining CCW handgun licenses. We have discussed Mr. Wright’s acquisition of handgun licenses in New York and in Maine.
LICENSING OF FIREARMS AND STATE PREEMPTION
Unlike many, if not most States, the New York State Legislature hasn’t preempted the field of firearms laws. That means cities and counties within New York may enact their own firearms’ codes and ordinances, consistent with State Statute—so long as the city and county codes and ordinances are not less stringent than State law. They aren’t. New York City’s codes, regulating the ownership, possession, and licensing of firearms, including handguns, shotguns, rifles and even black powder muskets and non-functioning replicas, are numerous, complex, and onerous.
Mr. Wright is a resident of Nassau County, Long Island, New York. We wrote about Mr. Wright’s acquisition of a Nassau County handgun license. That license isn’t valid in New York City. Mr. Wright’s main business offices are in New York City. Under the firearms’ codes of New York City, Mr. Wright had to acquire a separate New York City handgun license to carry a handgun concealed, lawfully, in any of the Boroughs within the City because, unlike most jurisdictions, the New York State Legislature has not preempted the field of firearms’ licensing. This means that lower level government jurisdictions, Counties and Cities, within the State of New York, can institute their own codes and regulations, so long as those codes and regulations are no less stringent than and are consistent with State Statute. That results in codes and regulations much more complex and clearly more stringent than anything coming out of Albany.
In a previous article we discussed the procedure for obtaining an unrestricted, “full carry” concealed handgun license in New York City. The procedure is costly, in both time and money. Mr. Wright had no alternative but to obtain an unrestricted New York City handgun license if he were to protect his life and safety conducting business in the City. He could not rely on the Nassau County gun permit. New York City does not have firearms’ “reciprocity” with other Cities and Counties in the same State–a strange situation, but not unique. Other States, such as Hawaii, operate similarly. The result is a hodgepodge of firearms’ codes and regulations across the State of New York.
Mr. Wright also conducts business in Maine, and we discussed the procedure for obtaining a concealed handgun carry license, that would allow Mr. Wright, a law-abiding American citizen and inordinately busy entrepreneur, to carry, concealed, on his person, a handgun, in the State of Maine.
THE IMPACT OF THE HELLER CASE ON THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS
For over two decades Mr. Wright has spent substantial time and money securing handgun licenses. He should not have had to do so. The natural right of self-defense follows logically from the natural right of the people to keep and bear arms as codified in the Second Amendment to the United States Constitution. This isn’t supposition. It is fact. If there remain any doubt, about that, the U.S. Supreme Court, in District of Columbia vs. Heller, 554 U.S. 570, 128 S. Ct. 2783 (2008), laid such doubt to rest. Indeed, self-defense was a salient issue of Heller. The overview of the case sums up the holdings as follows: “The Court held that the District’s ban on handgun possession in the home and its prohibition against rendering any lawful firearm in the home operable for the purposes of immediate self-defense violated the Second Amendment. The Court held that the Second Amendment protected an individual right to possess a firearm unconnected with service in a militia and to use that firearm for traditionally lawful purposes, such as self-defense within the home. The Court determined that the Second Amendment’s prefatory clause announced a purpose but did not limit or expand the scope of the operative clause. The operative clause’s text and history demonstrated that it connoted an individual right to keep and bear arms, and the Court’s reading of the operative clause was consistent with the announced purpose of the prefatory clause. None of the Court’s precedents foreclosed its conclusions.”
The majority in Heller stopped short of extending its holding to the carrying of a handgun for self-defense outside the home. But, the high Court generally tailors its decisions narrowly to the specific legal issues of the case. The central issue in Heller was whether the District of Columbia can lawfully ban outright a person’s use of a handgun for self-defense within one’s home. The District of Columbia attempted to do so, thereby reducing the effectiveness of a handgun for self-defense to that of a heavy paperweight, or hammer.
The high Court made clear that the District of Columbia’s constraint on one’s ability to use a handgun for self-defense within one’s home is unconstitutional as it conflicts with the import of the Second Amendment. Since Heller, every State, including the District of Columbia must acknowledge, at least tacitly, and often enough, grudgingly, the right of a person to rely on a handgun for self-defense in one’s home. That right flows, logically, from the high Court’s determination in Heller, as the Court made clear and unequivocal, that the right of the people to keep and bear arms is an individual right, unconnected to an individual’s membership, if any, in a State militia.
The laws of each State and the District of Columbia ostensibly make provision for the carrying of a handgun concealed for self-defense. Yet, in practice several States, including the District of Columbia, issue such licenses, rarely, if at all, and, if they do so, such licenses are issued only to a privileged, well-connected, few which raises, then, Fourteenth Amendment due process and equal protection concerns as America is a class-less society. No American citizen’s rights are function of one’s personal wealth, or power, or connection to those who have extraordinary wealth or who wield extraordinary power. One’s rights and liberties as an American citizen are not expanded or reduced predicated on his net worth, or market value, or position, or status. At least that is not supposed to be the case, but that happens to be true where a law-abiding citizen seeks to exercise one particular natural and fundamental right: namely the right to keep and bear arms.
Moreover, not all jurisdictions that do issue concealed handgun carry licenses maintain a reciprocal relationship with another State. Reciprocity agreements among States is often muddled and fluid—subject to change, often without adequate notice.
WOULD NATIONAL CONCEALED HANDGUN CARRY LEGISLATION ENACTED BY CONGRESS REALLY BE EFFECTIVE IN ENABLING LAW-ABIDING AMERICAN CITZENS TO CARRY A HANDGUN CONCEALED ON THEIR PERSON, FOR SELF-DEFENSE?
To be sure, Congressional enactment of well-crafted national concealed handgun reciprocity legislation would do much to obviate confusion in the lawful carrying of concealed handguns in the several States as each State that provides for concealed handgun carry licensing would be required to recognize the validity of a concealed handgun carry license issued by another State. But that means States—those referred to as “may issue”—that, at present, turn a guaranteed right into a jurisdictional grant or privilege, issuing concealed handgun carry licenses rarely if at all—may not be required to recognize the validity of licenses issued by States that routinely issue such licenses to average, law-abiding citizens—those referred to as the “shall issue” States.
There are several permutations of possible national concealed handgun carry reciprocity legislation formulae that Congress can consider when drafting national concealed carry bills. The Arbalest Quarrel will provide a detailed analysis of the pending bills in a forthcoming article. But, we will say this now: the most effective national concealed handgun carry reciprocity legislation would require all States, including the District of Columbia and all U.S. territories, to recognize and accept, within their respective jurisdictions, and recognize and accept, unconditionally, the validity of every valid State issued concealed carry license whether one is a resident of the State that issued the license or not. That means that no American citizen , carrying a handgun concealed on his person, while also holding a valid concealed handgun carry license, validly issued by the appropriate licensing authority, shall not be subject to arrest.
Suppose, then, a resident of Hawaii—where issuance of concealed handgun carry licenses is extremely rare and virtually impossible to secure unless one is well-connected—obtains a concealed handgun carry license from, say, Texas. Can the resident of Hawaii, then, rely on the validity of the Texas CCW license to lawfully carry a handgun concealed in Hawaii? Well, that depends on how the Congressional national concealed carry legislation is worded. If the legislation sets forth that every State must recognize and honor a valid State issued CCW license in every other State, regardless of a given State’s own firearms’ licensing laws, then the Hawaii resident, holding a valid CCW license issued, say, from Texas, is in safe waters and may utilize the Texas CCW license to carry a handgun concealed in every State, including, then, his home State of Hawaii. The Hawaii resident would be able, then, effectively, to override his home State’s draconian gun laws. But that would make, nugatory, Hawaii’s highly restrictive, draconian gun laws. What would Hawaii do? Hawaii wouldn’t sit idle seeing its “may issue” gun laws neutralized as its own residents, as well as non-residents, can then carry a handgun concealed on their person throughout the islands of Hawaii and the Hawaiian Government could not do a thing about it.
Hawaii would undoubtedly file lawsuits, objecting to the constitutionality of such Congressional legislation. Antigun organizations and the Attorneys General of States such as New York, New Jersey, and Illinois would probably file their own amicus briefs in support of Hawaii’s lawsuits. Hawaii would argue, inter alia, that such Congressional legislation is a bald attempt to override Hawaii’s right under the Tenth Amendment to enact its own firearms’ laws, and that such national concealed handgun carry legislation enacted by Congress operates as an unconstitutional, impermissible infringement on Hawaii’s State as Congressional legislation enjoins States from exercising their own police powers. The Tenth Amendment to the U.S. Constitution says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Hawaii would also likely argue that such national concealed handgun carry legislation operates as an unconstitutional, unconscionable encroachment on State sovereignty as Congress preempts a traditional power of the States—regulation of firearms within a State’s own borders. So-called “may issue” States would argue that such impermissible encroachment means that, as residents of “shall issue” States enter their States carrying valid CCW licenses, with handguns in tow, Hawaii’s police could not arrest them. They would be immune from arrest and from prosecution. Residents of “may issue” States, on their part, who seek to carry a handgun concealed would be unhappy as well if Hawaii’s draconian gun laws prevent them from exercising the very right that non-residents may exercise in their own State—especially if residents of Hawaii would not recognize their own resident’s obtaining valid handgun licenses from another State. This would present a conundrum for Congress and for the Courts.
Antigun proponent residents of those States that do not wish to see—what they perceive, albeit wrongly, to be—an extension of the Second Amendment right of the people to keep and bear arms would raise a hailstorm of objections to guns coming into their State from other States, while those residents who seek to secure CCW licenses for themselves would argue that it makes no sense to deny to them the right to keep and bear arms that is extended to non-residents simply by virtue of less restrictive gun laws existent in non-resident States, especially if any handgun license they obtain from another State is considered invalid in Hawaii if one happens to be a resident of Hawaii.
While antigun groups file lawsuits to curtail the effectiveness of Congressional national concealed handgun carry legislation, there would be, on the other side, plans afoot by residents of “may-issue” States to compel State Legislatures to repeal draconian firearms’ laws and to enact new less restrictive laws that cohere with the firearms’ laws of “shall issue” States and with the Congressional legislation.
Anticipating problems, Republicans in Congress may seek to enact a weaker yet still improbable version of national concealed handgun carry reciprocity legislation. A weaker version of the national concealed handgun carry reciprocity legislation would require every State, including the District of Columbia, and the U.S. territories, to recognize the validity of and therefore honor a validly issued CCW license of the issuing jurisdiction from a citizen’s own State of residence if and only if one’s resident State issues CCW licenses to its residents. But, for “may issue” States, the fact that they issue CCW licenses, theoretically, at least, means that they may be required to recognize and honor the CCW license of any non-resident who comes into their State, “packing” a gun anyway. In that event, we would undoubtedly see present “may issue” States modifying their gun laws, yet further, making their gun laws even more stringent—altogether proscribing the issuance of CCW licenses in their States. Those “may-issue” concealed handgun carry States, such as Hawaii and New York, and Illinois, would not, then, be required to recognize and honor a CCW license issued by another State since they do not, any longer issue CCW licenses. Thus, anyone entering the State with a firearm and a valid CCW license issued by another State would not be in safe harbor. That person would be subject to immediate arrest and prosecution for carrying a gun into the State at all. So, a weakened national concealed handgun carry reciprocity law would really not be a national concealed handgun carry reciprocity law at all, but merely a qualified national concealed handgun carry reciprocity law.
Nonetheless, even weakened versions of Congressional national concealed handgun carry legislation would likely see major battles in Congress. Those battles would then pour over into the Courts.
Looking forward—let’s say the next ten years—assuming national concealed handgun carry reciprocity legislation of some sort or another is passed in the next few months, we would see—indeed would probably have to see—the Heller holding extended to the public domain—namely the domain outside one’s home. That may be the only way to finally snuff out the antigun movement’s efforts to curtail firearm’s ownership and possession once and for all.
HOW MIGHT PROPONENTS OF THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS COMBAT THE EFFORTS OF ANTIGUN GROUPS AND “MAY ISSUE” STATES THAT SEEK TO CURTAIL EXPANSION OF THE HELLER DECISION?
One tenable response to Hawaii’s objection is that the Second Amendment right of the people to keep and bear arms, made applicable to the States under the due process clause of the Fourteenth Amendment to the U.S. Constitution, overrides a possible Tenth Amendment or police powers objection a State, might make, if, as a proponent of national concealed handgun carry reciprocity legislation, argues, as well, that the right of self-defense, a hallmark of the individual right to keep and bear arms, cannot be legitimately circumscribed by States. A framing of constitutional issues may look in part like this:
The natural right of self-defense falls, one, within the right guaranteed under the Second Amendment to the U.S. Constitution; and that right, is protected, two, under the due process and equal protection clauses of the Fourteenth Amendment to the U.S. Constitution; and the right of self-defense is protected, three, under the full faith and credit clause of Article IV, Section 1 of the U.S. Constitution; and perhaps a novel argument may set forth that the right of self-defense, embodied in and entailed by the Second Amendment to the U.S. Constitution is complemented, four, in the Ninth Amendment of the U.S. Constitution as one of the unenumerated rights and liberties underlying the Ninth Amendment. An argument of a Ninth Amendment right of self-defense would likely butt up against the argument that such right is inconsistent with the sovereignty of States under the Tenth Amendment and under the police powers of States to regulate firearms’ laws within their own borders, assuming one can draft a tenable Ninth Amendment argument of self-defense at all—apart from the application of the Second Amendment right to the matter of self-defense as now recognized as a result of the Heller decision, made applicable to the States through the Fourteenth Amendment as set forth in the U.S. Supreme Court’s McDonald decision, that came on the heels of Heller. See, McDonald vs. City of Chicago, 557 U.S. 965, 130 S. Ct. 48 (2009). The Ninth Amendment to the U.S. Constitution says, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Had Hillary Clinton succeeded to the U.S. Presidency, any thought of national concealed handgun carry reciprocity legislation would be no more than a pipedream. With the Trump Administration, soon to be ensconced in the White House, passage of national concealed handgun carry reciprocity legislation, in some form, will pass, notwithstanding efforts of virulent Antigun Legislators, like Senator Charles Schumer, who made very clear that he would oppose it. But, Americans will see enactment of such legislation even if it takes several months to do so, followed by years of Court battles.
Thus, for now, those States that do not at the moment have concealed handgun carry reciprocity agreements with other jurisdictions, and that have no desire to enter into such concealed handgun carry reciprocity agreements with other States, place out-of-State residents in a bind. One must either forego the carrying of a handgun concealed in those jurisdictions that do not have a concealed handgun carry reciprocity agreement with another jurisdiction or one must—like Mr. Wright, who seeks to carry a weapon for self-defense in multiple jurisdictions that he travels to and through for business related purposes—apply for and obtain separate concealed handgun carry licenses, issued by multiple issuing authorities. That at present is the nature of the Country we live in. That is the case for Mr. Wright whose trials and tribulations we follow as he works his way through the obstacles of obtaining a concealed handgun carry license in various New England and mid-Atlantic States where he conducts business.
Thus, the problems Mr. Wright faces simply to exercise his right of self-defense is hampered and constrained—making, for him, and for those of us who seek merely to exercise the natural right guaranteed to us, as codified in the Second Amendment—an elusive goal. Thus the antigun groups and antigun Congress and antigun State Legislatures and mainstream media, and the secretive, wealthy, powerful, ruthless, individuals and groups behind them all continue to make a mockery of the American citizen and continue to make a mockery of the American citizen’s Bill of Rights.
Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.