Thursday, July 23, 2009
The Constitutionality of the Thune Amendment
I must preface this post by apologizing for the length. Rather than just sharing my opinion on the Thune Amendment, I thought I would take you through my mental processes. (Scary I know.)
Few are more pro-second amendment than I because, frankly, few love the Constitution more than I. It isn’t merely that I own a large number of guns, which I do. It goes much deeper. I am against any type of gun restriction that would infringe on our right to bear arms because I believe that our Founding Fathers included the Second Amendment in the Bill of Rights for an important reason. That reason is defense—defense of our nation and defense of the citizenry against tyranny. This is exactly why Jefferson repeatedly argued for the right to bear arms—to protect our freedom from governments, both foreign and domestic.
Since I am such a constitutionalist and such a supporter of guns rights, one would expect me to be instantly upset with the defeat of Senator John Thune’s (R-SD) amendment to Defense Department authorization bill, which would “allow individuals to carry lawfully concealed firearms across state lines.”
Well…that wasn’t the immediate case.
Why? Why would I even hesitate to rally behind a legislative measure that seems so in line with my beliefs? The answer: Though I supported the goal of the Thune Amendment wholeheartedly, I was unsure whether or not it passed constitutional muster when it came to issues of federalism. Yes, my desire for less gun restriction was upset, but I wasn’t sure what side of the issue I was on. I wanted freer gun rights but not at the expense of states’ rights.
To understand my reaction you must learn something about me: I read the Constitution a lot. So, when it comes to any issue, before I take a position, my mind goes into overdrive looking at every angle of the measure to test its constitutionality. Of course, I have gut reactions like everyone that may or may not be right, but I subscribe to rule of law not rule of preference. Therefore, for a measure to be constitutional it must be considered in context. What may seem like an open and shut case may not be so cut and dry. For example: some constitutional provisions apply to both federal and state governments, some are solely state matters, and still others are left exclusively for the federal government. This division of power and authority between the different levels of government, called federalism, is of prime importance in our constitutional system--especially when we consider the context of our Constitution’s adoption and the text itself.
The Tenth Amendment’s guarantee that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” gives a large level of deference to the states by the federal government. And we know that the vast majority of our Founders (and I am talking near unanimity) desired that government be small and mostly at the local level. Therefore, when it comes to most issues, I support full state sovereignty--that is unless constitutionally stated otherwise.
So when it came to the issue at hand (Thune’s amendment), though I was fully supportive of its goal, I was not comfortable with the federal government making law that would apply to a potential matter of the state. Of course, I want each state to have zero gun restrictions, but my wants must be measured against the law. And, what’s more, my basic philosophy usually tells me to defer to the state whether or not I like its actions.
For example: I oppose a state income tax in my home state of Tennessee, but I believe that California is free to tax as it pleases. BUT the day the federal government tells TN or CA it must have a state income tax there is a violation of federalism, the constitutional line has been crossed, and I’ll be on the front lines fighting against such an illegal encroachment.
This state deference, however, is not absolute. I understand that there are times when the Constitution requires the state yield its sovereignty.
That is what our Constitution is—a covenant in which the states gave up some sovereign rights in order to form a civil government. The federal government must uphold its side and not infringe on the rights of states and the people, and the states must yield when constitutionally appropriate. This reality of federalism is the context in which we must consider the Thune Amendment.
I must admit that after originally being suspect of the any federal action regarding a possible states’ issue of gun control, I immediately realized that I had forgotten the language of the Second Amendment which reads:
“A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.”
As one can easily see, neither Congress nor the states are mentioned as being able to “infringe” on the “right to bear arms.” Therefore, neither states nor Congress can infringe on this fundamental right. While other amendments specify either Congress or the states’ legislative limitations, the Second Amendment is a general guarantee of the right to bear arms and a general prohibition against infringement of that right by both state and federal governments.
Coming to this conclusion, we must consider whether the current law regarding carrying firearms violates the Constitution. I must admit that, though current policy could allow more liberty, there is not a direct violation of the Second Amendment. But the changes proposed by the Thune amendment are not unconstitutional either.
In fact, a close look at the Constitution and the amendment has led me to conclude that not only is Thune’s carrying amendment permissible but that it’s a great piece of legislation, seeking to use constitutional authority of the "full faith and credit" of Article IV to protect a fundamental right of a free society. What's more, states still have much authority over their guns policies because of the responsible measures of the amendment.
As Thune points out in a recent press release, “Under the Thune Amendment, individuals who travel to other states would be required to follow the laws of the host state, including laws concerning specific types of locations in which firearms may or may not be carried.”
“Currently, some states with concealed carry laws grant reciprocity to permit-holders from other select states. Senator Thune's bill strikes the appropriate balance between individual and states' rights by allowing an individual to carry a concealed firearm across state lines if they either have a valid permit or if, under their state of residence, they are entitled to do so.”
The fact is that the amendment would respect states’ rights and honor state level gun legislation. It would merely call upon Article IV of the Constitution to allow what constructional scholars refer to as “'union' among multiple sovereigns." We already experience this on a daily basis.
States take it upon themselves to only allow licensed drivers to operate automobiles on the road, but one does not loose that licensed privilege once he has crossed the state line. A licensed driver from California’s right to drive is recognized in Tennessee's burden of licensing has been met. The Thune Amendment would do the same sort of thing. One could not carry a firearm into a state outlawing such an action. But, if a state decides to allow those with carrying permits to carry in their states, (like we do with drivers’ licenses) one would be able retain his right to carry even across state lines.
As Thune correctly notes, "Law-abiding [state citizens] should be able to exercise the right to bear arms in states with similar regulations on concealed firearms. My legislation enables citizens to protect themselves while respecting individual state firearms laws."
This is not a states’ rights issue. States rights’ are fully respected. Moreover, this isn’t a measure testing the rightfulness of concealed carrying; that is a completely other issue.
No state that prohibits concealed carrying will be affect by this legislation. The Thune Amendment would merely allow permitted citizens to carry guns to states which already approve of permitted citizens’ right to carry.
This measure not only falls within the purview of the Constitution. It is good legislation on sound constitutional footing that makes a lot of sense.
I support it based on the whole Constitution, Second and Tenth Amendment alike.