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The NRA Versus the Constitution: Supreme Court’s Decision in Murphy v. NCAA Raises Questions about Constitutionality of NRA’s Top Legislative Priority, “Concealed Carry Reciprocity”

May 21, 2018

In case you missed it, Everytown for Gun Safety’s director of litigation, former federal prosecutor Eric Tirschwell, published a new opinion piece in the Wall Street Journal this morning to explain how the Supreme Court’s recent ruling striking down the federal sports gambling law in Murphy v. NCAA spells constitutional trouble for the NRA’s top priority legislation, “concealed carry reciprocity.”

Specifically, the Supreme Court last week struck down the federal law prohibiting states from legalizing sports gambling as a violation of states’ rights and the 10th Amendment. Although it may seem unrelated to the gun lobby’s agenda, it calls into question whether “concealed carry reciprocity” would be constitutional if it were to become law. Like the federal sports gambling law, which commanded states to maintain state laws on sports gambling without setting a federal standard, “concealed carry reciprocity” would not create a national standard but instead would “seriously undermine” the authority of states to decide who can carry a concealed handgun within their borders by forcing states to accept the concealed carry standards of all other states.

Eric Tirschwell writes:

“The Supreme Court last week struck down the federal ban on legalized sports gambling as a violation of states’ rights—and that’s bad news for the gun lobby. In Murphy v. NCAA, the justices ruled that since Congress had declined to establish a national standard for sports betting, the federal government had no power to “command” states to prohibit it. ‘Conspicuously absent from the list of powers given to Congress,’ Justice Samuel Alito wrote for the majority, ‘is the power to issue direct orders to the governments of the States.’

“‘Concealed carry reciprocity’ would undermine many state laws governing who is allowed to carry a hidden, loaded gun in public. Instead of creating a federal standard for all of America, the idea is to force each state to accept the concealed carry standards, or lack of standards, of every other state.

“Such a mandate would be constitutionally flawed for reasons similar to those in Murphy v. NCAA. The federal legislation would set no nationwide standard, yet it would undermine states’ ability to enforce their own laws within their own borders. The ‘anticommandeering’ principle the Supreme Court reaffirmed last week does not favor a single set of policies. In Printz v. U.S. (1997), the justices applied the same logic to strike down a federal mandate requiring state and local law enforcement to perform background checks on handgun buyers.”

Right now, each state sets its own concealed carry standards. And these standards vary drastically across the country: 12 states don’t even require a permit. “Concealed carry reciprocity” would not create a national standard for who can carry a hidden, loaded handgun in public. It would simply force a state to accept the standards of every other state, including those that are significantly weaker or nonexistent.
The “Concealed Carry Reciprocity Act of 2017,” which passed the House in December, has been referred to the Senate Judiciary Committee. A Senate version of the policy (S. 446) has also been referred to the Senate Judiciary Committee.

More information about the proposed legislation to gut state gun laws is available here. If you have additional questions about this dangerous legislation, don’t hesitate to reach out.

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