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Hastings Constitutional Law Quarterly

Abstract

Legislation introduced in recent congressional sessions would enact some version of “concealed carry reciprocity” for firearms. This legislation would create a regime in which a holder of a concealed firearms carry permit issued by one state can carry a concealed weapon in any state that allows some form of concealed carry. Concealed carry reciprocity legislation raises a complex web of constitutional issues. After Part I of this Article introduces the concept of concealed carry reciprocity, as exemplified by a bill that the House passed in December, 2017, Parts II and III consider those constitutional issues. Part II considers the three potential bases of congressional authority to enact such legislation: its Article I power to regulate interstate commerce, its power under Section 5 of the Fourteenth Amendment to enforce that amendment’s other provisions, and its Article IV power “to prescribe the Manner” in which “the public Acts, Records and judicial Proceedings of every other state” “shall be proved, and the Effect thereof.” It concludes that Congress likely lacks such power under the Fourteenth Amendment’s Enforcement Clause, and that serious questions cloud its power under the other two sources of power it identifies. Part III assumes the existence of some constitutional foundation for concealed carry reciprocity legislation, and considers whether such legislation would nevertheless transgress any affirmative limit on congressional power. It suggests that such legislation may unconstitutionally commandeer state governments, and may unconstitutionally delegate federal legislative power to states. The Article’s analysis suggests that concealed carry reciprocity legislation raises serious constitutional issues, with regard to both Congress’s underlying authority and these affirmative limits.

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