STEPHEN E. SACHSPROFESSOR OF LAW
DUKE UNIVERSITY SCHOOL OF LAW
210 SCIENCE DRIVE
BOX 90360 • DURHAM, NC 27708–0360
TEL 919–613–8542
SACHS@LAW .DUKE.EDU

March 23, 2017
BY FIRST-CLASS MAIL

The Hon. Trey Gowdy
Subcomm. on Crime, Terrorism, Homeland Sec’y & Investigations
2418 Rayburn HOB
Washington, DC 20515
The Hon. Richard Hudson
429 Cannon HOB
Washington, DC 20515
The Hon. Justin Amash
114 Cannon HOB
Washington, DC 20515
RE: H.R. 38, Concealed Carry Reciprocity Act of 2017

Dear Chairman Gowdy, Rep. Hudson, and Rep. Amash:
Prof. Randy Barnett (Georgetown University Law Center), Prof. William Baude (University of Chicago Law School), and I write to suggest
amendments to H.R. 38, the “Concealed Carry Reciprocity Act of2017.” As drafted, the bill faces substantial constitutional objections, butthese can be fixed with relatively minor changes. Rather than invoking
the Commerce Clause, the bill should instead rely on Congress’s power
under the Full Faith and Credit Clause of Article IV. The bill should
also avoid any unconstitutional attempt to abrogate the states’ sovereign immunity.
(To be clear, we write solely in our capacities as private citizens, without
representing our institutions and without expressing any view on the
merits of the bill as a whole.)

The Hons. Trey Gowdy, Richard Hudson & Justin Amash
RE: H.R. 38, Concealed Carry Reciprocity Act of 2017
March 23, 2017
Page 2The current draft bill conditions the right to carry a concealed handgun
on whether the handgun was shipped or transported in interstate or
foreign commerce. H.R. 38 does not directly regulate “Commerce withforeign Nations, and among the several States,” U.S. Const. art. I, § 8,
cl. 3. Instead, it assumes that a handgun’s past movement in cross-border commerce subjects the handgun to federal regulation forever after.
This is a broad and unjustified assertion of federal power. David Engdahl of Seattle University has called this the “‘herpes’ theory” of interstate commerce, whereby “some lingering federal power infects whatever has passed through the federal dominion.” D. Engdahl, The Necessary and Proper Clause as an Intrinsic Restraint on Federal Lawmaking
Power, 22 Harv. J.L. & Pub. Pol’y 107, 120 (1998). As Chief Justice
Roberts wrote of the health insurance mandate, Congress has “power
to regulate class[es] of activities, not classes of individuals, apart fromany activity in which they are engaged.” NFIB v. Sebelius, 132 S. Ct. 2566,
2590 (2012) (alteration in original) (citations and internal quotation
marks omitted). Those who lawfully carry concealed handguns within
the body of a state are not engaging in commerce across state lines, andCongress should not treat them as if they were.
By stretching the limits of the Commerce Clause, the current draft unnecessarily limits the bill’s support among constitutional conservatives.
(We believe that Rep. Amash, among others, has criticized prior versions of the bill on these grounds.) If Congress can confer a right tocarry firearms that once crossed state lines, regardless of state law, thena future Congress could restrict the carrying of firearms that oncecrossed state lines, regardless of state law. Indeed, the federal government could even purport to regulate how Americans brush their teeth,
so long as their toothbrushes had previously been shipped across statelines. (Or just the bristles, or the crude oil that was made into plastic,or . . . . ) In light of precedent, courts are unlikely to strike down every
statute that claims this power. But that is no reason for Congress toenact more.

The Hons. Trey Gowdy, Richard Hudson & Justin Amash
RE: H.R. 38, Concealed Carry Reciprocity Act of 2017
March 23, 2017
Page 3

Relying on the Commerce Clause also creates a hole in the bill’s coverage and a potential trap for law-abiding citizens. H.R. 38 does not protect a permitholder who travels to another state and there purchases
and carries a handgun manufactured in-state—a handgun left outside
the bill’s coverage because it has never left that state’s borders. There is
no reason to make a lawful permitholder, who reasonably believes that
he is protected by a federal reciprocity statute, into a criminal simply forpurchasing and carrying a gun where it was made.
Congress has other powers that would be more appropriate. The Full
Faith and Credit Clause empowers Congress to “prescribe * * * theEﬀect” of state acts, records, or judicial proceedings in other states. U.S.
Const. art. IV, § 1. For instance, the Full Faith and Credit for Child
Support Orders Act requires certain state child support laws to be given
their full eﬀect in every other state. See 28 U.S.C. § 1738B(h). Similarly,
the Parental Kidnaping Prevention Act requires every state to recognize
certain child custody judgments from other states, and it forbids themfrom exercising their ordinary jurisdiction over such disputes. See 28
U.S.C. § 1738A.
Congress has used this power only rarely, but soon after the Founding
it often debated doing so. See generally S. Sachs, Full Faith and Credit
in the Early Congress, 95 Va. L. Rev. 1201 (2009). For example, a bill in
the Thirteenth Congress would have entitled the executor of a will or
the administrator of an estate to exercise similar authority in other states
where the decedent held property. H.R. 45, 13th Cong., 2d Sess., § 4(1814). Another bill in the Fifteenth Congress would have made theauthority of bail bondsmen in one state legally eﬀective in every otherstate, so that bondsmen could recapture fugitives who had fled acrossstate lines. H.R. 17, 15th Cong., 1st Sess. § 2 (1817). Despite the paucity
of judicial precedent construing this clause, the legislative precedent
portrays its scope as quite broad.
To achieve reciprocity in concealed-carry rights across state lines, theFull Faith and Credit Clause would seem a natural choice. It avoids

The Hons. Trey Gowdy, Richard Hudson & Justin Amash
RE: H.R. 38, Concealed Carry Reciprocity Act of 2017
March 23, 2017
Page 4

reliance on the Commerce Clause without making it necessary to address diﬃcult issues regarding another possible ground for the bill,
namely Congress’s power under Section 5 of the Fourteenth Amendment to enforce Section 1. Compare, e.g., National Right-to-Carry Reciprocity Act of 2011: Hearing before the Subcomm. on Crime, Terrorism &Homeland Sec’y of the H. Comm. on the Judiciary, 112th Cong. 27–50(statement of David B. Kopel) (arguing that the enforcement power
can support a reciprocity requirement), with J. Blocher, Constitutional
Hurdles for Concealed Carry Reciprocity, Take Care (Mar. 16, 2017),
http://takecareblog.com/blog/constitutional-hurdles-for-concealedcarry-reciprocity (arguing that it cannot). We express no view on thisdebate; but we note that, were the statute ever litigated, the government could always assert the Section 5 power as an alternative defense,
even if its primary defense sounds in Full Faith and Credit.
Rephrasing the bill in this way could also correct three unrelated statutory problems. First, the bill as written enables permitholders to carryhandguns, without specifying whether the handgun involved is within
the scope of the original state law or permit. A simple reciprocity statuteshould confer no broader right than the underlying permit. Second, thecurrent language of H.R. 38 is ambiguous as to the eﬀect of permits
that states might issue to nonresidents. (The phrase “in the State inwhich the person resides” in the proposed 18 U.S.C. § 926D(a) might
attach only to “is entitled to carry a concealed firearm,” or it might
attach also to “valid license or permit * * * which permits the person
to carry a concealed firearm,” thereby excluding permits for nonresidents.) Third, the protection in the current bill extends only to otherstates; its text does not discuss the District of Columbia or the territories and possessions of the United States mentioned in the Full Faith
and Credit Statute, 28 U.S.C. § 1738.
These issues are addressed in the following draft language:“§ 926D. Reciprocity for the carrying of certain concealed firearms“(a) Notwithstanding any provision of the law of any State or politicalsubdivision thereof (except as provided in subsection (b)) and subject only
to the requirements of this section, any valid license or permit which is issued

The Hons. Trey Gowdy, Richard Hudson & Justin Amash
RE: H.R. 38, Concealed Carry Reciprocity Act of 2017
March 23, 2017
Page 5

pursuant to the law of a State and which permits a person to carry a concealed
firearm, and any other act, record, or judicial proceeding of a State which
entitles a person who resides in such State to carry a concealed firearm, shallhave the same eﬀect as it has by law or usage in its State of origin, with respect
to a person who is not prohibited by Federal law from possessing, transporting, shipping, or receiving a firearm, who is carrying a valid identification
document containing a photograph of the person, who (in the case of a valid
license or permit) is carrying such license or permit, and who possesses or
carries a concealed handgun (other than a machinegun or destructive device),in every other State that—“(1) has a statute under which residents of the State may apply for alicense or permit to carry a concealed firearm; or“(2) does not prohibit the carrying of concealed firearms by residentsof the State for lawful purposes.
“As used in this section, the term ‘State’ shall include the District of Columbia and any Territory or Possession of the United States.

Finally, we note that H.R. 38 as written may unconstitutionally abrogate
state sovereign immunity. The proposed § 926D(d)(1) authorizes lawsuits “in any appropriate court against any other person, including aState * * * .” Despite the word “appropriate,” this language appears to
support private lawsuits against unconsenting states, in precisely themanner thought forbidden in Seminole Tribe of Florida v. Florida, 517
U.S. 44, 72–73 (1996). The Supreme Court has upheld such abrogation
under Section 5 of the Fourteenth Amendment (and, perhaps, underthe Bankruptcy Clause), but not under the Commerce Clause. Compare Seminole Tribe, 517 U.S. at 73, with Fitzpatrick v. Bitzer, 427 U. S.
445, 452–56 (1976), and Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356(2006). Whether the Full Faith and Credit Clause confers any power
to abrogate sovereign immunity is at best unclear. To avoid these uncertainties, it would be better to include a clear proviso, along the linesof 15 U.S.C. § 378(c)(1)(B), that “This paragraph shall not be construed
to abrogate, or otherwise to restrict, expand, or modify, the sovereign
immunity of a State.”
The remainder of the statute would then remain intact. (A redlined
comparison and a full “clean” copy of the revised bill are included as
appendices to this letter.)The Hons. Trey Gowdy, Richard Hudson & Justin Amash
RE: H.R. 38, Concealed Carry Reciprocity Act of 2017
March 23, 2017
Page 6

We would be happy to discuss these matters with you or the membersof your staﬀ. Prof. Sachs can be reached by email at sachs@law.duke.edu
or by phone at 919–613–8542; Prof. Barnett can be reached by email at
rb325@law.georgetown.edu or by phone at 202–662–9936; and Prof.
Baude can be reached by email at baude@uchicago.edu or by phone at
773–702–0348.
Thank you very much for your time and consideration.
Respectfully,
STEPHEN E. SACHS

Professor of Law
Duke University School of Law
R A N DY E . B A R N E T T

Carmack Waterhouse Professor of Legal Theory
Director, Georgetown Center for the Constitution
Georgetown University Law Center
WILLIAM BAUDE

Neubauer Family Assistant Professor of Law
University of Chicago Law School

EnclosureCC:

Sen. John Cornyn
Chris W. Cox, NRA Institute for Legislative Action

The Hons. Trey Gowdy, Richard Hudson & Justin Amash
RE: H.R. 38, Concealed Carry Reciprocity Act of 2017
March 23, 2017
Page 1a
APPENDIX A

Redlined Comparison
Existing Text:

Revised Text:“§ 926D. Reciprocity for the carrying of certain
concealed firearms“(a) Notwithstanding any provision of the law of
any State or political subdivision thereof (except asprovided in subsection (b)) and subject only to therequirements of this section, a person who is not prohibited by Federal law from possessing, transporting, shipping, or receiving a firearm, who is carrying
a valid identification document containing a photograph of the person, and who is carrying a valid license or permit which is issued pursuant to the lawof a State and which permits the person to carry aconcealed firearm or is entitled to carry a concealed
firearm in the State in which the person resides,
may possess or carry a concealed handgun (otherthan a machinegun or destructive device) that has
been shipped or transported in interstate or foreigncommerce, in any State that—“(1) has a statute under which residents of
the State may apply for a license or permit tocarry a concealed firearm; or“(2) does not prohibit the carrying of concealed firearms by residents of the State for lawful purposes.
* * *“(d)(1) A person who is deprived of any right,
privilege, or immunity secured by this section, undercolor of any statute, ordinance, regulation, custom,or usage of any State or any political subdivision
thereof, may bring an action in any appropriate
court against any other person, including a State orpolitical subdivision thereof, who causes the person
to be subject to the deprivation, for damages or otherappropriate relief.

“§ 926D. Reciprocity for the carrying of certain
concealed firearms“(a) Notwithstanding any provision of the law of
any State or political subdivision thereof (except asprovided in subsection (b)) and subject only to therequirements of this section, any valid license or permit which is issued pursuant to the law of a Stateand which permits a person to carry a concealed firearm, and any other act, record, or judicial proceedingof a State which entitles a person who resides insuch State to carry a concealed firearm, shall havethe same effect as it has by law or usage in its Stateof origin, with respect to a person who is not prohibited by Federal law from possessing, transporting,shipping, or receiving a firearm, who is carrying avalid identification document containing a photograph of the person, who (in the case of a valid license or permit) is carrying such license or permit,
and who possesses or carries a concealed handgun(other than a machinegun or destructive device), in
every other State that—“(1) has a statute under which residents of
the State may apply for a license or permit tocarry a concealed firearm; or“(2) does not prohibit the carrying of concealed firearms by residents of the State for lawful purposes.
“As used in this section, the term ‘State’ shall
include the District of Columbia and any Territory
or Possession of the United States.
* * *“(d)(1) A person who is deprived of any right,
privilege, or immunity secured by this section, undercolor of any statute, ordinance, regulation, custom,or usage of any State or any political subdivision
thereof, may bring an action in any appropriate
court against any other person, including a State orpolitical subdivision thereof, who causes the person
to be subject to the deprivation, for damages or otherappropriate relief. This paragraph shall not be construed to abrogate, or otherwise to restrict, expand,or modify, the sovereign immunity of a State.

The Hons. Trey Gowdy, Richard Hudson & Justin Amash
RE: H.R. 38, Concealed Carry Reciprocity Act of 2017
March 23, 2017
Page 2a
APPENDIX B

Full Text of Revised BillA BILLTo amend title 18, United States Code, to provide a means by which nonresidents ofa State whose residents may carry concealed firearms may also do so in the State.
Be it enacted by the Senate and House of Representatives of the United States ofAmerica in Congress assembled,
SEC. 1. Short Title.
This Act may be cited as the “Concealed Carry Reciprocity Act of 2017”.
SEC. 2. Reciprocity for the Carrying of Certain Concealed Firearms.
(a) IN GENERAL.—Chapter 44 of title 18, United States Code, is amended by inserting after section 926C the following:“§ 926D. Reciprocity for the carrying of certain concealed firearms“(a) Notwithstanding any provision of the law of any State or political subdivision thereof (except as provided in subsection (b)) and subject only to the requirements of this section, any valid license or permit which is issued pursuant to thelaw of a State and which permits a person to carry a concealed firearm, and anyother act, record, or judicial proceeding of a State which entitles a person who resides in such State to carry a concealed firearm, shall have the same effect as it has
by law or usage in its State of origin, with respect to a person who is not prohibitedby Federal law from possessing, transporting, shipping, or receiving a firearm, who
is carrying a valid identification document containing a photograph of the person,
who (in the case of a valid license or permit) is carrying such license or permit, andwho possesses or carries a concealed handgun (other than a machinegun or destructive device), in every other State that—“(1) has a statute under which residents of the State may apply for a licenseor permit to carry a concealed firearm; or“(2) does not prohibit the carrying of concealed firearms by residents of theState for lawful purposes.
“As used in this section, the term ‘State’ shall include the District of Columbia
and any Territory or Possession of the United States.

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March 23, 2017
Page 3a“(b) This section shall not be construed to supersede or limit the laws of any
State that—“(1) permit private persons or entities to prohibit or restrict the possession ofconcealed firearms on their property; or“(2) prohibit or restrict the possession of firearms on any State or local government property, installation, building, base, or park.
“(c)(1) A person who carries or possesses a concealed handgun in accordance withsubsections (a) and (b) may not be arrested or otherwise detained for violation of
any law or any rule or regulation of a State or any political subdivision thereof related to the possession, transportation, or carrying of firearms unless there is probable cause to believe that the person is doing so in a manner not provided for by thissection. Presentation of facially valid documents as specified in subsection (a) is
prima facie evidence that the individual has a license or permit as required by thissection.
“(2) When a person asserts this section as a defense in a criminal proceeding,the prosecution shall bear the burden of proving, beyond a reasonable doubt,that the conduct of the person did not satisfy the conditions set forth in subsections (a) and (b).
“(3) When a person successfully asserts this section as a defense in a criminal
proceeding, the court shall award the prevailing defendant a reasonable attorney’s fee.
“(d)(1) A person who is deprived of any right, privilege, or immunity secured bythis section, under color of any statute, ordinance, regulation, custom, or usage of
any State or any political subdivision thereof, may bring an action in any appropriate court against any other person, including a State or political subdivision thereof,
who causes the person to be subject to the deprivation, for damages or other appropriate relief. This paragraph shall not be construed to abrogate, or otherwise to restrict, expand, or modify, the sovereign immunity of a State.
“(2) The court shall award a plaintiff prevailing in an action brought underparagraph (1) damages and such other relief as the court deems appropriate, including a reasonable attorney’s fee.
“(e) In subsection (a):“(1) The term ‘identification document’ means a document made or issued byor under the authority of the United States Government, a State, or a political

The Hons. Trey Gowdy, Richard Hudson & Justin Amash
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Page 4asubdivision of a State which, when completed with information concerning a particular individual, is of a type intended or commonly accepted for the purpose ofidentification of individuals.
“(2) The term ‘handgun’ includes any magazine for use in a handgun and any
ammunition loaded into the handgun or its magazine.
“(f)(1) A person who possesses or carries a concealed handgun under subsection(a) shall not be subject to the prohibitions of section 922(q) with respect to that
handgun.
“(2) A person possessing or carrying a concealed handgun in a State undersubsection (a) may do so in any of the following areas in the State that are open
to the public:“(A) A unit of the National Park System.
“(B) A unit of the National Wildlife Refuge System.
“(C) Public land under the jurisdiction of the Bureau of Land Management.
“(D) Land administered and managed by the Army Corps of Engineers.
“(E) Land administered and managed by the Bureau of Reclamation.”.
(b) CLERICAL AMENDMENT.—The table of sections for such chapter is amended byinserting after the item relating to section 926C the following:“926D. Reciprocity for the carrying of certain concealed firearms.”.

(c) SEVERABILITY.—Notwithstanding any other provision of this Act, if any provision of this section, or any amendment made by this section, or the application ofsuch provision or amendment to any person or circumstance is held to be unconstitutional, this section and amendments made by this section and the application ofsuch provision or amendment to other persons or circumstances shall not be affected thereby.
(d) EFFECTIVE DATE.—The amendments made by this section shall take effect 90
days after the date of the enactment of this Act.