H.R. 822, the "National Right-to-Carry Reciprocity Act of 2011" is making its way through Congress. On the surface it appears to be very good legislation for gun owners and self-defense advocates as it would help protect the rights of law-abiding gun owners and enable millions of concealed carry permit holders to exercise their right to self-defense while traveling outside their home states.
Opponents of the legislation claim that the Bill is an affront to "states' rights" and many anti-gun lawmakers who've long pushed national gun bans, national bans on private gun sales, national waiting periods and other federal restrictions have suddenly become born-again advocates of so-called "states' rights" to oppose this bill. However, it has been pointed out by Constitutional experts, such as Prof. David Kopel of the University of Denver Sturm College of Law that states don't have rights, only powers and that several provisions of the Constitution give Congress the authority to enact interstate carry.
First, Article IV protects the "Privileges and Immunities of Citizens in the several States," which the Supreme Court has interpreted to include a right to travel freely throughout the country. As the court said in the 1989 case of Saenz v. Roe, that includes the "right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State."
Next, section 5 of the 14th Amendment gives Congress the power to enforce the provisions of that amendment. Not only does the history of the amendment show that it was also intended to protect a right to travel, but the Supreme Court held last year in McDonald v. City of Chicago that the 14th Amendment protects the right to keep and bear arms against state infringement. "Bear" clearly means "carry," although several courts are currently considering how far that right goes.
Finally, Congress has the power to regulate interstate commerce, which includes the power to remove state barriers to free interstate travel. (This was the basis for the civil rights laws of the 1960s that ended racial discrimination by places of public accommodation such as motels.) H.R. 822 applies only to guns that have been shipped or transported in interstate commerce, which has been the basis for most federal gun control laws since the 1960s; here, however, the power would be used to advance gun owners' rights rather than to restrict them.
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