Federal Appeals Court Seems Skeptical of Reciprocity Argument

A three-judge panel on the Eighth Circuit Court of Appeals appears to be skeptical of the arguments used by an over-the-road truck driver challenging Minnesota’s refusal to recognize his Florida and Georgia carry permits. During oral arguments on Wednesday, at least two of the three judges on the panel seemed to have a hard time with Jeffrey Johnson Sr.’s contention that requiring him to get a non-resident permit before he can carry in Minnesota is an unreasonable burden on his Second Amendment rights. 

From Courthouse News:

“If Minnesota can require all of its residents to get a permit, why would it violate the Second Amendment by requiring others to?” U.S. Circuit Judge Steven Grasz, a Donald Trump appointee, asked.

U.S. Circuit Judge Ralph Erickson agreed, piling on to the questioning against Johnson’s attorney, Ryan Morrison.

“Is it your position that, having conceded that the Minnesota permitting process is appropriate for Minnesota residents … that Minnesota must enact a statute that allows reciprocity, or else they’re in violation of the Second Amendment?” Erickson asked. “Do you have a case that says that anywhere in the world?”

The George W. Bush appointee continued with his concern about Morrison’s argument, finding it absurd that those outside of Minnesota shouldn’t be held to the same standard as residents.

“So you have greater rights as a nonresident than as a resident?” Erickson asked. “It just says, if you want to go into Minnesota, you just got to follow the Minnesota permitting process.”

The answer to Erickson’s question is arguably “yes”; non-residents do have greater rights, or at least more leeway, than residents of a particular state. Attorneys Chuck Michel, Anna Barvir, and Kostas Moros raised that point in an amicus brief filed in Gardner v. Maryland, which is another case dealing with the lack of reciprocity.

As the three noted, there’s a national tradition of exempting “travelers” from carry restrictions that states impose on residents that dates back to at least the late 1600’s. 

The historical tradition of these “traveler’s exception” laws is not some outlier, but overwhelming to the point that it justifies this Court summarily reversing the decision below. It is especially relevant here, given the Petitioner was arrested while driving through the state.This tradition began in the colonial era. In 1686, the Province of East Jersey prohibited “privately”wearing various weapons but exempted “all strangers, travelling upon their lawful occasions thro’ this Province, behaving themselves peaceably.” 

An 1813 Kentucky law was perhaps the earliest post-founding example, prohibiting the concealed carry of certain weapons “unless when travelling on a journey.”  An 1820 Indiana law was similar, limiting its concealed carry ban by stating it “shall not be so construed as to affect travellers.”

The brief points out that by 1860, at least three other states (Tennessee, Arkansas, and Alabama) had also banned concealed carry but provided 
“express exceptions for travelers.” And that tradition continued during after the conclusion of the Civil War as well, with Nevada, California, and Texas passing similar laws between 1864 and 1871. 

Unfortunately, Johnson’s attorney didn’t bring up these exceptions when the case was in district court, so he wasn’t able to use them as part of his argument on appeal. 

The good news, though, is that the Supreme Court will consider this history when it takes up Gardner v. Maryland at its April 17th conference. The state of Maryland took note of the Second Amendment Foundation’s amicus brief in its reply to the Gardner cert petition, but I don’t think the state’s attorneys had a great response. 

The traveler was exempt from the local prohibition by virtue of a locally enacted exception—not entitled to recognition of his home-state license. These state-by-state traveler exceptions are therefore not useful to Ms. Gardner’s cause because they do not burden (or, perhaps, liberate through exception) the right to carry a handgun in public for self-defense in any way analogous to the “why” and “how” of Ms. Gardner’s proposed constitutional requirement of nationwide reciprocity. Again, the Bruen test looks to history and tradition to assess whether a “challenged regulation is inconsistent with the Second Amendment”, not whether the Second Amendment makes a desired regulation somehow imperative.

There were no home-state licenses to be recognized when these laws exempting travelers from bans on concealed carry were enacted. As to Maryland’s claim that these laws are not analogous to Gardner’s argument about nationwide reciprocity, what these laws show is there is a national tradition of ensuring that those who are “traveling” are not deprived of their right to bear arms in self-defense, to the point that they were given more leeway than residents. We could consider this an early version of reciprocity, so both the “how” and “why” of these traveler’s exceptions do align with the idea of nationwide reciprocity. 

I wish Johnson’s attorneys (and Gardner’s too, for that matter) had raised these arguments at the district court level, but at least SCOTUS will be able to factor in this history when it decides whether or not to grant cert to Gardner and take up the issue of our Second Amendment rights extending beyond the borders of the state where we reside. 

It’s not enough to say that people can apply for non-resident permits. That takes thousands of dollars, visits to states that require in-person applications, and lengthy wait times that are both unconstitutional and impractical for applicants who can’t wait for six months or more before they might possibly be approved for a permit. Travelers at the time of the Founding weren’t subject to restrictions like this, and gun owners shouldn’t be subjected to them today in order to bear arms beyond the borders of their home state. 

Editor’s Note: The radical left will stop at nothing to enact their radical gun control agenda and strip us of our Second Amendment rights.

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