January 3, 2012

MORE TRAPS FOR THE UNWARY: Marine Faces Fifteen Years Behind Bars for Unknowingly Violating Gun Law.

And here’s a roundup on the related Meredith Graves story. Gun owners may want to consider boycotting Bloomberg’s New York, but I believe that these sorts of laws, imposing massive penalties for essentially blameless infractions — mere malum prohibitum — constitute a Second Amendment violation, as I argue in my piece on Second Amendment penumbras, forthcoming in the Southern Caifornia Law Review. And, Second Amendment aside, it seems to me that if a waiting period for new residents to receive state welfare benefits violates the Constitutional right to travel, then surely a patchwork of inconsistent laws bearing extraordinarily harsh penalties does, too.

Of course, a national right-to-carry law would solve this. My proposal: Any state permit is valid in all 50 states. Places where carry is prohibited must be clearly marked. Maximum penalty for a simple violation — that is, not in the course of committing some real crime — $500. Attorney fees and civil-rights suits available against state and local officials who violate the law by infringing people’s rights thereunder.

Would this violate federalism? Not at all. Congress is clearly empowered to protect constitutional rights via legislation. Plus, this could easily be styled as an exercise of Congress’s affirmative power to arm the citizenry in the militia clause of Article 1 section 8. Bonus question for constitutional law geeks: Does the burden on interstate commerce imposed by inconsistent state and local gun laws making people reluctant to travel justify such a bill under the Commerce Clause? Go read Heart of Atlanta Motel and Katzenbach v. McClung.

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