H.R. 38: CONCEALED CARRY RECIPROCITY ACT OF 2017: A REAL POSSIBILITY OR A WILL-O’-THE-WISP?

BUT WHO WOULD PROTECT THE PEOPLE FROM THE TYRANNY OF GOVERNMENT IF NOT THE PEOPLE THEMSELVES?

{Antifederalist, founder of our free Republic, Patrick Henry’s prescient argument, given before the Virginia Ratifying Convention in 1788, recognizing the need for an armed citizenry as the great bulwark against a tyrannical government. Note: the Second Amendment to the U.S. Constitution was ratified a few short years later, in December 1791}.

“But, Sir, I have strong cause of apprehension: In some parts of the plan before you, the great rights of freemen are endangered, in other parts absolutely taken away. How does your trial by jury stand? In civil cases gone-not sufficiently secured in criminal-this best privilege is gone: But we are told that we need not fear; because those in power, being our Representatives, will not abuse the power we put in their hands: I am not well versed in history, but I will submit to your recollection, whether liberty has been destroyed most often by the licentiousness of the people, or by the tyranny of rulers? I imagine, sir, you will find the balance on the side of tyranny: Happy will you be if you miss the fate of those nations, who, omitting to resist their oppressors, or negligently suffering their liberty to be wrested from them, have groaned under intolerable despotism. Most of the human race are now in this deplorable condition: And those nations who have gone in search of grandeur, power, and splendor, have also fallen a sacrifice, and been the victims of their own folly: While they acquired those visionary blessings, they lost their freedom. My great objection to this Government is, that it does not leave us the means of defending our rights, or of waging war against tyrants: It is urged by some gentlemen, that this new plan will bring us an acquisition of strength, an army, and the militia of the States: This is an idea extremely ridiculous: Gentlemen cannot be earnest. This acquisition will trample on our fallen liberty: Let my beloved Americans guard against that fatal lethargy that has pervaded the universe: Have we the means of resisting disciplined armies, when our only defence, the militia, is put into the hands of Congress?

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

I need not take much pains to show that the principles of this system are extremely pernicious, impolitic, and dangerous. Is this a monarchy, like England-a compact between prince and people, with checks on the former to secure the liberty of the latter? Is this a Confederacy, like Holland-an association of a number of independent states, each of which retains its individual sovereignty? It is not a democracy, wherein the people retain all their rights securely. Had these principles been adhered to, we should not have been brought to this alarming transition, from a Confederacy to a consolidated Government. We have no detail of these great consideration, which, in my opinion, ought to have abounded before we should recur to a government of this kind. Here is a revolution as radical as that which separated us from Great Britain. It is radical in this transition; our rights and privileges are endangered, and the sovereignty of the states will be relinquished: And cannot we plainly see that this is actually the case?  

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Oh, Sir, we should have fine times indeed, if to punish tyrants, it were only sufficient to assemble the people. Your arms wherewith you could defend yourselves, are gone; and you have no longer an aristocratical; no longer democratical spirit. Did you ever read of any revolution in a nation, brought about by the punishment of those in power, inflicted by those who had no power at all? You read of a riot act in a country which is called one of the freest in the world, where a few neighbors cannot assemble without the risk of being shot by a hired soldiery, the engines of despotism. We may see such an act in America. A standing army we shall have also, to execute the execrable commands of tyranny: And how are you to punish them? Will you order them to be punished? Who shall obey these orders? Will your Mace-bearer be a match for a disciplined regiment? In what situation are we to be? . . . . The clause before you gives a power of direct taxation, unbounded and unlimited: Exclusive power of Legislation in all cases whatsoever, for ten miles square; and over all places purchased for the erection of forts, magazines, arsenals, dockyards, etc. What resistance could be made? The attempt would be madness. You will find all the strength of this country in the hands of your enemies: Those garrisons will naturally be the strongest places in the country. Your militia is given up to Congress also in another part of this plan: They will therefore act as they think proper: All power will be in their own possession: You cannot force them to receive their punishment: Of what service would militia be to you, when most probably you will not have a single musket in the State; for as arms are to be provided by Congress, they may or may not furnish them. Let me here call your attention to that part which gives the Congress power, ‘To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively, the appointment of the officers, and the authority of training the militia, according to the discipline prescribed by Congress.’ By this, Sir, you see that their control over our last and best defence is unlimited. If they neglect or refuse to discipline or arm our militia, they will be useless: the States can do neither, this power being exclusively given to Congress: The power of appointing officers over men not disciplined or armed is ridiculous: So that this pretended little remains of power left to the States may, at the pleasure of Congress, be rendered nugatory. Our situation will be deplorable indeed: Nor can we ever expect to get this government amended, since I have already shewn, that a very small minority may prevent it; and that small minority interested in the continuance of the oppression: Will the oppressor let go the oppressed? Was there even an instance? Can the annals of mankind exhibit one single example, where rulers overcharged with power willingly let go the oppressed, though solicited and requested most earnestly? Was there even an instance?” Speech of Patrick Henry (quoted at length, passim); Virginia Constitutional Ratifying Convention, 5 June 1788  in The Debates of the Several State Conventions on the Adoption of the Federal Constitution (Jonathon Elliot ed., 1907).

IMAGINE PATRICK HENRY GIVING THE ABOVE SPEECH TO THE 115TH CONGRESS OF THE UNITED STATES. DO YOU NOT THINK THAT PATRICK HENRY WOULD SUPPORT NATIONAL CONCEALED HANDGUN CARRY RECIPROCITY LEGISLATION? WHAT, DO YOU SUPPOSE, WOULD BE DEMOCRATIC PARTY REACTION TO PATRICK HENRY’S SPEECH? IMAGINE DEMOCRATS AND CENTRIST REPUBLICANS TELLING PATRICK HENRY THAT HIS WORDS, HIS PERCEPTIONS, HIS LOVE FOR THE SACRED RIGHTS AND LIBERTIES OF AMERICANS ARE NO LONGER RELEVANT! ALL THE WORSE, THEN, FOR WE, AMERICANS, OF THIS “BRAVE” NEW WORLD ORDER.

National Concealed Handgun Carry Reciprocity, also referred to as “Constitutional Carry,” is an issue of great importance to Americans who hold dear the fundamental right of the people to keep and bear arms as codified in the Second Amendment to the United States Constitution. Unfortunately, many members of Congress—and need we daresay, most members of Congress—do not share the same sensibility and enthusiasm toward this sacred, sacrosanct, and inviolate right that the founders of our free Republic, not least of all Patrick Henry, felt important enough to enshrine in the most critical component of our Constitution: Our Bill of Rights. In fact, it is apparent that many members of Congress—virtually all Democrats, along with a good many centrist Republicans—feel that the fundamental right embodied in the Second Amendment should be whittled away to nothingness; and, by their way of thinking, good riddance, grounded on the reason, often given, and fervently believed, that the Second Amendment has long outlived its usefulness, its purpose, its very significance. They have, accordingly, passed legislation to accomplish that very goal, enacting numerous laws to destroy the free exercise of our most sacred right: the right of the people to keep and bear arms.

FIVE CONGRESSIONAL ENACTMENTS THAT HAVE HARMED THE AMERICAN CITIZEN’S EXERCISE OF THE FUNDAMENTAL RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS

The comprehensive National Firearms Act of 1934 (NFA) and the Gun Control Act of 1968 (GCA) did significant, substantial, perhaps even irreparable damage to the right codified in the Second Amendment since its ratification in 1791. But, lest one be under the illusion that anti-Second Amendment Congressional legislators were confident that the NFA and GCA amount to the veritable endgame in weakening the Second Amendment, Congress was far from done. Congress has since amended the GCA, further beleaguering the right of the people to keep and bear arms. We witness the Firearms Protection Act of 1986 (FOPA)*; the Brady Handgun Violence Protection Act of 1993; and the Assault Weapons Ban of 1994 (AWB) (now, fortunately, expired).

NATIONAL CONCEALED HANDGUN CARRY RECIPROCITY LEGISLATION

Congressional Republicans attempted to push back against the NFA, GCA and against an onslaught of further anti-Second Amendment bills, presented by Congressional Democrats, by drafting bills of their own that, if enacted, would strengthen the Second Amendment in accordance with the intent of the framers of it. From 2011 to date Republicans in the House and Senate introduced thirteen bills, any one of which, if enacted, would allow individuals, not under disability, who have a valid license to carry a handgun concealed in one State to lawfully carry a concealed handgun in every other State. Where are they now? Four of the bills failed in Committee. The other nine are stalled in Committee. The Arbalest Quarrel has written on this dismal state of affairs in the article, titled, “Second Amendment Handgun Carry Reciprocity Among the Several States—A Right Denied!”, posted on September 29, 2017.  None appear to be going anywhere soon.

Although the basic mechanics of how a bill becomes law is no secret, and readily discernible, still, nonetheless, the inner workings of the U.S. Congress is inscrutable. One thing, though, is clear. No bill comes to the Floor of the House or Senate, for open hearing, debate and vote, without the backing of House and Senate leadership. So, if the Senate Majority Leader, at the moment, Senator Mitch McConnell, and if the Speaker of the U.S. House of Representatives, at the moment, Representative Paul Ryan, do not wish to give a bill so much as an even chance of passage, then the bill will die in committee or, otherwise, the bill will be cast into a committee limbo. Such is the fate of most bills. Such is the fate of all national concealed handgun carry bills, to date.

H.R. 38: CONCEALED CARRY RECIPROCITY ACT OF 2017

H.R. 38 is merely the latest of the national concealed handgun carry reciprocity bills to be introduced in Congress. The purpose of the bill is set forth thus: “A bill to amend title 18, United States Code, to provide a means by which nonresidents of a State whose residents may carry concealed firearms may also do so in the State.”

In full, H.R. 38 sets forth:

SECTION 1.  SHORT TITLE. This Act may be cited as the “Concealed Carry Reciprocity Act of 2017”.

SEC. 2. RECIPROCITY FOR THE CARRYING OF CERTAIN CONCEALED FIREARMS. 

(a)  IN GENERAL. – Chapter 44 of title 18, United States Code, is amended by inserting after section 926C the following:

 “§ 926D. Reciprocity for the carrying of certain concealed firearms 

“(a)  Notwithstanding any provision of the law of any State or political subdivision thereof (except as provided in subsection (b)) and subject only to the requirements of this section, a person who is not prohibited by Federal law from possessing, transporting, shipping, or receiving a firearm, who is carrying a valid identification document containing a photograph of the person, and who is carrying a valid license or permit which is issued pursuant to the law of a State and which permits the person to carry a concealed firearm or is entitled to carry a concealed firearm in the State in which the person resides, may possess or carry a concealed handgun (other than a machinegun or destructive device) that has been shipped or transported in interstate or foreign commerce, in any State that-

“(1) 

has a statute under which residents of the State may apply for a license or permit to carry a concealed firearm; or

“(2) 

does not prohibit the carrying of concealed firearms by residents of the State for lawful purposes.

“(b) This section shall not be construed to supersede or limit the laws of any State that-

“(1) 

permit private persons or entities to prohibit or restrict the possession of concealed firearms on their property; or

“(2) 

prohibit or restrict the possession of firearms on any State or local government property, installation, building, base, or park.

“(c) 

(1)  A person who carries or possesses a concealed handgun in accordance with subsections (a) and (b) may not be arrested or otherwise detained for violation of any law or any rule or regulation of a State or any political subdivision thereof related to the possession, transportation, or carrying of firearms unless there is probable cause to believe that the person is doing so in a manner not provided for by this section. Presentation of facially valid documents as specified in subsection (a) is prima facie evidence that the individual has a license or permit as required by this section.

“(2) 

When a person asserts this section as a defense in a criminal proceeding, the prosecution shall bear the burden of proving, beyond a reasonable doubt, that the conduct of the person did not satisfy the conditions set forth in subsections (a) and (b).

“(3) 

When a person successfully asserts this section as a defense in a criminal proceeding, the court shall award the prevailing defendant a reasonable attorney’s fee.

“(d) 

(1)  A person who is deprived of any right, privilege, or immunity secured by this section, under color of any statute, ordinance, regulation, custom, or usage of any State or any political subdivision thereof, may bring an action in any appropriate court against any other person, including a State or political subdivision thereof, who causes the person to be subject to the deprivation, for damages or other appropriate relief.

“(2) 

The court shall award a plaintiff prevailing in an action brought under paragraph (1) damages and such other relief as the court deems appropriate, including a reasonable attorney’s fee.

“(e)  In subsection (a):

“(1) 

The term ‘identification document’ means a document made or issued by or under the authority of the United States Government, a State, or a political subdivision of a State which, when completed with information concerning a particular individual, is of a type intended or commonly accepted for the purpose of identification of individuals.

“(2) 

The term ‘handgun’ includes any magazine for use in a handgun and any ammunition loaded into the handgun or its magazine.

“(f) 

(1)  A person who possesses or carries a concealed handgun under subsection (a) shall not be subject to the prohibitions of section 922(q) with respect to that handgun.

“(2) 

A person possessing or carrying a concealed handgun in a State under subsection (a) may do so in any of the following areas in the State that are open to the public:

“(A) A unit of the National Park System.

“(B) A unit of the National Wildlife Refuge System.

“(C) Public land under the jurisdiction of the Bureau of Land Management.

“(D) Land administered and managed by the Army Corps of Engineers.

“(E) Land administered and managed by the Bureau of Reclamation.”.

(b) CLERICAL AMENDMENT. – The table of sections for such chapter is amended by inserting after the item relating to section 926C the following:

“926D.  Reciprocity for the carrying of certain concealed firearms.”

(c)  SEVERABILITY. – Notwithstanding any other provision of this Act, if any provision of this section, or any amendment made by this section, or the application of such provision or amendment to any person or circumstance is held to be unconstitutional, this section and amendments made by this section and the application of such provision or amendment to other persons or circumstances shall not be affected thereby.

(d)  EFFECTIVE DATE. – The amendments made by this section shall take effect 90 days after the date of the enactment of this Act.

Representative Richard Hudson, R-NC, introduced the bill in the House of Representatives on January 3, 2017. There were 84 Cosponsors: 83 Republicans and, curiously, one Democrat. The lone democrat who cosponsored the bill is Henry Cuellar, D-TX.

WHO SIGNED ON AS COSPONSORS OF THE H.R. 38? **

Sponsor and original Cosponsors of H.R. 38  as of the date of the bill’s introduction in the U.S. House of Representatives, on 01/03/2017:

Hudson, Richard (R-NC) – Sponsor; Lamborn, Doug (R-CO) – Cosponsor; Chabot, Steve (R-OH) – Cosponsor; Smith, Lamar S. (R-TX) -Cosponsor; LaMalfa, Doug (R-CA) – Cosponsor; Graves, Tom (R-GA) – Cosponsor; Yoder, Kevin W. (R-KS) – Cosponsor; Huizenga, Bill (R-MI) – Cosponsor; Cole, Tom (R-OK) – Cosponsor; Duncan, Jeff D. (R-SC) – Cosponsor; Hensarling, Jeb (R-TX) – Cosponsor; Diaz-Balart, Mario (R-FL) – Cosponsor; King, Steve (R-IA) – Cosponsor; Franks, Trent (R-AZ) – Cosponsor; Emmer, Tom (R-MN) -Cosponsor; Cuellar, Henry (D-TX) – Cosponsor; Walorski, Jackie (R-IN) – Cosponsor; Smith, Jason (R-MO) – Cosponsor; Cook, Paul (R-CA) -Cosponsor; Buchanan, Vern (R-FL) – Cosponsor; Olson, Peter Graham (R-TX) – Cosponsor; Harper, Gregg (R-MS) – Cosponsor; Gaetz, Matt (R-FL) – Cosponsor; Hartzler, Vicky (R-MO) – Cosponsor; Johnson, Bill (R-OH) – Cosponsor; Farenthold, R. Blake (R-TX) -Cosponsor; Brooks, Mo (R-AL) – Cosponsor; Kinzinger, Adam (R-IL) – Cosponsor; DesJarlais, Scott Eugene (R-TN) – Cosponsor; Cramer, Kevin (R-ND) – Cosponsor; Holding, George B. (R-NC) – Cosponsor; Meadows, Mark (R-NC) – Cosponsor; Mullin, Markwayne (R-OK) – Cosponsor; Pittenger, Robert (R-NC) – Cosponsor; Wagner, Ann (R-MO) – Cosponsor; Williams, Roger (R-TX) – Cosponsor; Sanford, Marshall C. (R-SC) – Cosponsor; Brat, Dave (R-VA) – Cosponsor; Buck, Ken (R-CO) -Cosponsor; Katko, John M. (R-NY) – Cosponsor; Newhouse, Dan (R-WA) – Cosponsor; Ratcliffe, John Lee (R-TX) – Cosponsor; Walker, Mark (R-NC) – Cosponsor; Westerman, Bruce (R-AR) – Cosponsor

{Congress has lost its way. Congress does not serve the interests of the American people. But, if it is not the American people whom Congress serves, then whom is it that Congress does serve? Congress must be reminded that its duty is to serve the American people. Those Legislators who fail in their duty to the American people must be voted out of Office.

Let your U.S. Senator and U.S. Representative know how you feel about your Second Amendment right to keep and bear arms. Phone (202) 225-3121. It is a fast and easy process; and a critical one. Only through your active participation, can we help secure our Second Amendment.} 

________________________________________

*Supporters of FOPA might argue that it operates as a positive step forward, toward strengthening the Second Amendment and they might point to support garnered from NRA that supported various aspects of FOPA. But, “Despite its magnanimous sounding title, and notwithstanding some of its more generous provisions, the Firearms Owners Protection Act (FOPA) also contained a Trojan Horse. While the NFA severely restricted possession of fully automatic weapons, the 1986 FOPA, signed into law by President Reagan, made possession of any fully automatic firearm which was manufactured before 1986 a felony, with certain narrow exceptions. Given that possession of fully automatic firearms was already heavily regulated by the NFA, the immediate impact of the FOPA was minimal. However, as 1986 fades into the past, the law has begun to manifest its twofold effect. First, it insures that even fully registered fully automatic firearms in private possession gradually become more and more obsolete. They are now twenty years old. Eventually, they will appear as quaint as the flintlocks that some faux-originalists claim are the only weapons protected under the Framers’ intent. Second, as older weapons are gradually decommissioned, fewer of these weapons are available for civilian ownership, reducing the collective firepower of the militia and increasing the price of those full automatics still on the market. The eventual effect of the statute will be a de facto ban on civilian possession of all full automatics, except for a few museum pieces.” And, fully automatic weapons manufactured after 1986 are banned from the civilian market altogether. “Do Federal Firearms Laws Violate the Second Amendment by Disarming the Militia?”, 10 Tex. Rev. Law & Pol. 469, 484 (Spring 2006), by John-Peter Lund, A.B. 1997, M.A. 1999, University of California at Berkeley; J.D. 2006, University of Texas. See also, “Symposium: Gun Control and the Second Amendment: Developments and Controversies in the Wake of District of Columbia v. Heller And McDonald v. Chicago: Article: The Great Gun Control War of the Twentieth Century—And Its Lessons For Gun Laws Today, 39 Fordham Urb. L.J. 1527, 1574 (October 2012), by David B. Kopel, Adjunct Professor of Advanced Constitutional Law, Denver University, Sturm College of Law. Research Director, Independence Institute, Denver, Colorado. Associate Policy Analyst, Cato Institute, Washington, D.C. Kopel is the author of fourteen books and over eighty scholarly journal articles, including the first law school textbook on the Second Amendment: Nicholas J. Johnson, David B. Kopel, George A. Mocsary & Michael P. O’Shea, Firearms Law and the Second Amendment: Regulation, Rights, and Policy (Aspen Publishers, 2012). This article is a revised and extended version of a portion of the textbook written by Kopel. See David Kopel’s website. “Because of an amendment added on the floor of the House, FOPA also banned the sale of new machine guns (manufactured after the date that FOPA became law, May 19, 1986) to the public. The NRA successfully challenged the ban in district court, but lost in the Eleventh Circuit, and the Supreme Court denied certiorari. (The challenge had asked that language allowing the sale of new machine guns ‘under the authority of the United States’ be construed to allow sales that complied with the Federal National Firearms Act of 1934).”

** Roger Katz and Stephen D’Andrilli, Co-creators of the Arbalest Quarrel weblog, are regular guests on Lock and Load Radio with Bill Frady. Toward the end of the 6:00 show, that took place this past Thursday evening, October 18, 2017, Bill informed Roger Katz that a listener to the show had contacted Bill through the show’s “Chat Room.” The listener requested a list of all Republican House Members who did not support H.R. 38. Roger explained that he would post an article, responsive to the listener’s request. Stephen and Roger are, accordingly, doing so through this article.

Responsive to the listener’s request, be advised that the 115^th Congress has 435 House Members, broken down as follows: 239 Republican House members, 194 Democrats, and two vacancies. Concerning the vacancies, the Honorable Tim Murphy resigned on October 21, 2017, and the Honorable Jason Chaffetz resigned on June 30, 2017.  For a list of the names of House and Senate Members, the following websites provide a wealth of information: http://clerk.house.gov/member_info/cong.aspx; https://www.house.gov/; and https://contactsenators.com/party.php?party=republican. Rather than listing the names of those Republican House Members who did not add their names to the list of cosponsors of H.R. 38, Stephen and Roger have listed the names of those who did add their names as cosponsors since the list of cosponsors of the bill was readily ascertainable.

It would be unnecessarily labor intensive to list the names of over 150 Republican House Members who did not sign on as cosponsors of the bill, but those individuals who would like to ascertain the names of the Republican House Members who did not add their names as cosponsors to H.R. 38 can readily ascertain who those House Members are by comparing the names of the sponsor and cosponsors of the bill which Roger and Stephen have provided in this article, with those who did not. The web links provided in this article, supra, set forth the names of each House Member. But, keep in mind that, notwithstanding that a House Member adds his or her name as a cosponsor to this bill, or, for that matter, to any other bill, this does not mean the House Member would vote for enactment. A Member of Congress is not required to do so. Similarly, the fact that a House Member did not sign on as a cosponsor of H.R. 38, this does not mean that the House Member would not vote for enactment of H.R. 38 were it to move forward to a full House Floor vote. In fact, many House Members might have cosponsored H.R. 38, knowing full well that its chance of passage, based on what they, and we, have seen of previous similar bills, is slim to nonexistent. Cosponsors of H.R. 38 might, then, wish to create the impression they are fervent supporters of the Second Amendment generally and of national concealed handgun carry legislation particularly, when in fact they are not, knowing that it is highly unlikely that they will ever have to place their honor and integrity on the line as it is highly unlikely—at least at the present time—that H.R. 38 will ever make its way out of Committee, let alone find its way to the House Floor for a full public hearing and debate and, then, on to a full House Floor vote. That is not to say that many–and, probably, or, at least, hopefully all or most–of the cosponsors of H.R. 38 do not in fact strongly support the bill that they have lent their name in support to and that they would not decidedly and definitely like to see passage of the bill in the event, however unlikely it might be, that Representative Paul Ryan, will relent and allow H.R. 38—or any of the other similar national concealed handgun carry reciprocity bills, presently stuck in Committee—to wend its way through Committee and on to the House Floor for full public hearing, debate, and vote. Quite simply, we don’t know.

_________________________________________________

Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.