Decentralize The Gun Laws

Authored by Ryan McMaken via The Mises Institute,

With a Republican in the White House, the anti-gun-control lobby smells a bit of blood in the water. Now is the time, they suggest, to pass national gun-licensing reciprocity laws forcing gun-restrictive states to recognize permits issued by gun-permissive states.

Writing in The Hill, Tim Schmidt sums it up:

It is time for there to be national reciprocity for concealed carry permits, instead of the patchwork of laws governing reciprocity that vary by state. Virginia, where the [recent shooting of Congressman Steve Scalise] happened, has reciprocity for some states’ concealed carry permits, but if members would have brought their guns back and forth from D.C., they would have been breaking the law. It should never be a crime to be responsibly prepared to defend yourself in any possible situation.


Sen. John Cornyn (R-Texas) and Rep. Richard Hudson (R-N.C.) have introduced the Constitutional Concealed Carry Reciprocity Act of 2017, which would allow legal gun owners and concealed carry permit holders nationwide to responsibly arm themselves no matter where they are. 

The way this is phrased sounds nice and totally unobjectionable: this bill sounds like it's just saying people should be left alone. 

The problem, however, is that the drive for mandated reciprocity is essentially a drive to increase federal involvement and federal control in the realm of gun policy. 

Schmidt is right in the sense that, of course it should never be a crime to defend one's self. The question remains however: should the federal government be the agency that guarantees that right? Should the feds have the power to overturn state and local laws that limit gun ownership?

This issue can be addressed from both a legal and Constitutional standpoint, and from a general philosophical decentralist view. 

The Constitutionalist View

Suzanne Sherman at the Tenth Amendment Center has already weighed in against the idea on Constitutional grounds, based on two main arguments: 

1. Reciprocity laws are compacts made among the states, and are not imposed by the federal government.


2. The Bill of Rights Doesn't apply to the states. 

On the first matter, Sherman notes that the proposed legislation would impose reciprocity on the states. This, Sherman notes, is a departure from what we usually mean by reciprocity, which denotes compacts that two or more states have voluntarily entered into. 

Sherman writes:

Many advocates of forced National Reciprocity point to the “Full Faith and Credit Clause” found in Article IV, Section 1 of the Constitution. Such application is likewise problematic because it deviates from the original intent of the clause, lifted directly from the Articles of Confederation without any change to its meaning. This clause, as ratified, simply ensured citizens in one state could own land or property in another with the full rights of a citizen of that state. It in no way implied that one state had to recognize the institutions or licensing of another state. Driver’s licenses are acceptable for passing through various states, but it is, like CCW licensing, by mutual assent of the states. In other words, there is no federal statute mandating that one state must honor another state’s driver’s licenses.

In other words, the sort of "reciprocity" imagined by the backers of nationwide forced reciprocity is a new kind of reciprocity that substitutes federal policy for decentralized state-level policy. 

The enormous downside to this is that it federalizes what has long been recognized as largely the domain of state and local governments. Further federalizing gun policy may look like a fine idea right now, but as Sherman notes, it only takes a couple of new anti-gun appointments to the Supreme Court for the whole idea to blow up in the faces of pro-gun advocates. It's far more prudent, Sherman contends, to work against any increase in federal involvement in gun policy. 

The Bill of Rights Was Never Meant to Apply to the States 

Sherman's second point is one that Constitutionalists and decentralists have made for years. Namely, that the Bill of Rights is properly understood as a document that limits the federal government, not state governments. 

Sherman writes: 

When he introduced the proposal for a Bill of Rights to Congress, Madison wanted some of the provisions to be made applicable against the states. He argued that was where liberty would be most likely threatened. Again, he was defeated unanimously. The Bill of Rights was never understood to be applicable against the states. There is absolutely no historical evidence of the Bill of Rights being made enforceable against the states. Even nationalist John Marshall, in the 1833 case Barron v. Baltimore, was forced to admit this when he said that the first ten “amendments contain no expression indicating an intention to apply them to the state governments. This court cannot so apply them."


...It was not until 1925, in the case of Gitlow vs New York, that the Supreme Court magically “found” the authority to apply the Bill of Rights against the states supposedly hidden away in the 14th Amendment..."

Sensing that things are going their way, it has become fashionable for some gun-freedom advocates to push for more federal control over state and local gun laws. One example is the recent case of Mcdonald vs. the City of Chicago which finally declared that the Second Amendment — like other portions of the Bill of Rights — applies to the states. Nevertheless, by pushing for more federal control in this case, gun-rights advocates are only pushing for more federal control over the states.

Even those who have no particular affinity for the current American Constitution have noted this as well. 

Lew Rockwell writes: 

[T]he purpose of the Bill of Rights was to state very clearly and plainly what the Federal Government may not do. That's why they were attached to the Constitution. The states, under the influence of skeptics of the Constitution's limits on the central power, insisted that the restrictions on the government be spelled out. The Bill of Rights did not provide a mandate for what the Federal Government may do. You can argue all you want about the 14th amendment and due process. But a reading that says it magically transforms the whole Bill of Rights to mean the exact opposite of its original intent is pure fantasy.

In other words, appealing to the 2nd Amendment as a means of limiting state and local gun laws is based on newly invented federal powers that have no basis in legal or historical facts around the Constitution as written. Thus, it is ironic that many conservatives — who often fancy themselves to be "strict constructionists" and "local control" people — have suddenly made peace with the idea of using the Bill of Rights to boss state governments around. 

The Decentralist View

The Constitutional arguments are all well and good, but the US Constitution should never be viewed as the final word on any matter. The current constitution has always gone much too far in terms of centralizing political power in the United States, and the United States should never have been anything more than a loose military alliance and customs union. It's no more necessary that the federal government regulate gun laws than it is necessary to define marriage or prohibit prayer at school sporting events.

In fact, gun policy, like abortion policy, wage policy, land-use policy, and everything else, should be relentlessly decentralized. 

In his article "What We Mean by Decentralization," Lew Rockwell explains the various reasons why decentralization is a mroe effective check on power than handing everything over to a Supreme Court or other federal "protectors" or rights. 

Rockwell lists five reasons for this:

First, under decentralization, jurisdictions must compete for residents and capital, which provides some incentive for greater degrees of freedom...


Second, localism internalizes corruption so that it can be more easily spotted and uprooted....


Third, tyranny on the local level minimizes damage to the same extent that macro-tyranny maximizes it....


Fourth, no government can be trusted to use the power to intervene wisely...


Fifth, a plurality of governmental forms—a "vertical separation of powers," ... prevents the central government from accumulating power. Lower governments are rightly jealous of their jurisdiction, and resist... 

Also key to this equation is the fact that decentralization offers a multitude of choices between different regimes in the face of government restrictions and persecution. If only one huge government has been granted the power to protect rights, to where will one go when the government fails to do its prescribed task? On the other hand, when a wide variety of smaller governments are charged with protecting rights, the failure by one regime is not nearly as catastrophic since the offending regime can be far more easily avoided through emigration and boycott than can a large centralized regime. 

Thus, it might sound nice to put the federal government in charge of protecting gun rights, but the potential downside is immense given that federal policy can change easily, and then be imposed nationwide. 

This isn't to say that small, decentralized government are a cure-all either. Ideology always plays an important role, and in a world where the majority wants all private citizens disarmed — well, that will happen regardless of what level of decentralization exists.

However, if what we desire is a governmental landscape that offers more choices for residents and more limitations on state power, decentralization is the proper path, and handing over gun policy to federal "protectors" is a terrible idea.



Oldwood Bigly Thu, 08/17/2017 - 20:03 Permalink

While I'm all for state's rights, the 2nd amendment is in our constitution, an enumerated right of the FEDERAL government to legislate. The fact that states and local governments are interpreting the 2nd amendment should be of primary concern.....just as they should not be interpreting immigration law. How about we just give the ole constitution a try???

In reply to by Bigly

Creepy_Azz_Crackaah (not verified) Oldwood Thu, 08/17/2017 - 20:19 Permalink

I agree but we are where we are:  Libtards have taken over many states and they'll just keep banning what they are afraid of, unconstitutional or not.  The federal government passing reciprocity might be a cure for that.I have a nonresident Utah CC.  It would be great to have that allow me to carry in all 57* states.Where I get really nervous is seeing what the leftist state attorney generals do to people who defend their lives with a gun.  They'll jail you and keep you in court for years for stopping an Obama son from killing you.

In reply to by Oldwood

Buckaroo Banzai TuPhat Thu, 08/17/2017 - 23:13 Permalink

If states can be constitutionally forced into fag marriage reciprocity, they sure as shit can be forced into concealed-carry reciprocity.

The fact that this hasn't happened yet, with a republican president and republican control of both house and senate, demonstrates just how weak and ineffectual the Republican Party really is.

In reply to by TuPhat

Theosebes Goodfellow TuPhat Fri, 08/18/2017 - 08:59 Permalink

~"Second, localism internalizes corruption so that it can be more easily spotted and uprooted...."~ Tell that to the poor sons of bitches in Kalifornia who, sans the protections provided by conceal-carry, decided to not march due to threats from leftist antifa thugs.All of this "constitutional" drivel overlooks a higher order of Law, that of Natural Law. Natural Law declares that you have the inate right to be safe in your person and property wherever you go. You have the right to use whatever force is necessary to protect that. This existed before the Constitution and will exist if the Constitution should perish. Any state that will deny you the the most primary of rights is illegal, imoral and perverse and needs to be either amended so it no longer infringes on your Natural Rights or it must be abolished. Get your heads out of your asses.

In reply to by TuPhat

Oldwood Creepy_Azz_Crackaah (not verified) Thu, 08/17/2017 - 23:02 Permalink

An even larger concern is the willingness of state and local governments to defy federal law (as they have for years) and pretty much do what they want. The simple fact of chaos in law enforcement provides them a great "unwritten" power in that we just don't know what we can actually do, legality aside as even if they act illegally against us, our responses are extremely limited, likely too little too late.… just one example.You can be right....DEAD RIGHT. 

In reply to by Creepy_Azz_Crackaah (not verified)

Gardentoolnumber5 Oldwood Thu, 08/17/2017 - 21:08 Permalink

So much wrong with this article it is hard to know where to start. It supposes that if CA votes to remove your right to free speech, religion, shutting down all press except for CA approved press, assembly, petition, 2A and openly violate the rest of the Amendments particularly the freedom to travel that the Federal Govt should stand by. What of Article IV Sec 4 guaranteeing to every State a Republican form of government. Just ignore that, folks, the States can take all your freedom according to this author and line of thought with nary a squeak from the Fed Govt.Then he goes on to state, "where the majority wants all private citizens disarmed — well, that will happen regardless of what level of decentralization exists" This throws republican government out completely and stands up democracy as the end all and be all to all our problems. The wants of the majority of any population don't mean a woot in a republican form of govt. We can agree that local control is best but not with the natural rights of every citizen those the Federal Govt is bound to protect. It is the duty of those in Federal Govt to stop the States from usurping these natural rights. All due respect to Mises Institute, I suspect Ryan McMaken is at heart Anti 2A with little or no understanding between a well constituted republican form of govt and a democracy. Democracy where natural rights are at the whim of the mob. The Federal govt has long ago abandoned their obligation protecting us from mob rule of the States in blatant usurpation of our natural, constitutional God given rights. As one poster pointed out Shall Not Infringe!We can agree that the Federal govt has no basis in 2A other than stopping the usurpation by those in State govt who would violate those rights. The leftist have chipped away at 2A for decades and reciprocity is just trying to claw some back until the Federal govt starts taking its job of protecting and defending the intent of the constitution as the supreme law of the land.

In reply to by Oldwood

Offthebeach Bigly Thu, 08/17/2017 - 20:04 Permalink

2nd is not for deer or dindos.  It's for politics.  It's for the people, against the people who call themselves government.  Like the stupid, or lying, Chiefs of political police, gussied up town employees who refer to their fellow citizens, as they are only too, as, " civilians".   Without the 2nd, the First is toilet paper.

In reply to by Bigly

kommissar Offthebeach Fri, 08/18/2017 - 01:51 Permalink

as the honorable "b1" bob dornan said in session: "the second ammendmend isn't about hunting for bambi: it was to hunt for politicians."  himself being one in the same at the time of utterance.  that's probably not an exact quote, but good enough.  i understand the old man is still with us.  one of our better public servants, and a very colorful speaker :)

In reply to by Offthebeach

DuneCreature Thu, 08/17/2017 - 19:51 Permalink

Why You Need A Gun

'Cause this is war.

~~~)()()()(*****>...Why a Third Amendment?...<*****)()()()(~~~

We are an occupied country.

Yep, sir,........can't you feel it? .... I sure can.

Things are different. ... Screwed up.

Not the way they were.

I know, I know. ... Things always change, but this isn't organic change. .. This is something different.

This is some kind of occupation of my life space by something inorganically evil.

Something slowly sucking the blood out of my country.

Sucking the life out of people I know.

What if I told you it is your government plotting EVERY DAY to wreck your life. .. Those people We The People trust to keep us safe, up hold our laws, arbitrate our differences and steward our common resources.

It is a top secret occupation force that is here, in full operational mode to harvest you and your resources.

You do understand it's just business, don't you? ... Sometimes a little personal too, but mostly just business.

This, being ZeroHedge, I will find a few people who are shaking their heads in agreement. .. The readers here tend to see things way ahead of the crowd. .... But out there in Rabble Land USSA this is going to be a very hard sell.

Here is George Webb doing a very good job describing the Occupying Army =

George knows,................and now you do too.

Live Hard, You Are Quartering Troops Now For Operation Gladio Cee, You Just Don't Know It, That's The Whole Idea, Charlottesville Anyone?, Die Free

~ DC v7.4

EuroPox DuneCreature Thu, 08/17/2017 - 20:04 Permalink

What you are describing is Cultural Marxism - the life blood is being sucked out of the US and most other White Anglo Saxon Protestant countries.  It started slowly but is really gaining speed now.  The problem is not just the elected officials (but they are a problem) it is also the party system that only gives electors the choice of candidates from the same cess pool.  Even more than that, it is all the appointees in committees and other organisations that get to control parts of your everyday life (like the people who teach your kids at school or college) - you can't even vote them out but the majority come from the same cess pool too.You know that there is only one way this finishes.

In reply to by DuneCreature

hedgeless_horseman Thu, 08/17/2017 - 19:50 Permalink…

Now, the Second Amendment in the Bill of Rights:     "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." Is that “elitist”?  "...the right of the people [ignorant masses] to keep and bear Arms..."  It sounds rather egalitarian to me, and it is plain to understand why the elites don't care much for the Second Amendment.
alexcojones Thu, 08/17/2017 - 19:52 Permalink

Sandy Hoax was a gun grab drill. PeriodIt wasn't a School Massacre. It was a FEMA Drill.Proof it was a drill was right before our eyes:* the sign, "Everyone must check in!"* boxes of bottled water &amp; pizza cartons* Port-a-Potties present from scratch* many wearing name tags on lanyards* parents bringing children to the sceneProof it wasn't a massacre was also there:* no surge of EMTs in to the building* no Med-Evac helicopter was called* no string of ambulances to the school* no evacuation of 469 other students* no bodies placed on the triage tarps   - Jim Fetzer 

SmittyinLA Thu, 08/17/2017 - 20:03 Permalink

That's a horrible idea because California has both decriminalized crime and given concealed and open carry permits to criminals, they've even integrated gang criminals into the police force.

One of the cool things about decriminalizing crime is you can give guns to criminals.

Stormtrooper Thu, 08/17/2017 - 20:04 Permalink

The states inserted the 2nd Amendment into the Constitution to prevent the from taking guns away from state citizens.  The is the subordinate agent of the sovereign states and can be abolished thru an Article V Convention/ratification process.  It DOES NOT apply to states rights to control guns in any way that that state governments choose.  It is up to citizens to use whatever (ANY METHOD) method appropriate to maintain their gun rights within their own states.

Hail Spode rejected Thu, 08/17/2017 - 22:11 Permalink

Then that would be the second time you would be wrong as to the intent of the amendment. Oh I don't deny that federal courts have altered its meaning well beyond legislative intent over the years, but the 14th was not meant to make the whole bill of rights applicable to the states. Certainly it does not say that. Look at the Slaughterhouse case and you will see how very narrowly federal judges originally interpreted the 14th (when those who passed it were still alive to say what the meant). Only in the recent times have the judges started hallucenating that the 14th gives them permission to tell the states where to get off, even without a specific law from Congress.Decentralization is the key. If people can easily flee bad government then government will be forced to get better or they will be left with no decent people left to govern. Already happens to some extent, but increasing federalization of everything is retarding the process of market pressure on idiot government. Localism, a philosophy of government. agree with the post. "Reciprocity" is the first step in making gun laws tougher is states where open carry is legal without a "permit". 

In reply to by rejected

rejected Stormtrooper Thu, 08/17/2017 - 21:27 Permalink

The is the subordinate agent of the sovereign states and can be abolished thru an Article V Convention/ratification process.The only way to abolish this government would be to abolish the Constitution as it is the authority that creates the government.As for being subordinate that only existed under the Articles of Confederation........Con-federation. States are sovereign.  Federation. The national government is sovereign.You see, the Constitution made the US a Federation where the central government is supreme which is what the founders said they wanted. With the ratification of the Constitution the States signed away a major part of their sovereignty. By 1916 they lost their militia, and lost their participation in the national government.  By 1965 all the protective amendments had been usurped,,, including your Article V.Today the Constitution is a relic. 2/3 of all law passed would be unconstitutional IF the constitution was observed.And the State/County/City/whathaveyou  governments today are every bit as tyrannical as the federal government.

In reply to by Stormtrooper

Sanity Bear rejected Fri, 08/18/2017 - 06:10 Permalink

The federal government is the agent of "We the people", not the states. The actual setup is levels of government which are supposed to compete with each other to best protect the liberty of the people. Hence the built-in checks and balances not just among branches of government but also between levels of government. That flew the coop with the direct election of Senators, which neutered the influence of state governments over the federal and turned them into de facto administrative provinces.

Note "it is the right of the people to alter or abolish it" from the Declaration of Independence. These same men did not then turn around and reassign that right to state governments.

In reply to by rejected

nsurf9 Thu, 08/17/2017 - 20:48 Permalink

Never mind that 2nd Amendment non-sense.You know, its sort-a of like recognizing your license from another state - for you to breathe air - so, you don't break their laws.