The unilateral decision by Virginia’s Attorney General Mark Herring to renege on reciprocal recognition with 25 other states on carry permits has both legislators and activists scrambling. Members of Virginia’s state legislature will introduce one or more bills to both restore the reciprocity agreements and curtail Herring’s authority to interfere in them, an effort that Governor Terry McAuliffe will undoubtedly oppose. The NRA, as Matt Vespa wrote yesterday, wants Congress to pass a “total recognition” statute that would force states to recognize permits issued by other states.
Both efforts are necessary in the short-term circumstances of the moment. In my column for The Fiscal Times, I wonder why they are needed at all, however. The US Constitution has a clause that should make all of the proposed legislative fixes unnecessary, one which many of those cheering Herring’s decision often cited when it came to another piece of federal legislation they disliked:
Herring has now placed responsible Virginia gun owners into these kinds of inadvertent traps by canceling reciprocity agreements with states in the region. That prompts a larger question: why are they needed in the first place? Article IV, Section 1 of the U.S. Constitution states, “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” The inclusion of that clause clearly intended to prevent these kind of legal traps for law-abiding citizens by forcing other states to recognize the licenses and permits of other states, and its placement in the original articles shows that this takes precedence over the 10th Amendment recognition of state sovereignty.
Ironically, this was also one of the arguments used to oppose the Defense of Marriage Act (DOMA), signed into law by Bill Clinton. Congress in that case passed the law with the express purpose of voiding the Full Faith and Credit clause when it pertained to the definition of marriage, especially when it came to court judgments and state benefits. The Supreme Court used other constitutional arguments to strike down DOMA in its Windsor decision, and mooted the argument entirely when it demanded full national recognition of same-sex marriage in Obergefell. In earlier decisions such as Pacific Employers Insurance (1939) and Hyatt (2003 on tax rates), the court also ruled that states may have “some limitations” in recognizing other state’s laws – when those statutes utterly conflict with their own.
That, however, is not the case with carry permits. Virginia will continue to issue carry permits, just as these other states do. Herring claims that the processes used by other states do not meet the standards of Virginia, but that turns the Pacific Employers Insurance decision on its head. Each state that issues carry permits has settled on their own criteria for issuance, and those requirements remain in effect for the duration of the permit regardless of temporary travel. …
Furthermore, the ability to carry arms in self-defense is not an esoteric policy regarding insurance or tax rates. The Constitution guarantees the right to “keep and bear arms” in the Second Amendment. The Supreme Court has upheld it as an individual right in Heller, and as a right to carry firearms outside of the home in McDonald. While the court also recognized the authority of states in both instances to set reasonable standards on the exercise of those rights, the constitutional priority of the right for law-abiding citizens to arm themselves requires those restrictions to be rational and to keep from making compliance so onerous that it becomes impossible to exercise those rights.
Herring’s actions are a deliberate attempt to do exactly that – make the exercise of rights affirmed in Heller and McDonald so potentially costly to law-abiding citizens that they simply give up.
The only way to get that precedent set, unfortunately, is to have someone face prison time on firearms charges. Chris Christie issued a full pardon to a Marine recruiter who inadvertently kept his unloaded pistol in his car when he drove from Massachusetts (where he had a permit) to New Jersey, where he was arrested after a routine traffic stop. It might take that kind of case to get the federal courts to apply the Full Faith and Credit clause to carry permits, unfortunately.