States have a constitutional duty to recognize gun rights nationwide

By George Mocsary and Rafael Mangual
The Hill
December 27th. 2017



The question then is: are gun rights protected by the Fourteenth Amendment? During the debates on the Amendment, and the related Civil Rights Act of 1866 and Second Freedman’s Bureau Act, the right to keep and bear arms was explicitly invoked frequently as one of the elementary civil rights and rights of citizenship that Freedmen, who were regularly and violently disarmed, were entitled to enjoy along with whites. The Supreme Court recognized this and more in 2010, in the case of McDonald v. City of Chicago. In that case, the Court unambiguously held that the Second Amendment is a "fundamental right” that “is fully applicable to the States.”

The particular source of the right asserted was the Due Process Clause of the Fourteenth Amendment — with which Justice Clarence Thomas famously and eloquently took issue in his concurrence, arguing that the true source of the right was the Fourteenth Amendment’s Privileges and Immunities Clause.

To be sure, there are other considerations that should be part of the reciprocity discussion.

For example, moving between and among the several states is a fundamental right upon whose exercise the states may not place a substantial burden. Nor can states discriminate against new residents by treating them differently in matters of importance, like medical care and welfare benefits. This has implications for American gun owners. If a state may not chill the freedom of interstate travel by placing restrictive conditions on certain benefits, it is reasonable to conclude that stripping one’s carry rights in order to cross state lines would also be impermissible under the Fourteenth Amendment.

The Fourteenth Amendment prohibits states from infringing certain civil rights. Among those rights are those secured by the Second Amendment. While the Supreme Court has not explicitly weighed in on the constitutionality of bans on firearm carriage, Congress may exercise its constitutional judgment to draw its own conclusion. It follows that Congress, to the extent that it believes that the Second Amendment protects concealed firearm carriage outside the home, has constitutional authority to enforce the Fourteenth Amendment’s prohibition on state violations of that right through legislation like the Concealed Carry Reciprocity Act of 2017.