Introducing Gun Laws by State, 2012 Edition: Part II

The Reciprocal Carry Conundrum: Part II

Doesn’t The Second Amendment Allow Me To Carry A Handgun (or Long Gun) Throughout The Country (And If So, Why GLBS!)?

In a word, “no.”

Broadly, the right to keep and bear arms was conceived as a natural right–a right to self-protection–that the 2nd Amendment was drafted and included in the original Ten Amendments to prohibit the government from limiting. However, even before the Constitution was penned, firearms regulations not incongruent with this right existed.

In the Colonies, for instance, there were laws prohibiting the common act of shooting up into the air, such as for celebratory occasions (or sometimes a drunken state). All but travelers were prohibited from carrying concealed weapons. And there were companion laws, such as bans on fire hunting, a practice of setting an area on fire and shooting the animals that emerged.

Ultimately, a few of the earliest and relative uniform laws across the United States, albeit at the state-level, were those enacted by legislatures imposing special restrictions on carrying concealed handguns–namely to have a license to do, ensuring some level of screening of applicants out who were not mentally or otherwise fit to carry a concealed handgun. The reason handguns were singled out for this treatment is because of their small size.

Such licensing faced stiff opposition in many states under constitutional theories, but the courts upheld these laws because they were regulatory in nature and narrowly tailored to protect the citizens at large and police officers from unnecessary risk of being surprised by someone who was fit to carry such a concealed weapon.

When Congress became involved in firearms regulation, such as with adoption of the National Firearms Act at the turn of the century, it did not preempt the field under the Commerce Clause. A national right to carry a handgun through the United States has been proposed but never has passed Congress.

It was only in the last few years that the United States Supreme Court has struck down any laws involving firearms. This occurred in the Heller and McDonald cases where SCOTUS ruled unconstitutional any ordinance or law that made it illegal for government to ban an entire class of firearms–handguns–overwhelming preferred by citizens for self-defense of the home.

Ultimately, the only way a state license or permit to carry a handgun in one state is recognized in another state is by compact (agreement) between states to recognize the others. These may be negotiated between top officials, such as attorney generals or just set out in a statute or ordinance (where there is not state preemption).

A number of differences between states’ licensing requirements may mean a compact is not reached. The most common reason states do not enter into a compact for reciprocal carry, through recognition of the other’s license, is because one state has more restrictive training or qualification for a license than the other. The theory here is that the more restrictive state would put its citizens at risk by not having less qualified non-residents carrying a handgun in their state.

Ultimately, with reciprocity comes the recognition there is no national license to carry, except for certain qualified off-duty or retired police officers, and in each case, certain state laws must be followed or the non-resident licensee or out-of-state police officer may run into administrative, civil or criminal exposure.

Gun Laws by State book coverThis is where GLBS (Gun Laws by State) comes into help. As hinted at in Part I, there are a dizzying number of firearms laws, which may be local, state and/or federal to be considered in reciprocal carry. GLBS pulls together the information most readers would need in most cases and provides clear and direct resources to verify your own research on the proposed reciprocal carry, including resources to access for more obscure queries.

GLBS also defines the right of reciprocal carry of a handgun in two reciprocal states–a state right–against and as opposed to the federal statutory right to transport (not loaded and inaccessible) all lawfully possessed firearms between a place in which it is legal through places it is not to any other lawful destination where it may be possessed.

Finally, to cover the continuum of reciprocal carry, GLBS turns to the complex and legally thorny issue of self-defense by use of force on a force continuum–including deadly force. In doing so, GLBS provides the major justifications and differences between states.

Does the state and federal right to carry now have meaning and distinction for you Do you also understand the legal theory of why handguns are more closely regulated? . If so, Part II of GLBS introductory series has met its objective and the conundrum tempered a bit.

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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