Wednesday, November 3, 2010

Virginia Reciprocity

There are a lot of things that are nice about living in Virginia. For a gun owner, it is nice to live in a state that has reasonable gun laws, and has a constitutional right to Keep and Bear Arms enshrined in the state charter.

Up until 1950, the act of carrying a handgun in Virginia was a complete non-issue. In 1950, the legislature passed into law restrictions on concealed carry ("may issue"), but left open carry alone in order to satisfy the constitutional requirement. As the years progressed, through Jim Crow and the Civil Rights fights, these laws became more and more onerous for the average citizen. Unless you were politically connected, white, wealthy, or powerful, a carry permit was not going to be issued.

In 1995, Virginia joined a handful of states changing their laws to "Shall Issue", and the legislature has been peeling back the regulations ever since (over the vehement objections of the Democrats from Richmond, Fairfax, and Arlington county). Last year saw some of the most aggressive attempts to liberate the gun laws in Virgina, and many of these reforms passed. Many more were killed in a specially-formed committee of Henry Marsh's, which was created for the sole purpose of stopping the legislation.

Great, you say. Why are you telling me this, Newbius?

Here is why: Reciprocity. According to the Virginia State Police, Virginia has formal reciprocity agreements with 12 states. An additional 13 states have informal reciprocity with us. So, out of the total of 50 states, I can legally carry in 26 of them using my home state permit. What about the rest? Well, if I was a law enforcement officer I could carry using my status under LEOSA in all 50 states. Since I am not, I have to depend on bureaucratic dispensation...

OK, but where am I going with this? Well...50 minus 26 is 24 remaining states (plus DC) where my permit is not recognized. Several of these are Blue states where the right is essentially denied. These are Wisconsin, Illinois, California, New York, Massachusetts, Connecticut, New Jersey, Maryland, and the District of Columbia. Subtract these 8 states out of the mix, and that leaves 16 states (15 after Iowa becomes Shall Issue in January).

The remaining states in the US which have either Shall Issue permit laws, or are reasonable about their "May Issue" laws pretty much all have the same stance regarding recognition of the Virginia permit, to wit: "I'll recognize yours if you will recognize mine". Current Virginia statue requires any state which wishes to have their permits recognized in Virginia to have a permit process that is at least as onerous as ours, to have also constructed a 24-hour database sharing system, and to have adopted our prohibitions as well. This is ridiculous.

I have proposed to my Delegate that the statute be amended to strip out these requirements, and to grant recognition of another state's carry permits no matter where issued. The only caveats I would leave in place are restrictions on Prohibited Persons (at least until that is eliminated from Federal law), and persons who are under age. If another state has issued a permit, then we should recognize it.

Face it, every law-abiding person who complies with the carry permit process has had to prove he or she is not a prohibited person already. Most states also require some form of formal training. We should give full faith and credit to these states' permits, just as we do their drivers licenses. We don't require that other states adopt our driving standards before recognizing their licenses, do we? If we don't do this for the exercise of a privilege, why do it for a right?

I would love to hear some feedback on this one.




Obsidian said...

Re: Full faith and credit. Despite the plain language, which doesn't provide any exceptions, our Federal courts have interpreted FF&C to not include public acts, recordings, and judicial proceedings in conflict with the laws of the home jurisdiction. Because standards for issuing a permit differ, it could easily be argued in a court setting that such laws conflict with each other.

The best way to expand reciprocity is probably to continue what you're doing--talking to your state rep into relaxing VA's restrictions.

The unfortunate thing about Federalism is that we get a patchworks in the law like this all the time. When the Constitution was drafted, it would haven been less of a concern, seeing as how few traveled far, but we live in a different world now and perhaps the document should respond to dramatic changes in the human condition...what a novel idea... ;)

JB Miller said...

I enjoy VA carry as well.

It is so odd to me that I am a fine law abiding citizen on this side of the bridge, a felon on the other side.

Bubblehead Les. said...

Maybe they can get something passed under the New Congress using the Interstate Commerce Clause? Lord knows it been used under every excuse in the book to screw the American People. Just a simple one line law that says all States that have CCW must honor Citizens of other States that have CCW, since MacDonald says Self-Defense is a Universal Right. "Bearing Arms" doesn't mean standing still in one place, does it? Oohh, and if a State tries to stop you from transiting with your weapon from Point ma to Point B and you have to pass through Anti-Gun State C, can you say "what part of Free Transit don't you understand?"

Obsidian said...

That's a decent argument, Les--In a nutshell, the Lopez decision established that Congress may regulate the channels, instrumentalities, and activities substantially relating to interstate commerce.

While one could argue for a national reciprocity law and perhaps even draft one that would survive the Lopez test, it would probably bring about some unintended consequences. For one, it would be a blow against federalism--gun regulation may be national law, but permits are strictly a state and local area of power. Such a law would usurp power from areas that simply don't want reciprocity.

While inconvenient for the CCW crowd, surely the people of the several states have the right to create and determine gun permit regulations for their communities without interference from Washington?

Geodkyt said...

Well, Obsidian,

That argument of yours was tried in regards to racial discrimination in work, housing, voting, marirage, etc. Federal protection of actual enumerated rights trumpted state authority.

What part of "Keep and BEAR" is so hard to understand?

New Jersey has no more right to strip people (both their own citizens as well as out of staters transiting) of their enumerated rights because the state legislature has enshrined bigotry against "those people" (lawful gun owners) than Virginia had a right to decide that "those people" (blacks) could not be allowed to: marry white people, go to school with white people, eat sitting down around white people, vote without extra restrictions that didn't apply to white people, etc.

The Second Amendment enumerates my (preexisting) right to be armed for protection. The Fourteenth Amendment enumerates that my equal rights should be respected by ALL states, not just the Federal Government.

The fact that and urbanized population means that our judiciary and legislatures are primarily made up of people who have never seen a need to EVER own a gun, that does not mean that the right somehow magically vanishes, nor that teh "comfort level" of discrinatory bigots is now superior to enumerated rights the bogots don't like.

It's EASY to "fight" for popular rights. Like every empty headed Hollywood liberal who is touted as a "hero" for saying "F%^* Bush!"

The rights that need to be written down and actively defended by teh government are PRECISELY those ones that bigots think they can abridge, becuase they are locally unpopular.

Geodkyt said...

Oh, and before the "Well black people can;t take off their skin!" retort comes out, go ahead and change teh right denials from "blacks" to:


Until you get to a group that faced discrimination due to what was in their HEAD that you happen to agree with.

Obsidian said...

(this ended being a really long post. Sorry)


Before I start, I just want to make something clear: these aren't my arguements. I didn't make them up--I am telling you the Constitutional Jurisprudence of our Supreme Court. You don't like it--take it up with them.

Your argument regarding equal protection takes this issue in another direction: discriminatory regulations and laws. The Supreme court indeed can overturn laws it finds to violates the 14th Amendment, but it must first determine how closely to scrutinize the law in question.

It does so by looking at the group being discriminated against. In this case, let's say it's out-of-state gun owners. There are three tiers of scrutiny to choose from, and each tier traditionally protects certain groups.

The first is strict scrutiny. Racial discrimination falls under this category and it is damned hard to pass a law that will survive strict scrutiny--It pretty much has to be a national security issue in order to pass review (Korematsu being the one and only example I can think of).

The Second tier, intermediate scrutiny, protects gay people, old people, and, to a degree, women. In order to pass Intermediate scrutiny, the law must be found to advance a legitimate government interest in a way substantially related to that interest.

The final tier, Rational basis scrutiny, protects everyone else--opticians, professors, and probably gun owners too. In order to pass Rational basis scrutiny, a statute need only be rationally related to a legitimate gov't interest.

I'm pretty sure Rational Basis is where Reciprocity ends up, and because reciprocity is rationally related to safety, a legitimate gov't interest, reciprocity laws limiting reciprocity to certain conditions will never be found unconstitutional. The better way is still to push for change on a local level.

I know it seems unfair--why should laws discriminating against black people get a closer look than those against gun owners? I can only give you the answer that arises from the court itself--gun owners, presumably, can organize and play the political game if they don't like the law (as Newbius is doing right now, bless him!), whereas laws curtailing the rights of a racial minority or another unpopular minority group are not so easily dislodged, particularly when the law under scrutiny affects their rights to participate in government and society.

Newbius said...

Obsidian: I took care of the duplicate comment posts.

Geodkyt said...

Actually, Obsidian, "Strict Scrutiny" is generally reserved for fundamental rights -- which includes the specifically enumerated ones. It also includes race and such, under the 14th Amendment (Equal protection and Due process).

Rational basis is only justified where neither a fundamental right nor a suspect category (such as race) is involved.

You might be able to make a cliam for intermediate scruitiny, along the lines of teh restrictions on teh First Amendment of time, place, or method. . . but rational basis fails the smell test becuase they actually, you know, WROTE DOWN the Second Amendment into teh Constitution, nad the discussions of teh Founders as well as ALL legal commentary to that point indicated that teh 2nd only protected a pre-existing right of individuals to be personally armed for the defense of one's self or nation.

Intermeiate scrutiny could justify restricting how one carries a weapon -- but given the current cultural situation (including widespread police harrasment against open carriers in areas where legal guns are not common), courts have ruled that open carry is not an adequate alternative to legal concealed carry by the law abiding.

Intermediate scrutiny requires that the government show that the law in question furthers an important government interest in a way that is substantially related to that interest.

Given the violence rate among CCW holders (lower than the general population; ISTR it's lower than amongst the POLICE), there is no relationship to any government interest in banning ANYONE with a CCW from carrying in public areas. (Even under strict scrutiny standards, bans on weapons in secure areas like jails, psychatric hospitals, and courtrooms face no credible challenge -- banning, for example, people visiting inmates from possessing any weapons is the least intrusive manner of ensuring inmate security.)

In fact, you can make a case that prohibiting mandatory reciprocity doesn't even meet the rational basis of review -- given those same crime rates, it is apparant that prohibiting out of state CCWs isn't even a "reasonable means to an end that may be legitimately pursued by the government".