Introducing Gun Laws by State, 2012 Edition: Part IV

The Reciprocal Carry Conundrum: Part IV

Understanding the Legal System: State Sovereignty Versus Federal Supremacy and How it Works

Gun Laws by State book coverThus far GLBS (GunLawsByState.com) has set out what it does and why it is so necessary for prudent and lawful reciprocal carry. Now it takes the next step and sets forth why and how local, state and federal law may apply in any given instance of reciprocal carry. This is crucial to evaluating whether to carry in a reciprocal state and, if so, what laws to follow.

At this point the constitutionalists may be cringing and asking themselves the following rhetorical question: “Why would I not want to carry if I have the right to keep and bear arms under the 2nd Amendment, plus a given reciprocal state’s constitutional right?” The answer lies in a risk versus benefit analysis.

Think not? At some level (unconscious, subconscious, or conscious), advertisers to economists will tell us that every choice we make in life is decided by this analysis. Although this blog is intended to stimulate thinking, it is not to precisely debate this point.

But think of it this way, if you have a technical right to reciprocal carry and/or interstate transportation of a handgun, but the place in which you desire to carry has low violent crime, not state-based reciprocity, and a zero-tolerance policy for technical violations of firearms law, do you want to take the risk.

The “gut” response is that if your rights are violated, you have relief through the court system. Clearly, that is correct, but are you willing to be arrested and jailed and or sued and spend tens of thousands of dollars and years fighting a technical right?

If the answer is qualified and/or the state does not preempt (keep) local government from passing firearms ordinances, law, rules or regulations, it is possible, in fact probable, the gun laws will vary from one mile or side of the street to the other.

Ultimately, the most powerful weapon in to defend yourself sits on your shoulders. Don’t go? Don’t carry? Pick an alternative weapon? Just make a conscious choice. That said, a big part of the conundrum lies in determining how the legal system fits together and operates?

With any given policy (pro- or anti-gun/state versus local authority), the local governmental body (if the state allows), state legislature, and/or Congress (legislative branch) passes statues, which when signed into law (executive branch), become law. These are then enforced through the courts. Statutory law and case law applying and/or interpreting it (judicial branch).

Statutory and case law decisions, including local ordinances, must operate within constitutional parameters, set forth by state and federal constitutions. State law may be more restrictive, but not less restrictive, than federal constitutional law. The inverse is not true because federal law is supreme to state law under the Supremacy Clause of the United States Constitution.

If a state does not defer to local government, and thereby, allow it to make ordinances covering its affairs, commonly referred to as “home rule”, it cannot make rules and regulations regarding firearms. Where a state does, this is called preemption.

While ordinances do not typically engage criminal law, they subject the violator to injunction (stopping) and fine. In the context of carrying a handgun, it could subject a person in violation to confiscation of the firearm and fine. A violation of even an ordinance may result in license revocation proceedings.

Under state legislative acts and the laws of Congress, they are typically civil or criminal in nature. Some prohibitions are stepped up and have civil and criminal components. Generally speaking, civil violations of law are remedied by monetary award. Criminal law is enforced by restriction on freedom, such as incarceration.

To execute and enforce criminal and civil statutes, precise development and enforcement of the law is something legislative branches are ill equipped to handle. These tasks are handled by administrative bodies they create, such as ATF. For this reason, vast quantities of law are found in administrative codes.

Thus, presupposing preemption, state or federal criminal and civil laws must be looked at in conjunction with administrative rules and regulations and sub-sets of laws that may come from these regulations. With ATF, these could be found in open letters and rulings.

In addition, real property owners or licensees may have rules and regulations regarding firearms on his or her property. This varies widely throughout the states. In some states, a person with a property interest may post “no firearms allowed” or similar posting and prohibit someone who comes onto the property from bringing their handgun carried under reciprocity. Violation may result in expulsion from the property to commission of a criminal act, depending upon whether there is a criminal statute in the given state.

Within any state, there may be federal property or lands to which state or federal law may apply. Each have their own law enforcement officers and courts. In addition, with certain legal issues deemed of great importance, there may be overlapping coverage’s which means a person may be brought to civil or criminal trial in state or federal court.

Two common areas of concurrent state and federal litigation are found in penal laws covering primary and secondary education, along with public airports and commercial airliners.
While it is arguable the Congress could preempt the firearms area all together under the Commerce Clause, it has not done so. Therefore, any or all of these sources of authority may apply to firearms, handguns, and issues faced in reciprocal carry.

Assuming some basic understanding of this legal framework, the final element to lawful reciprocal carry comes with researching the laws of the states into which or through interstate transportation or carry will occur. This is the scope of law underpinning the conundrum of lawful reciprocal carry.

GLBS is your partner in considering and executing lawful reciprocal carry of a handgun in another state. This blog post is written by Bryan L. Ciyou, Ciyou & Dixon, P.C., Indianapolis, Indiana. This blog is not a solicitation for legal services.

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