Full Faith and Credit Clause, Carry Rights Implicated?

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maestro pistolero

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Now that SCOTUS will be taking up gay marriage in April, I am wondering if an application of the full faith and credit clause to gay marriage might help form the legal basis for application of that clause to the right to bear, where a licensed individual in one state might be entitled to carry rights in another state.
 
I have always been of the opinion that the full faith and credit clause should apply to carry permits (subject to the usual disclaimer that I believe carry permit requirements are themselves unconstitutional). The lawyer types don't seem to agree, so perhaps Spats McGee or Frank Ettin can explain why.
 
Side point: I'm not opposed to gay marriage, per se, but it is a little annoying to see the eagerness with which the court grants certiorari to a case concerning a decidedly unenumerated right while declining to hear cases concerning the deprivation of a decidedly enumerated and incorporated fundamental right, i.e. Woollard and Kachalsky.

In any case, I welcome the input to my opening question from the legal experts here.
 
One problem is that concealed carry is not an enumerated right. In fact SCOTUS has gone out of their way to point out the right isn't to carry anything you want in any way you want.

The current theory is that some form of carry is protected but any specific form is not. Travel is a right, but walking/swimming/flying/driving is not. If open carry is allowed, concealed is not, the right is protected. If concealed is allowed, open is not, the right is protected. There's some muddling around about classes, fees and the like requirements -but I don't see many who think the government can't pick one and ban/regulate the other to a fare thee well. The first recent conversation we've had on this subject that comes to mind was Peruta. Peruta was a win because Open Carry is all but banned in most if not all of the county.

So there's your first hurdle in Full Faith and Credit.

John's state allows CC but bans OC. John goes to the Next State Over (NSO) on a drive. The NSO allows OC but bans CC. Does the NSO have to allow John to CC even though they ban it because he has a permit from his state?
 
The disparity in state laws concerning this fundamental right MUST be resolved by the Supreme Court eventually. There is no other incorporated fundamental right of which I am aware that the Supreme Court would allow such broad latitude to regulate at the state level. I can imagine the court protecting open carry as the base right, but accepting concealed carry as an alternatively sufficient means to satisfy the right.
 
maestro pistolero said:
I can imagine the court protecting open carry as the base right, but accepting concealed carry as an alternatively sufficient means to satisfy the right.
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It would be a step in the right direction if the Supreme Court would just affirm that each state MUST allow some form of carry without any license. Several states, such as Ohio, have formally ruled that way in their state supreme courts.

The Second Amendment guarantees (supposedly) a right to keep and bear arms. It doesn't specify a mode of carry. Ideally each individual would be allowed to choose the mode of carry and not need a license or permit for either open or concealed, but allowing either one while banning or licensing the other technically satisfies the Second Amendment. I don't understand how any judge, anywhere, who has a shred of intellectual integrity left in his or her body can argue that a fundamental right that explicitly says it "shall not be infringed" [regulated] can be subject to licensure.

But ... I know I'm preaching to the choir.
 
Yep. It's hard to imagine what stronger language could be substituted for "shall not be infringed" if the intent was to completely prohibit government intervention in the exersize of the right. I don't recall Heller, for all its linguistic and historical inquiry, giving much attention to the gravitas of that phrase.

It's amazing how the judiciary can write volumes on minuscule subtleties of the language, parse every turn of phrase until the language becomes nearly meaningless, yet circumvent an elephant in the living room.
 
There is a lot of misunderstanding of the Full Faith and Credit Clause in the Constitution. Let's look at what it actually says (Article IV, Section 1):
Section 1.

Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.​
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Let's look at how this actually applies:

  • A common application is with respect to marriage. If a couple has entered into a marriage in one State under the laws of that State, they will be recognized as married in every other State. (But that doesn't mean that a marriage licensed issue in one State may be used to enter into a marriage in another State.)

  • If one acquires title to property (real or personal) under the laws of one State, his ownership of that property will be recognized in every other State.

  • If one secures a money judgement in one State against a person, that judgement may be enforced in the courts of another State in which the judgement debtor or his property might be found.

  • "Full Faith and Credit" also serves a basis for state-to-state extradition of persons charge with crimes or convicted of crimes in other States.

"Full Faith and Credit" in general has not been applied with regard to activities subject to a license in a State. If you are licensed to practice medicine or do business as a contractor in one State, you in general can not expect to be able to lawfully practice medicine of do business as a contractor under that license in another State.

Driving is an exception. It is, however, not an exception because of the Full Faith and Credit Clause of the Constitution. It's an exception because States have agreed among themselves to honor each others driver's licenses.
 
So the FF&C clause is not a typical mechanism for the application and state-to-state protection of incorporated amendments from the Bill Of Rights, or of state licenses. . . unless congress were to use the clause applying it to 'and bear', which would be a rare and unusual use of the law.

How am I doing?
 
maestro pistolero said:
So the FF&C clause is not a typical mechanism for the application and state-to-state protection of incorporated amendments from the Bill Of Rights,...
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Nope.

maestro pistolero said:
...or of state licenses. . . unless congress were to use the clause applying it to 'and bear', which would be a rare and unusual use of the law....
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And, given notions of state sovereignty (and the Tenth Amendment), and the limitation on the powers of Congress, it's an open question whether Congress could do any such thing.

Bottom line --

  • Based on Heller and McDonald the Second Amendment protects an individual right to keep and bears arms, independent of any service in a militia, and applies to the States through the Due Process Clause of the Fourteenth Amendment.

  • The laws of a State regulating in some way the right to keep and bear arms will be subject to being tested under the Second Amendment.

  • However, enumerated rights may be subject to limited regulation. The scope and extent of regulation permissible for rights protected by the Second Amendment is only beginning to be worked out in the courts.

  • Each State may regulate, or not regulate, the rights protected by the Second Amendment as it chooses, but only so long as the scope and extent of such regulation does not cross the permissible boundaries as they are worked out in the courts.

  • One area which has really not been explored yet, and which I think might ultimately be a key to breaking the logjam, is the effect of disparate or inconsistent state-by-state regulation of the right to bear arms in the context of the recognized right to travel. But I also think that before we can expect to be able to explore that area to our benefit we will need to lay a much more robust foundation of pro-Second Amendment decisional law.

  • But I don't see this as a "Full Faith and Credit" issue. FF&C says that State A must accept the fact that you have a CHL issued by State B. But FF&C leaves to State A the question of whether or not your having a State B CHL means anything while you're in State A.
 
Frank Ettin said:
But I don't see this as a "Full Faith and Credit" issue. FF&C says that State A must accept the fact that you have a CHL issued by State B. But FF&C leaves to State A the question of whether or not your having a State B CHL means anything while you're in State A.
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Frank Ettin said:
If a couple has entered into a marriage in one State under the laws of that State, they will be recognized as married in every other State.
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(emphasis mine)

These quotes don't quite seem to line up....perhaps I'm just missing some information.

Why can't it be said that a couple has entered into a marriage in State A, and it's up to State B to determine if that marriage "means anything" while you're in State B? I'm trying to understand from where does the absolute certainty of the (emphasized) word "will" originate wrt marriage, and why then is it absent for CHLs?

I guess I'm looking for the magical list where all States must, by FF&C, respect all types of licenses / etc on the list.

Frank Ettin said:
But I don't see this as a "Full Faith and Credit" issue. FF&C says that State A must accept the fact that you have a CHL issued by State B. But FF&C leaves to State A the question of whether or not your having a State B CHL means anything while you're in State A.
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Then how is the "full faith" part fulfilled? If State A decides my license to be married or whatever from State B means nothing, then zero faith was given, which is the opposite of full faith, is it not?
 
I noticed the seeming gap in logic as well. What does it mean for state "A" to recognize the license but give it no effect? Does not the clause itself give congress the authority to prescribe the effect and scope of the amendment by enacting general law?
 
Why not? Until recently the Federal Government did it too. Until recently a same sex couple wasn't considered married to some federal departments, not? Wasn't the last same sex marriage case about IRS taxes when one spouse died, and estate taxes and/or death benefits?

As far as I'm understanding FF&C- and Frank can correct me if I'm wrong-

If State A says you're married, and State 1 says the benefits of marriage are A, B, C, and E- and you then travel to State 2, who says OK State A says you're married, and State 2 says the benefits of being married are only D- Full Faith and Credit does not mean State 2 has to extend the benefits A, B, C, and E to a married couple living in State 2 that was married in State 1.

For that matter there's nothing in FF&C that says State 2 has to decide to allow marriage itself, or provide any benefit at all to it.

I believe, in theory, a 6 million (adult, voting eligible) member cult could move to Wyoming (population ~600K) and remove all recognition of marriage from the State and local laws within a couple years. The best case recourse would be suing to get marriage recognized as one of those smoky hazy 9th amendment rights, or as a first amendment association based right.

If that were to happen, as I understand Frank's explanation of FF&C- Wyoming would tell incoming married couples- Great, you're married. We don't recognized marriage period in this State, so while we'll say you're married, it means nothing here.
 
What does it mean for state "A" to recognize the license but give it no effect?
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Well let's find out- How many people here have a business license? I know we've got some FFL's in here.

If I have a business license in Florida, and only Florida, can I open a business in Alaska?

If I have a business license in Oregon (which charges no sales tax) and I use it to open up shop in Seattle, WA, and I don't collect sales tax (WA wants ~10% sales tax), am I legal because Oregon doesn't charge sales tax?
 
The business license is a local license that is not pursuant to a fundamental right. But then, neither is a marriage license pursuant to an enumerated fundamental right.

Your point about state "B" only being required to extend such marriage benefits as it extends to its own married individuals is well taken.

Using that logic, a CCW license in state "A" would only secure such carry rights in another state as state "B" would extend to its own licensees (assuming, arguendo, that the full faith and credit clause were applied by Congress to carry licenses).
 
speedrrracer said:
...If State A decides my license to be married or whatever from State B means nothing, then zero faith was given, which is the opposite of full faith, is it not?
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And in fact your State B license to marry does mean nothing in State A:

  1. It won't allow you to legally contract marriage in State A.

  2. What would matter is that if you legally contracted marriage in State B now State A would recognize you as being married.

  3. But any consequences of being recognized as married by State A will be decided under the laws of State A. For example:

    • If you and your spouse remain residents of State B but have investments in State A, your liability for State A income tax on those investment would be determined based on (1) you and your spouse being a married couple; and (2) the tax laws of State A.

    • If after having been married for a while and living in State B (which is a community property State) you and your spouse move to State A (which is a common law marital property State), respective rights in property acquired after the move will be determined in accordance with the law of State A, even though the marriage was contracted in State B and even if respective rights in marital property acquired before moving from State B continue to be determined in accordance with the laws of State B.
Similarly:

  1. If you acquired title to a 1997 Ford F-150 by intestate succession under the laws of State B because the decedent was a resident of State B when he died, and under the intestate succession laws of State B you were entitled to that property, State A would recognize you as the owner of that 1997 Ford F-150.

  2. That would be the case even though under the intestate succession laws of State A you would not have been entitled to that truck.

  3. But again, any consequences of your ownership of that truck in State A would be determined in accordance with the laws of State A. So, for example, if the windows of that truck have a dark tint permissible in State B but not in State A, you'll be likely to get a ticket if you drive your truck in State A.

For another example:

  1. You sue Y in State B and win. The court in State B issues a judgement in your favor against Y to the effect that Y must pay you $100,000.

  2. Y splits to State A where he has all his property and bank accounts.

  3. You now take that judgement to a court in State A to get a writ of execution to allow you to attach Y's property and/or bank accounts so you can get paid the money Y owes you.

  4. In general, the court in State A will recognize and accept the State B judgement as conclusively establishing that Y owes you $100,000 (although there are some limited bases upon which Y might try to collaterally attack that judgement).

  5. But even though the court in State A has accepted (given Full Faith and Credit to) that State B judgement, the way you can collect that judgement in State A (e. g., terms of the writ of execution, how it may be served, the interest payable on the unpaid judgement, exemptions of property from levy, limitation on garnishment of wages, etc.) will all be determined under the laws of State A.

So Full Faith and Credit and legal matters generally involving multiple States are very complex and highly technical matters.

maestro pistolero said:
...assuming, arguendo, that the full faith and credit clause were applied by Congress to carry licenses...
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Full Faith and Credit is not something applied by Congress. It's something applied by a court. It would be part of an argument addressed to a court about why something should be or why something should not be.
 
Section 1.
Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.
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Isn't the granting of a carry license a public act?
 
The business license is a local license that is not pursuant to a fundamental right.
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A concealed carry license is not currently "pursuant to an enumerated fundamental right". As has been mentioned quite often in this forum in multiple threads, no single manner of carry is the fundamental right. Carry period is not quite established as an enumerated fundamental right by the Supreme Court Of The United States. The last I heard we had a pretty major circuit split over the issue, with a quarter of the country in conflict with another quarter, and half the country with no opinion.

However, if you want an enumerated fundamental right, 49 states and the District of Columbia offer some level of shield to journalists under the auspices of the Freedom of the Press. Wyoming does not. Does Wyoming have to abide by neighboring Utah's Press Shield Law and Court-Recognized privilege when a reporter from Salt Lake City heads over to Cheyenne to do a story?
 
OK, so my new (and probably temporary) understanding is that there is, in fact, no substance behind FF&C. You get a nominal recognition, but that nominal recognition potentially has no substance whatsoever.

Which is why I don't understand the marriage examples. This seems like a complete contradiction to me:

"And in fact your State B license to marry does mean nothing in State A: It won't allow you to legally contract marriage in State A. "

Well, if it has the effect of preventing me from legally contracting marriage in State A, then clearly my State B license does mean something, right? If it truly meant nothing, how could it have consequences?
 
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