Gun rights: Bid to federalize concealed carry puts GOP in unfamiliar territory

Shaneen Allen’s rise from single Philadelphia mom to global gun rights icon has the elements of a John Grisham thriller: violent crime, race, and the power of the state over the individual.

An African-American, Ms. Allen was arrested in 2012 after a traffic stop in New Jersey. She faced up to five years in prison under New Jersey law – not for lacking a concealed-carry permit for her firearm, but for having the wrong one.

A bill passed in the US House in December and now up for consideration in the Senate would force all states to abide by each other’s permits, meaning that concealed-carriers such as Allen would no longer have to navigate a Rorschach-like map of regulations as they navigate the country.

It would also mean gun-wary states such as New York would be “bound by the boldest experiment” – including states that put basically no restrictions at all on concealed-carry – as South Texas School of Law professor Josh Blackman has put it.

That a black single mom has become the poster-woman for a national concealed-carry reciprocity bill has further put Republicans in an unusual – some say awkward – position. By raising legal gun carry to a civil rights issue, the party usually arguing in favor of states' rights finds itself defending federal supremacy.

Ben Fogletto/The Press of Atlantic City/AP/File

Shaneen Allen (right) and her attorney Evan Nappen talk to media outside Atlantic County Criminal Court in Mays Landing, N.J., after a motion to dismiss the gun possession charges against her was denied. The handgun that Allen was carrying when she was pulled over on a New Jersey highway could have sent her to prison for years if not for a pardon from Republican Gov. Chris Christie. The legal saga of the Pennsylvania mother of two has helped inspire a measure that could change handgun laws across the country.

“The history of racism and guns is for real, and you see it in this case: Shaneen Allen was pulled over for failure to maintain a lane, some jazz like that – some people think it was DWB [driving-while-black],” says Evan Nappen, her attorney. “Then you have this law-abiding, honest woman from a tough part of Philadelphia – where she has gotten robbed twice – who does the right thing, follows the law [to carry legally in her home state] and New Jersey wants to incarcerate her.”

The reciprocity bill is only one of a series of assertions of federal power by Republicans and the White House. Three days after recreational marijuana became legal in California, Attorney General Jeff Sessions on Jan. 4 rescinded a key Obama-era memo that gave states legal cover to set their own policy on the drug. The tough talk extended to immigration issues, as well. Immigration and Customs Enforcement Director Tom Homan suggested on Fox News last week that federal agents might arrest elected officials, saying, “We gotta start charging some of these [pro-sanctuary city] politicians with crimes.”

Even as gun ownership has waned per capita in the US, guns have, in a sense, become more public than ever. Concealed-carry permitting has skyrocketed from a few hundred thousand people in the 1990s to more than 16 million today.

In California's Sacramento County, one out of every 164 residents is now armed in public, ranging from rural gold country to the streets of the state capital. As a group, studies have found, concealed-carry permit holders are more law-abiding than even active police officers.

As the practice has expanded, so has the right. Thirty years after Florida pioneered the so-called “shall-issue” movement, the vast majority of states already honor each other’s carry codes. A Florida permit-holder can basically travel armed from Lake City, Fla., to Provo, Utah, without worry.

Yet eight US states, mostly in the Northeast and Midwest, have resisted the trend. New York, Illinois, and New Jersey are among those who reserve the right to decline an application and require “good reason” for wanting to carry, such as being a retired cop or traveling jewelry salesman.

It is an issue bound by culture, tradition, and broad local sympathies and fears around guns, exacerbated after a record year of mass shootings in public places. It also cuts straight to historical tensions between the North and South, including constitutional wrangling over commerce and equal protection clauses, experts say.

“What is going on now with guns is a strange [replaying] of the free soil controversy preceding the Civil War, where Northern states are saying, ‘No, this is gun-free soil and you can’t bring your guns here,’ and the Southern states are saying, ‘An attack on gun ownership anywhere is an attack on gun ownership everywhere,’ ” says James Gardner, a constitutional law professor at SUNY’s University at Buffalo.

More darkly, critics say, the arming-up of America carries similar political echoes as the run-up to the Civil War, when, as South Carolina Sen. James Hammond said at the time, "the only persons [in Congress] who do not have a revolver and a knife are those who have two revolvers."

The view from Florida

Florida may have pioneered carry and self-defense ideas that Mr. Nappen says “gave this power, this right, back to the citizens.” Yet Florida is one of only five states to ban open carry. The state attorney general supports national reciprocity, but one of its state attorneys opposes the bill, calling it an affront to federalism.

“Ultimately, this legislation eliminates all regulation of concealed carry: no training, no background checks, no limitations — and no questions asked — for every community across the country,” state attorney Andrew Warren wrote, noting that “19 states do not require any gun-safety training, 15 allow domestic abusers to carry concealed weapons, and 12 have no requirements whatsoever.”

The bill has pitted a sense of overriding states' individual wishes and local character against shifting legal views of the Second Amendment, which the Supreme Court has expanded only recently to include self-defense.

One constitutional weakness in the current bill is that it not only protects travelers, but makes it possible for residents of “may-issue” states to skirt the law in states where they are domiciled. The Supreme Court has never ruled on whether there is a right for law-abiding Americans to carry a concealed weapon.

“The Constitution protects the right to bear arms both at home and outside, but courts have also seen [local carry limitations] as reasonable,” says Mr. Blackman in a Monitor interview. “That is … why [congressional bill-writers] would be smarter by trying to force states to become shall-issue states” rather than forcing them to recognize out-of-state permits.

Ultimately, he adds, “the argument is that [national reciprocity] is what is required by the Constitution.”

Yet for some, the fight may be less legal and, instead, “really a question of culture,” says Virginia lawyer Stephen Halbrook.

One of his clients, a Florida man named Dale Norman, lost his appeal after he was thrown to the ground, handcuffed, and fined $300 in Fort Pierce, Fla., after someone saw his half-visible concealed-carry weapon and called the cops. The judges noted there is no federal right to carry openly. The Supreme Court looked at the 2012 case but did not take it up.

“I had a case of another lawyer who got busted at JFK [airport] for checking a gun in accordance with TSA rules,” says Mr. Halbrook. “The judges were basically shocked to think that somebody could have a gun [in New York], not have a New York permit, and you couldn’t arrest them. That is what federal law [allows], but they couldn’t bear that possibility.”

States' rights rhetoric vs. reality

To be sure, the US has a long tradition where states’ rights rhetoric is “as much a function of tactics as of genuine conviction,” as the late University of Alabama historian Forrest McDonald wrote in “States’ Rights and the Union.” 

But that founding debate also crashes into modern political reality, critics say, as Republicans risk opening up gun permitting to federal whims, subject to which party is in national power.

“The correct reaction by a true conservative would be that [gun-carry licensing] is a matter for states to sort out between themselves,” says Steven Strauss, a visiting public policy professor at the Woodrow Wilson School in Princeton, N.J. “First of all, it is not unreasonable that someone from Mississippi going to another state should familiarize themselves with the law. And if you have agreed that the federal government can override the states, you can’t come back later [when another party is in power] and say, ‘Oh, we didn’t really mean that.’ ”

Some conservatives are clearly struggling with that dynamic.

In New Jersey, Republican Gov. Chris Christie has pardoned individual gun-carry permittees, including Allen, but now opposes the national reciprocity law. Experts are skeptical that the Senate, where Republicans have a slim 51-to-49 seat majority, can muster passage of such a controversial law in order to send it to the president’s desk.

But Allen, in some ways, represents how the issue of concealed-carry has changed the national debate. In the wake of her arrest, she changed her party affiliation to Republican and just before Christmas told the Associated Press: “Hopefully I’ll be at the White House next to [President] Trump signing this bill.”