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Sunday, July 16, 2017

Firearms, Federalism, and Full Faith & Credit: Can Congress subject everyone to the "concealed carry" laws of gun-lovin' states?

Those of you who pay attention to the politics of firearms might be familiar with either H.R. 38 or S.146, the House and Senate versions respectively of the Concealed Carry Reciprocity Act of 2017. If you are a federalism nerd (I plead guilty), then you might also be familiar with the Full Faith & Credit argument in favor of this bill, a theory championed by Stephen Sachs, Randy Barnett, and Will Baude, based on Stephen Sachs' erudite and creative Virginia Law Review piece analyzing the history of Article IV's FF&C clause in the pre-constitutional period, the ratification debates, and the congressional debates of the early republic.

You might not, however, have thought very much about whether or not either the CCRA or Sachs' Theory of Congress' Article IV, section 1 power present any practically sensible theory of federalism. Should Congress have unlimited power to declare that any state's laws, licenses, permits, and so forth, can govern conduct in other states? If not, then how should the Constitution limit Congress's power to define the effects of one's state's rules and actions in other states? Outside of DOMA (where the issue had its fifteen minutes of law review fame), the practical justifications for Congress' Article IV power has not been discussed much by law reviews or judicial decisions, simply because Congress rarely uses its Article IV power.

We should, therefore, be thankful for both CCRA and Sachs for giving us a great opportunity to think about this perplexing issue. After the jump, I will offer my reasons for thinking that, at least as used to justify the Concealed Carry Reciprocity Act, Sachs' theory is not a very persuasive way to keep Congress' powers within reasonable bounds. The problem springs from what I take to be a more general problem with originalism (whether the "New" textualist version of Solum & Co. or the older more intentionalist variety): The focus on very specific semantic or historical sources does not leave much room for explaining why the theories it unearths make any pragmatic sense. Sachs' theory (if I am reading it correctly) seems to give Congress virtually unlimited power to declare the substantive "effect" of states' "public acts, records, and judicial proceedings" in other states. By allowing Congress (for instance) to export libertarian "concealed carry" rules to (for instance) New York City, Sachs' view of Article IV would destroy any meaningful limits on Congress' power to impose a single, uniform law on the nation, even w.r.t. areas like criminal law where the needs for subnational diversity would seem to be obvious. It is impossible for me to imagine why the U.S. Constitution's framers and ratifiers who were deeply skeptical of national power would adopt such a view -- but, even if my imagination were better, it is absurd to think that we should live under such a preposterously centralized regime without a thought about the practicalities of such rules for no better reason than what a bunch of lawyers said about Mills v. Duryee between 1813 and 1822.

1. What does the Concealed Carry Reciprocity Act of 2017 provide?

As an entry point into the practical problems with Sachs' theory, it is useful to start with the Concealed Carry Reciprocity Act, becauuse the CCRA provides a good illustration of senseless centralization. The CCRA provides that anyone is entitled to carry a concealed handgun in any state that authorizes any sort of "concealed carry" permit if such a person either (1) has a "concealed carry" permit from any other state or (2)"is entitled to carry a concealed firearm in the State in which the person resides." Thus, a resident of a libertarian state that hands out "concealed carry" permits with minimal oversight is entitled by the CCRA to carry their concealed handgun into a state that heavily regulates "concealed carry" permits, allowing such permits only under very limited circumstances. In effect, such a migrant would not only carry a gun with them wherever they traveled but also their domicile state's gun laws as well.

2. Why is the rule of the CCRA ridiculous?

Pause for a moment to imagine the strangeness of such a choice-of-law regime. Two people carry identical handguns into Times Square. One person is from Texas, where oversight of concealed firearms is minimal. The other is a New York resident, where the right to a "concealed carry" permit is much more restricted. Under the CCRA, the Texan would be absolved of the normal duty to comply with the penal laws of the territory where she is present: She would carry Texas's libertarian regime with her like a little personal rain cloud floating over her head. The New Yorker would still have to obey New York law. In effect, two sets of criminal laws would vie with each other on precisely the same street corner. The NYPD could collar their own resident for illegal possession but would have to let the Texan go.

3. What's the Article IV, section 1 argument that Congress can export any state's rules to all other states in the name of "full faith and credit"?

To justify this congressional power to export one state's legal regime into the territory of another, Sachs, Baude, and Barnett rely on Article IV, section 1, which confers on Congress the power to "prescribe the manner in which [other states' public] acts, records, and proceedings shall be proved, and the effect thereof." Apparently, they take the position that Congress has pretty much unlimited power to define what "effect" one state's laws should have in the territory of another. Their suggested statutory language, for instance, seems to endorse the view that Congress can require one state to give full faith and credit not merely to a "concealed carry" permit issued by another state but also to the "public acts" of other states. Suppose, for instance, that I travel to NYC from a "constitutional carry" state like West Virginia where individuals have the right to carry a concealed firearm if they have the right to bear arms, hidden or overt, at all. Even though I have no specific permit with my name on it authorizing me to bear any weapon, my West Virginia driver's license suffices to allow me to defy NYC's rules on concealed carry.

This sort of logic goes far beyond gun permits. If Congress really has an Article IV power to authorize any person to export their state's libertarian regime to other states, then Congress could decree that a Texan could move to NYC from Houston (where there is no zoning) and demand that the New York City Planning Commission give "full faith and credit" to her Texas property rights, which allow a skyscraper to be built anywhere permitted by covenants and nuisance law. Congress could likewise confer on Nevadans the right to hire prostitutes in Mississippi or give Coloradans the right to toke up a blunt on the streets of a village in Alabama.

Did the framers of Article IV, section 1 really believe that Congress could confer any effect whatsoever on the "public acts" of one state in the territory of all the others? So far as I can tell, Sachs', Baude's, and Barnett's position contains no limit on Congress to avoid such absurdities. To be fair, Sachs' article (at page 1207, note 27) expressly (and wisely) disclaims any view about Congress' power to require each state to enforce the "public acts" (meaning statutes) of other states: Sachs is focused only on "records" and "judgments." Sachs', Baude's, and Barnett's letter does not contain any such limit. If one is a textualist invested in "original public meaning," however, it is difficult to explain any distinction between Congress' power to define the effects of a permit and the effects of a statute: Both are just nouns in the same sentence of Article IV, section 1. Moreover, putting the text to one side, it is not obvious why it makes any sense to give more extra-territorial effect to a permit than to a statute. Suppose that a state automatically hands out "concealed carry" permits to anyone who has reached the age of 18 and is otherwise eligible to bear arms. Why should this bit of individualized paper be entitled to more legal weight in another state than a general statute enforcing a "constitutional carry" regime without requiring individual permits?

4. Does Sachs', Baude's and Barnett's view make any functional sense?

From my decentralization-loving perspective, Sachs, Baude, and Barnett have announced a congressional power that seems senseless from any functional point of view. Most criminal laws follow the choice-of-law rule of lex delicti because the harm against which they protect is territorial. For that reason, the SCOTUS has long held that each state is normally free to enforce its own laws in its own courts if the underlying conduct bears some substantial connection to that state's citizens or territory. The idea that the criminal (or zoning, or liquor, or other regulatory) measures of one state should be given extra-territorial reach into the territory of another state is so absurd that no one has bothered defending such a view -- at least, not until Sachs, Baude, and Barnett wrote their letter to Representatives Amash, Hudson, and Gowdy.

If the text of the Constitution were crystal-clear that Congress had such an utterly unlimited power, then I guess I would swallow hard and enforce the letter of the law. Absent such a plain statement, however, I am inclined to abandon formalism and ask whether any sensible framer would ever dream of conferring such a power on any national legislature. Given its originalist and historicist commitments, there is not a word about such practical considerations in Sachs' article. Instead, Sachs gives us a really interesting narrative about how politicians and lawyers thought about Mills v. Duryee between 1813 and 1822.

Don't get me wrong: I have an antiquarian lawyer's love for this stuff. Sachs' article is a fascinating read. But I cannot imagine any republic (except, perhaps, a republic consisting solely of law profs and historians) consenting to being governed by such arcana, when the practical consequences of the congressional power that is apparently being defended are so odd. Surely there ought to be a page or two spared for the question, "does Congress' power to prescribe the effects of each state's 'acts' have any limits consistent with some sort of functionally defensible theory?"

Posted by Rick Hills on July 16, 2017 at 08:35 PM | Permalink


Thanks, Congress for taking unlimited power to declare state's laws.

Posted by: gunsafely | Jun 22, 2018 2:09:44 PM

I am NOT persuaded that the Full Faith and Credit clause is the proper source of Congressional power to require states to honor other states' gun-carrying permits.

However, I think Prof. Hills' examination of the issues is slightly unclear. The question revolves around a critical distinction between acts and persons.

All states allow some private persons* to carry concealed guns under most circumstances (e.g., typically excluding carry into prisons, while drunk, etc.). Some states structure their gun-carrying laws mainly as prohibitions to which exceptions are made for permit-holders, and others chiefly as permissive regimes from which some persons (e.g., felons) are excluded. Either way, the mere act of carrying a concealed gun in public is generally not a crime for a person who has a permit.

Many states issue gun-carrying permits only to their residents, or residents plus a few others. Many states (though notably not some of the most populous, like California and New York) honor permits issued by some other states, but under a bewildering variety of essentially-arbitrary standards. For example, Wyoming does not issue permits to non-residents and does not honor permits from Washington State (which are issued after a fingerprint-based background check), but a Washington resident intending to visit Wyoming may obtain a non-resident permit from New Hampshire (by mail, upon a merely name-based background check) which Wyoming does honor!

Prof. Hills' remarks seem to give the impression, perhaps inadvertently, that some Congressmen want to allow, e.g., Texas residents a form of extraterritoriality with respect to the criminal laws in other states. That seems incorrect to me. Forcing states to honor other states' gun-carrying permits with respect to persons is not the same as forcing them to allow non-residents to commit criminal acts such as murder or assault or even (for example) carrying a gun into a prison. Those states which currently honor gun-carrying permits from other states all enforce exactly the same conditions and restrictions on gun-carrying against both residents and visitors.

To revisit the obvious analogies, every state generally makes driving a car on public roads a crime for persons who lack a license. But driving is not malum in se: the licensing laws are aimed at disqualifying untrustworthy persons (e.g., children, convicted drunks, those unable to pass simple skill tests). There is general agreement on disqualifications from driving so states are pleased to honor visitors' driving licenses from other states (and even many foreign countries!) though they are issued under somewhat different rules. Visiting drivers are still expected to obey local rules of the road (lane use, speed limits, etc.).

Carrying a concealed gun is not malum in se either, and not a single state thinks it is. Empirically all the states do a good job of disqualifying untrustworthy persons from gun-carrying permits (in every single state, gun-carry permittees are statistically less likely to be arrested for or convicted of crimes than even sworn police officers). States which do honor visitors' permits from other states enforce the same criminal laws and time/place/manner gun-carrying rules on both resident and visiting permittees.

States which refuse to honor visitors' gun-carry permits are really applying a form of local favoritism or protectionism which is not justified by public safety concerns. Much more importantly, states which refuse to honor visitors' gun-carry permits equally with residents' permits deny visitors the right which residents enjoy to defend themselves lawfully against criminal attack-- and so deny visitors the equal protection of the laws to which the Fourteenth Amendment entitles them.

I think Congress may force states to honor visitors' gun-carry permits issued by other states equally with the permits they issue to their own residents, either under the Second Amendment and the Privileges and Immunities clause (Article IV) or under the Privileges or Immunities and Equal Protection clauses of the Fourteenth Amendment. I think Congress could rely on the Full Faith and Credit clause to prescribe rules by which states would recognize valid gun-carrying permits from other states.

Exercising Full Faith and Credit clause power Congress might, for example, prescribe a standard format for proof of a gun-carrying permit. Would Full Faith and Credit clause power let Congress prescribe minimum qualifications (say, a fingerprint-based background check) for gun-carrying permits which other states would have to recognize in a documentary sense, if they did (or did not) propose to honor them? I am not sure about that, though I think it possible. But I think even setting qualifications for interstate-valid permits under the Full Faith and Credit clause would not by itself force states to treat valid (in an documentary sense) permits of non-residents as equivalent to residents' permits; that is, make states honor non-resident permits. To do that, I think Congress must (and could) exercise other powers the Constitution confides to it.

(Perhaps Congress could use Full Faith and Credit power to reduce the confusion around which states' permits are valid in those other states which choose to honor any non-resident permits (e.g., minimize the Wyoming versus Washington and New Hampshire mess).)

I think the question of honoring non-resident licenses for doctors, etc. can be distinguished pretty effectively. Professional licensing is (in theory**) about regulating the provision of services which few people are qualified to perform safely and which the licensees intentionally perform for (or upon) their patients or clients all day long. Employers or clients of licensed professionals are expected to examine and rely upon their credentials, and might not be able to validate credentials issued by faraway authorities. Licenses to drive a personal car on public roads or to carry a concealed gun are used to regulate individual behavior which most people are qualified to perform safely and which affects persons other than the driver or carrier only incidentally. Non-professional driver licenses or gun permits are examined only upon suspicion of wrongdoing. States have a much stronger interest in restricting the qualifications and credentials of persons performing dangerous professional services than of people engaged in unremarkable private activities.

(I use "incidentally" in the formal sense-- not to elide the potential harm a misbehaving driver or gun-carrier might conceivably do, but to emphasize that the public-safety risk is statistically quite small. It is larger for professional actors (e.g., truck drivers, security guards)-- which is why they are more intrusively regulated. It is miniscule for permitted gun-carriers.

(Indeed, simply carrying a gun does not threaten the public. The risk to the public is that some gun-carrier will draw a gun without good cause and unjustifiably shoot someone with it, an act which permittees almost never perform, though persons universally considered unqualified to obtain permits (that is, criminals) occasionally do. Criminals prepared to commit murder are not, sadly, deterred by gun-permit laws.)

Although it doesn't matter much, I did find Prof. Hills' discussion of Texas and New York gun laws a bit confusing. Texas requires each applicant for a gun-carrying permit to pass background checks, complete a formal training course, and pass both written and practical (live-fire) exams (see https://www.dps.texas.gov/RSD/LTC/faqs/index.htm ). However, New York City police merely require each applicant for a gun-carrying permit to tender a suitable bribe (see https://www.nytimes.com/2017/04/25/nyregion/3-former-police-officers-and-a-former-prosecutor-are-charged-in-widening-corruption-investigation.html?_r=0 ). (Even without the bribe, New York only requires background checks, not training or examination of applicants.) Exactly how is Texas' "oversight of concealed firearms" "minimal" while New York's is "much more restricted?" The types of places where even permittees may not carry guns are similar in both States, as are the basic rules of self-defense and the laws against brandishing, assault, battery, and murder.***

*The present discussion is not about various categories of police officers or security guards.

**Of course most state occupational licenses are just protectionism for politically-successful rent-seekers (florists, anyone?). But the mixed cases such as medical licensing in which there really are public-safety considerations will ensure that the Supreme Court never pronounces occupational licensing laws categorically unconstitutional.

***The critical difference between New York or California(!) and Texas is that New York and California invest local politicians with practically unreviewable discretion to issue or withhold gun-carrying permits, so those politicians issue permits strictly as favors, often in return for bribes. Texas applies objective standards for permit issuance and has no favoritism or bribery problems. Again, standards for the public conduct of permittees are virtually the same in every state. The question isn't about acts, it's about persons.

Posted by: Veracitor | Jul 25, 2017 6:10:32 PM

"If your ... license to practice medicine [has] to be recognized in every state"

I don't think this is true.

There's no reason it shouldn't be, mind you, given physician licensing requirements are considerably more uniform across the states than, say, attorney licensing requirements.

Posted by: concerned_citizen | Jul 21, 2017 3:59:17 PM

Regarding the comments from Biff and M.Rad, I recommend Paul Finkelman's "Imperfect Union," a monograph on comity and slavery. The bottom line: There was complete dissensus as to what either Article IV's FF&C clause or it's P&I clause required of states regarding either free blacks (moving South) or slaveowners (moving North).

Jeffrey, thanks for referring me to your article. I've now had a chance to read it and am convinced that the history leans as closely in your direction as in the direction of the "evidentiary" theory. Perhaps my reaction, however, is colored by my prior: The notion that anyone prior to 1865 thought Congress had an unlimited power to do anything strikes me as implausible. Southerners, especially between 1831 (Nat Turner's Rebellion) and the Civil War jealously guarded state prerogatives, ceding the bare minimum to Congress even to enforce the Fugitive Slave Clause or ban "incendiary" (i.e. Abolitionist) literature from the U.S. mails. Calhoun challenged the legality of the Department of the Interior in his last years. The notion that they would have accepted Stephen Sachs' theory strikes me as ...unlikely.

My bottom line is that the Constitution's text and history is too under-specified to answer these sorts of questions at the level of granularity that these sorts of disputes require. It was deliberately written to be ambiguous on these sensitive issues, to overcome opposition that otherwise would have put its ratification at risk.

That's why I am not an originalist of either the intentionalist or semantic variety.

Posted by: Rick Hills | Jul 21, 2017 5:29:32 AM

I do not think that FF&C protected slave owners in NY. I think there was a doctrine that merely passing through free territory does not free a slave, as opposed to living in free territory, which was assumed, until Dred Scot, to make a slave free.

If it was FF&C that protected slave owners passing through NY, it should protect them if they moved to NY also, thus making NY (and every state) a slave state.

Posted by: biff | Jul 21, 2017 12:59:22 AM

Heh, the 2A complicates using concealed-carry reciprocity as a vehicle to examine the limits of FF&C, but I think I have an historical example that is just as hot-button but without 2A complications: the interstate transport of slaves. Slaves would not be freed merely due to being transported through free states, and indeed the Port of New York, being at the center of a hub-and-spoke coastal shipping system, often had such chained-up "cargo" on layover between two ports in the South, to the great consternation of abolitionists there. Slaveholders in 1850 seemingly had more protection under FF&C than gun owners today.

Posted by: M. Rad. | Jul 20, 2017 11:10:57 PM

"See Corfield v. Coryell."

How much is that good law per recent P&I Clause case law?

Posted by: Joe | Jul 19, 2017 1:05:38 PM

I am also confused by how any of this is really "originalist" in an original public meaning sense. To me, the text is clearly "underdeterminate," meaning that the original public meaning is consistent with various different meanings. Although post-ratification history (which is what Sachs' paper is all about) is certainly relevant when construing the text, it is not necessarily decisive. I think Rick (and my paper) are therefore correct to look beyond history to construe FF&C.

Posted by: Jeff Schmitt | Jul 19, 2017 8:46:30 AM

I completely agree with Rick's post, for the reasons I explain in the following article: A Historical Reassessment of Full Faith and Credit, 20 GEO. MASON L. REV. 485 (2013). https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2015509

In my view, Congress's power to prescribe the effect of state acts was historically understood to be limited by territorial-based principles of state sovereignty. From my reading of various eighteenth century sources, Congress had no power to make the laws of Virginia, for example, have substantive effect in New York.

For me, the most persuasive evidence that Congress' power is quite limited is the following: It was a core belief of virtually everyone in the antebellum era--from Lincoln to Calhoun and McLean to Taney--that Congress had no power to establish or prohibit slavery within the states. An yet, wouldn't Sachs' view of full faith and credit practically give Congress just such a power?

Here is a summary of this point from the intro to my paper: "The second limitation--territorial-based jurisdictional principles--provided a much more meaningful restriction on Congress’s power to prescribe the effect of state acts. Under prevailing concepts of jurisdiction, in most situations state acts were not thought to have had any binding effect outside of the territorial boundaries of that state. While states often recognized and applied the law of other states, doing so was thought to have been a voluntary act of comity. These jurisdictional limitations on the reach of state acts were believed to have been dictated by basic principles of justice and state sovereignty. To avoid violating these principles, Congress was able to give extraterritorial effect to state acts only in civil cases and only with the consent of the parties (though such consent could be implied). Moreover, Congress had no power to alter the common law rule that a judgment rendered without valid jurisdiction was void. Although these jurisdictional rules were not derived from any specific provision of the Constitution, the Constitution was viewed very differently at this time, and basic legal concepts such as jurisdiction were generally thought to supplement and help define Congress’s enumerated powers."

Posted by: Jeff Schmitt | Jul 19, 2017 8:41:34 AM

"Since the comments here seem to be delving into a Second Amendment debate and away from the issue at hand"

The very first word in the title of the post is "firearms". If you start a blogpost with "speech" and get angry when people talk about the first amendment, you're asking too much.

If you think the bill of rights doesn't protect individual civilian rights, just say so.

Posted by: Gun Owners of America | Jul 19, 2017 3:26:41 AM

I don't think the fishing license example works (or at least it's more complicated than the present example). Fish, like oysters, belong to the people of the state and a state can treat out of state residents differently. See Corfield v. Coryell. Maybe Congress could still override a state's interest in its own property, but that seems to be opening a whole other can of worms entirely.

"A broad reading of the Commerce Clause would make it constitutional (it is restricted to firearms that have been shipped or transported in foreign or interstate commerce)."

It wouldn't even really have to be a particularly broad reading. Forget the gun. Simply by traveling to another state the carrier is engaging in interstate commerce.

Posted by: jph12 | Jul 18, 2017 11:48:16 AM

Since the comments here seem to be delving into a Second Amendment debate and away from the issue at hand, I thought it could be useful (to myself at any rate) to imagine a similar scenario on a much less politically charged topic.

Imagine you have two states, both of which require fishing licenses for anyone who wishes to fish on public land.

State A has minimal, if any, regulations on fishing and issues licenses to anyone who shows up and pays the application fee.
State B has very strict fishing regulations, based on a history of ecological problems in the state, that limit the size and number of fish that can be hunted (among other things). They issue licenses only after applicants demonstrate an in-depth understanding of the state's fishing regulations and the needs of its ecosystem.

So now the questions.
1) Could Congress constitutionally pass a law saying that any state that requires a fishing license must treat licenses acquired in other states as equivalent to those issued by the state itself?
2) Could Congress constitutionally pass a law that says that states must only enforce the fishing regulations against a fisher that were propagated by the state that fisher's license came from? In other words, if State B only allows you to catch 3 fish a day, could a resident of State A who is licensed in State A, but fishing in state B, catch unlimited fish without any legal consequence?

The answer to 1 under Profs. Sachs, Baude, and Barnett's view seems to be a pretty clear yes, and I can see and understand those arguments. But I don't see a way to make a principled distinction between 1) and 2) under the professors' theory, and 2) seems to be several steps too far. Can the Constitution really be read to allow Congress to delegate its national lawmaking authority to the least-regulatory state in the nation? Because that's essentially what this creates - a system where the most permissive state in the nation gets to set the de facto rules for every state.

That doesn't seem to purport to my understanding of federalism in the Constitution, but I am not an expert in this area and it's possible my understanding of federalism is completely at odds with what is plainly Constitutionally required. The professors in question make a good argument that's so. Still, I think the issues are easier to see and debate when we're not dealing with the contentious gun issue at the same time.

Posted by: J | Jul 18, 2017 10:41:11 AM

"you don't need the permit to exercise the free speech, but to hold an event"

The event very well might be "the" free speech at issue, the particular assembly that is being exercised to express the speech in question. The restraints here very well might be too strict, but they are long accepted law and on some level are practicably necessary.

The reach of the ability to carry in public arose in a 9CA case and I do think at some point SCOTUS will have to handle it directly.

Posted by: Joe | Jul 18, 2017 10:04:43 AM

I note that there are other constitutional theories to defend the proposed law. A broad reading of the Commerce Clause would make it constitutional (it is restricted to firearms that have been shipped or transported in foreign or interstate commerce). If it goes to the Supreme Court the liberal justices would presumably have to uphold to law on that ground so the FF&C argument would only have to convince one conservative justice.

Posted by: Jr | Jul 18, 2017 7:40:24 AM

^ True, I should have been a bit clearer. When I said transport concealed weapons, I meant across state lines. I think the second part of my post makes clear that another question is whether it is constitutional to require state licenses for concealed carry, since one already has the constitutional right to 'bear' arms.

Posted by: YesterdayIKilledAMammoth | Jul 18, 2017 6:33:27 AM

"While 2A gives citizens the rights to possess and "bear" arms, that doesn't necessarily mean they have the right to transport concealed weapons." YIKAM

True. Just like you don't have a right to publish a book or cast a ballot anonymously, or have an abortion without telling your parents and/or spouse; you don't have a right to carry a weapon without announcing it to everyone around you, i.e., carrying it openly.

Posted by: See Through Backpacks | Jul 18, 2017 5:27:23 AM

Dick and Clapper laid down rules for invalidating state choice-of-law rulings that proved almost completely unadministrable. The Supreme Court's caselaw on constitutional limits on state choice of law since then has a certain lost-in-the-wilderness flavor. There may be areas where purposivism without a clear sense of purpose can prosper; this isn't one of them.

Posted by: James Grimmelmann | Jul 17, 2017 10:34:17 PM

^ The parade example is apples and oranges, since you don't need the permit to exercise the free speech, but to hold an event. The point about 2A and concealed weapons is quite right, though. While 2A gives citizens the rights to possess and "bear" arms, that doesn't necessarily mean they have the right to transport concealed weapons.

However, the better question is whether requiring licenses to carry concealed weapons is actually constitutional since 2A gives one the constitutional right to carry and "bear" arms. It seems the most that could be done is that states could outlaw concealed weapons if they wish in the same way that territorial towns in the Old West used to outlaw carrying weapons in town.

Posted by: YesterdayIKilledAMammoth | Jul 17, 2017 8:37:58 PM

"If you don't need a license to speak or worship because the first amendment guarantees those rights, then you don't need a license to carry a gun or get a trial by jury--because those are also protected by amendments."

The Second Amendment has certain requirements that don't apply to the First Amendment. For instance, children and felons have more rights under one than the other. The 2A has certain criteria where a "license" is acceptable. It also begs the question, of course, about the reach of concealed carry rights, which under Heller itself was assumed to be different at least to some degree. There is not some complete overlap.

And, you sometimes need a permit for First Amendment purposes, such as a parade or march.

Posted by: Joe | Jul 17, 2017 7:22:05 PM

If your driver's license and license to practice medicine have to recognized in every state, so does your license to carry a weapon.

If you don't need a license to speak or worship because the first amendment guarantees those rights, then you don't need a license to carry a gun or get a trial by jury--because those are also protected by amendments.

The point is that the second amendment and the right to keep and bear arms are not exceptions. Whatever rules apply to other rights also apply to this right.

Posted by: NRA | Jul 17, 2017 5:41:12 PM

So, about my question, it sounds, if I can very crudely summarize, like you would have the Court read the FF&C power as bounded by something that looks sort of like existing choice-of-law common law. Perhaps an argument for that approach, other than that giving Congress boundless power to enact choice-of-law gerrymanders in certain areas where it wants to create races to the bottom (or the libertarian top, depending on how one sees things) is pragmatically loony, would be a common-law-constitutionalist argument. As in, centuries of common law in this country about criminal choice of law and locus delicti bar Congress from creating some contrary rule. That might do more for some people and seem a little less like "making it up" than just arguing from the pragmatic craziness of the alternative.

I have to say, I'm confused by Sachs's comment, because it starts by accepting your non-originalism, and then claims that even so, one just has to offer a better legal explanation for deviating from the FF&C's ostensible original meaning than offering pragmatic arguments against it, and needs to show that something "new has happened" since the Constitution's ratification. But what more does a non-originalist of a certain stripe need? The following seems like a pretty cognizable argument for a non-originalist: whatever originalists say about the Fourteenth Amendment, Brown, and gender discrimination, they have a pretty hard time showing us what about the original meaning of any part of the Constitution forbade federal racial discrimination or gender discrimination. Nevertheless, we would all like the Constitution to forbid federal racial and gender discrimination. Now, we could have an Ackermanian theory about some constitutional moment that amended the Constitution on this point without formally doing so, but I think most non-originalists, without adopting that theoretical apparatus, will just say, more or less, that today the Constitution must be read to forbid federal racial and gender discrimination because an alternative interpretation would permit rank injustice, without claiming that something "new has happened" since the ratification of the Fifth Amendment beyond a new appreciation that the sorts of laws the framers failed to ban are immoral and anti-democratic and so forth.

Posted by: Asher Steinberg | Jul 17, 2017 5:32:31 PM

Surely, Joe is right: The devil is in the details. I'd say that Congress could require states to give sojourners a reasonable period of time during which they can register their cars, firearms, or other personalty in accordance with the local laws. But I'd read into the Article IV section 1 power an implied limit that Congress must act as an honest broker among the states and cannot extend the effects of state laws way beyond the bounds of reasonable comity merely because Cpongress happens to like such laws.

James G., are you saying that Brandeis did not indulge in open-ended purposvism in Clapper and Dick or that these decisions, being wrongly decided or poorly reasoned, are bad role models for constitutional interpretation?

Posted by: Rick Hills | Jul 17, 2017 4:26:35 PM

Clapper and Dick don't exactly strike me as compelling arguments for open-ended purposivism.

Posted by: James Grimmelmann | Jul 17, 2017 4:16:16 PM

I think the motive for this was the case of an unfortunate woman stopped on an Interstate while passing through New Jersey. She tells the officer that she has a concealed carry permit and a weapon in the car (all obtained perfectly legally). However, it was in contravention of New Jersey law and they threw the book at her.

Posted by: Art Deco | Jul 17, 2017 2:40:23 PM

I understand the attempt is setting for broad principles in respect to a specific proposal and a response to a specific argument.

But, more broadly, I think concern for the rights of interstate travelers is stronger when dealing with carrying a gun interstate as compared to references to prostitution or property rules back home applied to where you are at the moment. As to the latter, a skyscraper has more permanence and local effects than rules regarding carrying a gun temporarily.

The logic of prudentially applying the rules here, including looking at the Constitution as a whole, is appreciated. I think in fact the Second Amendment (though changed somewhat by the Fourteenth) arguably encourages respect for local discretion in this area more than others. Unfortunately, such federalism concerns were not addressed very well when the matter was addressed in Heller and McDonald. OTOH, individual rights in this area are broader as compared to some other license.

I respect some national law that sets forth some sort of floor here -- e.g., a person is allowed to travel thru N.Y. with a licensed disabled firearm in the trunk of one's car and if they are stopped, they cannot be arrested because local law is much more strict there. The devil there would be the details.

Posted by: Joe | Jul 17, 2017 1:37:08 PM

Stephen writes:

"The Constitution could have dealt with these [conflicts of law] problems in different ways" and that one way was to give federal courts (a "neutral forum") the power to hear interstate cases, relying on the prevailing rules ... until a neutral legislature [aka Congress] supplies some other rules instead." As for constitutional limits on this power of Congress to declare the "effects" of state laws, Stephen concludes: "there's also no evident limiting principle, other than the ones we make up."

I guess I agree with tha last point -- with the proviso that we pragmatists believe that the Court is always making up such limits, that, indeed, making up limits is how the SCOTUS normally proceeds as far as the Constitution is concerned. I earlier posted on why this "purposivist" attitude towards the Constitution makes sense given the method by which it was ratified (up or down vote on an unamendable draft prepared in secret by persons not authorized to do so): http://prawfsblawg.blogs.com/prawfsblawg/2017/06/does-article-viis-up-or-down-process-weaken-the-case-for-constitutional-textualism-ie-new-originalis.html

If "textual" mandate is needed here, I'd assume that the idea of the enumeration's presupposing something not enumerated could serve -- with the proviso (hardly heroic) that that "something" ought to make some functional sense. In Bradford Elec. v. Clapper and Home Insurance v. Dick, the Court during the 1930s fabricated without any real textual guidance some limits on states' extending their own laws "extra-territorially" using the Due Process and FF&C clauses. I do not see why they could not do the same with Congress' power to prescribe "effects." If such open-ended purposivism was good enough for Brandeis (who wrote both Dick and Clapper), then I guess it is good enough for me.

But all of these foundational concerns, of course, require another post.

Posted by: Rick Hills | Jul 17, 2017 1:19:04 PM

Maybe the Originalist "hey, Abbot," but what about the 10th Amendment? A simple truism, as they like to say?

I'm resisting the urge to respond more fully until I've actually read the journal article.

Posted by: Crispian | Jul 17, 2017 12:31:47 PM

I can't speak for Will or Randy, but I appreciate Prof. Hills's careful read of our letter, and his kind words for my paper on the Full Faith and Credit Clause. I'm puzzled, though, by his approach to constitutional argument.

Hills says he's "not an originalist"--which might in time be forgiven! Yet his target isn't the original Constitution. He doesn't claim that anything new has happened in the centuries *since* the Constitution's adoption to shrink Congress's effects power, much less to take it away. Maybe Congress never had such a power; that's a respectable (and originalist) argument to make. But if it did then, and if it doesn't now, there ought to be a better legal explanation than just what's good or bad about concealed-carry, or "pragmatic" arguments about the best possible federal regime. Federalist ideal theory is useful, but one can't call it U.S. constitutional law without first taking a view on what the U.S. Constitution actually did.

Any federal system has to have a way of deciding what each state gets to decide. Do they have to let you drive with an out-of-state license? What if your car has only a back plate, but local law requires front plates too? What if your windows are legally tinted to avoid the Texas heat, but they're too dark for the law-enforcement needs of Minnesota? What if the formalities required to make a valid will are different in the state of the decedent's domicile, or where the will was signed, or where the property is located? Who sets the duties of an out-of-state corporation to local stockholders, or the custody rights of a foster parent taking her family on a cross-country trip?

So long as our choice-of-law rules look to anything other than territory, there's always the possibility of two sets of laws vying with each other in the same place. Maybe it's a bad idea to let people carry concealed weapons, or to let a lawful permitholder carry them across state lines. (Our letter doesn't speak to the bill's merits, on which I'm professionally agnostic.) But the difference between that question and these others is one of degree, not of kind.

The Constitution could have dealt with these problems in different ways. It could have let each state decide for itself, creating the potential for endless fights over choice of law. Or it could have written out a detailed choice-of-law code in Article IV, or have fixed the prevailing rules in constitutional amber. Or it could have allowed for a neutral forum to hear interstate cases, relying on the prevailing rules (and applying state laws "in cases where they apply") until the states can agree on their own, or until a neutral legislature supplies some other rules instead.

I think there's good evidence it did the latter—that "Acts" included the acts of state legislatures, and that Congress's power to "prescribe * * * the Effect thereof" referred to their substantive effect, not just their effect as evidence in court. Thus, Congress might let out-of-state plaintiffs seize local property in execution of another state's judgments (as Madison suggested), or let debtors cancel their local debts based on another state's insolvency acts (as Wilson proposed), or let bail bondsmen or estate administrators exercise their state-conferred powers across state lines (as was soon proposed in Congress). Maybe this kind of power was the wrong choice at the time -- or maybe it responded to concerns we no longer see as pressing, sort of like the Duty of Tonnage Clause. But my read of the evidence is that this is the choice that was made.

Hills is right that this is a pretty broad power, and I agree that it's surprising to find it in a rarely-used clause of Article IV. (I was surprised!) All else being equal, that would be a reason to wonder if this reading is too broad, if some narrower power was conferred instead. But there's also no evident limiting principle, other than the ones we make up. The Constitution's only requirement is one of evenhandedness: as the Clause specifies, these have to be "general Laws.” That's not so bad, as this is a near-perfect topic for political safeguards: Congress is composed of representatives elected from all the states, and of senators equally drawn from each of them (and, at the time, directly chosen by state legislatures). If they want to agree on whether state concealed-carry permits can work across state lines, they can. The Constitution also lets Congress levy unfair taxes or declare unjust wars, so permit reciprocity may be the least of our problems. And the very fact that Congress has let this power gather dust, after toying with it soon after the Founding, suggests that the political safeguards here are pretty strong.

Instead, Hills would have the courts strike down properly enacted statutes based on whether Congress's solution lines up with a preconceived notion of state interests, derived not from the Constitution or preexisting legal rules but from some other (and unspecified) source. That might well mean striking down the few efforts Congress has already made. Can we really say that the state where a mother and child live has no greater interest in their custody rights than the state they left five months ago? Or that the state whose family courts are asked to enforce a child support order has no greater interest in its interpretation or in the statute of limitations than the rendering state? (Even a driver's-license reciprocity act would be in danger: surely California's interest in its own roads is greater than Nebraska's interest in allowing licenseholders to drive there!)

There's no rule of law requiring that the Constitution has to make sense, any more than the tax code does. And weighing "pragmatic" concerns above "semantic" ones, as Hills proposes, is a gentle way of saying that we should ignore the cost-benefit decisions that other people may have written down in favor of the ones that he's writing down now. Maybe Hills's interest-based approach is the best way to go; but I don't think he establishes that it was made law by the adoption of the Constitution, any more than by the enactment of ERISA or of the Telecommunications Act of 1996. If Hills thinks it's a good idea, he's welcome to persuade two-thirds of each House and three-fourths of the states to agree. Otherwise, "that's just, like, your opinion, man." There are lots of good ideas in the world, and unfortunately few of them have been yet enacted as part of the Constitution of the United States.

Posted by: Stephen Sachs | Jul 17, 2017 11:30:45 AM

Asher, the scope of Congress' power to define "effects" under Article IV, section 1 is a mystery that Congress' inaction under that constitutional provision has blessedly relieved me from ever being obliged to solve. Despite my kibitzing, hats off to Sachs for trying to offer a solution.

Here are four quick observations that you can apply to the PKPA and similar statutes:

1). I suppose that a "pragmatic" as opposed to "semantic" solution would limit Congress' Article IV power by requiring that the states the acts of which are given FF&C by federal statute must have an interest in having their laws apply at least equal to the states the laws of which are being set aside by that federal statute.

2). I suppose as well that the SCOTUS would give Congress a great deal of leeway in defining equality of those relative interests, subject to some outer limit based on either Due Process (see Home Insurance v Dick (1930) or FF&C (see Bradford Electric v. Clapper (1932)).

3). I suppose that a "rendering" state's investment in issuing a particular decision for specific litigants, applicants, licensees, permitted, etc., would be relevant to such a comparison of interests. Hence, judgments get more FF&C than statutes.

4). Finally, I suppose that states' interests in not having their laws set aside in favor of a sister state's laws are at their weakest when the laws in question are "private laws" intended to benefit the parties to a particular transaction. Thus, private citizens can waive their state's contract laws through a choice of law clause but cannot waive their state's criminal laws through such an agreement.

None of these types of considerations would have much appeal for originalists -- which is why I am not an originalist.

Posted by: Rick Hills | Jul 16, 2017 10:59:41 PM

I think I agree with this entirely, as far as it goes, but I'm a little curious about what powers you think Congress does have under the Full Faith and Credit Clause to make choice-of-law rules. While the text of the Constitution isn't crystal-clear that Congress has the power Baude, Sachs and Barnett argue, it does seem crystal-clear that it has some sort of power in this area. What do you think of the examples they give in their letter? I agree with you that it's perfectly permissible to read the clause to give Congress less power in the way of enacting choice-of-law rules than it does as far as making rules about the law of judgments, so take the one example they give concerning actual laws. As they put it, perhaps overstating the case a bit, "the Full Faith and Credit for Child Support Orders Act requires certain state child support laws to be given their full effect in every other state. See 28 U.S.C. 1738B(h)." If you go to 1738B(h), we find this fairly unintrusive choice-of-law rule:

(h) Choice of Law.—
(1)In general.—
In a proceeding to establish, modify, or enforce a child support order, the forum State’s law shall apply except as provided in paragraphs (2) and (3).
(2)Law of state of issuance of order.—
In interpreting a child support order including the duration of current payments and other obligations of support, a court shall apply the law of the State of the court that issued the order.
(3)Period of limitation.—
In an action to enforce arrears under a child support order, a court shall apply the statute of limitation of the forum State or the State of the court that issued the order, whichever statute provides the longer period of limitation.

Do you think 1783B(h) is constitutional, and if so, is it because it concerns the enforcement and interpretation of a preexisting judgment, because it generally respects the forum state's law subject to certain modest accommodations to the rendering state's law, because it's non-criminal (though domestic-relations law is, I take it, traditionally pretty local - there's even a domestic-relations exception to federal jurisdiction), or something else?

Posted by: Asher Steinberg | Jul 16, 2017 9:18:15 PM

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