Exciting times. I think there have been more long-term, ground-breaking, high-stakes historical milestones reached in the past three weeks than in the past three years. (Maybe even three decades?) And instead of reading about it or hearing second- or third-hand inter-generational accounts, I had a real time front row seat. I’m pretty psyched about that. And I learned how to pronounce “Obergefell.”
Few people are more excited about the Obergefell decision than liberal news anchor Rachel Maddow (although conservative anchor S.E. Cupp gave Rachel a run for her money). Maddow spiked the ball on June 26th with a celebration of final riddance at long last from
…all these evolving maps that we’ve tried to keep track of over the years about where you might have rights and where you might not have rights, where your marriage might be recognized and where it would be illegal, where your kids have two parents and [where] maybe they only have one parent and a friend…
As Rachel lamented the unwieldy swamp of legal pitfalls that littered the pre-Obergefell national landscape, I couldn’t help thinking to myself, “that’s exactly how I feel when I’m traveling with firearms!”
And sure enough, since the Obergefell decision, murmurs have grown from a simmer to a boil that Justice Kennedy’s rationale just might relieve some of the headaches of interstate concealed carry. Somebody at Breitbart (who likes the traditional definition of marriage but hates the traditional spelling of “judgment”) interpreted Obergefell to mean that handgun permits — like marriage licenses — are now “beyond a state-by-state prerogative via the 14th Amendment.” Similar sentiments rang out from BearingArms.com. Although some of its readers recently made me throw up in my mouth a little bit, my hiatus from the site was interrupted by this headline: “SCOTUS Ruling On Same-Sex Marriage Mandates Nationwide Concealed Carry Reciprocity.” A post on Guns.com pondered the same question, with anecdotal illustrations of how the states’ disparate regulations can lead to absurd consequences for otherwise law-abiding concealed carriers.
As much as I’d love to be able to skip the six hours of legal research every time I take a road trip, I’m not convinced that Obergefell “mandates” universal reciprocity. And that provocative word was more than just a rhetorical steak to be dangled in front of BearingArms.com defectors like me. The author unequivocally declares that although “14 states did not recognize my concealed carry permit yesterday,” as of “[t]oday they must.” Buried in the fine print is an admission that this optimistic view of post-Obergefell America is only the way things “would seem” as opposed to the way things actually are. Still, the article throws around a few too many “musts” and “mandates” to really take that disclaimer seriously.
I do think Obergefell warrants a bit of gaiety from pro-gun advocates. I agree that it could be an effective weapon in the reciprocity war chest. Kennedy’s soaring language will surely ripple well beyond the relatively narrow context of marriage rights, so some degree of cautious optimism is in order. But if you plan on waiving a copy of the opinion when you get pulled over carrying illegally out-of-state, don’t be surprised if the highway patrol officer shoves that opinion right up your self-righteous nostril.
Before anyone jumps the gun on all this, let’s be clear. Obergefell doesn’t hold that anybody can marry anybody anytime just because it’s a fundamental right. More specifically, it holds that marriage bans are “invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.” When applying this legal rule in the context of permit reciprocity, the pivotal question is not whether any permit is ever denied, but whether some are arbitrarily denied under “the same terms and conditions” by which others are granted.
Playing devil’s advocate, herein lies the potential counter-argument for anti-gunners. Other than nominal differences in fee amounts and accepted forms of identification, the requirements to get married are pretty much the same across the country. You’ve gotta be grown, willing, and not already married. That’s about it. In Shelby County, adult couples only need photo ID and 97 bucks. In Los Angeles County, it’s photo ID and 91 bucks. In Story County, Iowa (which has the world’s most adorable website, BTW), it’s a whopping 35 bucks. But the running theme is the same: grown, willing, heretofore single.
Now, contrast that with concealed carry regs. Basic administrative stuff doesn’t change a lot (can’t be a kid, a criminal, a crack-head, or crazy). But when it comes to actual competency, states do vary more widely. In Tennessee, we need eight hours of training. For visitors, we honor permits from all other states, regardless of their training requirements. But if you’re going to live here, you gotta put in your eight hours. And yet, if I were to move twenty minutes south to Desoto County, Mississippi, I could get a permit with no training whatsoever. While both states are gun-friendly, I’m not sure if Tennessee would appreciate SCOTUS forcing it to lower its standards on safety training. And then there’s California, where you have to pass a written test just to own a firearm… But that’s a-whole-nother story…
So then I got to thinking about counter-counter-arguments. The other state-issued license that enjoys universal reciprocity is the driver’s license. (Incidentally, the freedom to move from place to place or from state to state is also considered a fundamental right, though not necessarily by car.) Are there any states that license drivers without any showing of competence or safety? Does any state issue a license with no road test? I’m not sure, but my ten minutes of Googling didn’t reveal any. If all states have similar requirements for issuing driver’s licenses, then perhaps marriage is more akin to driving than to concealed carry — at least for purposes of extending the Obergefell decision.
I’m starting to ramble, so I’ll close. The main point I wanted to make is this: Whoa, Nelly. Not so fast. We have to be smart. Lasting legal milestones are rarely achieved by snap judgments or hot-headed demagoguery. They far more often require shrewdness, nuance, and finesse, especially when it comes to setting and using legal precedents (just ask the opponents of Prop 8). Let’s keep Obergefell at the ready, but I’m not sure it’s time to open fire just yet.