A question of law

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A question of law

Post by NT2C » Mon Jun 19, 2017 10:33 am

In my state (Virginia) concealed handgun permits are issued by the clerk of the county courts, not by the state police or the county sheriff. Article 4, section 1 of the United States Constitution says:
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.
This is the clause that makes your marriage license or marriage certificate issued in one state valid in the other 49. It does the same for your driver's license and vehicle registration. Furthermore, in the case of driver's licenses and vehicle registrations it makes it so that as long as you or your vehicle are legal in your home state, you're legal in any of the other 49. If for example, state "A" allows you to get a full license at age 16, but state "B" requires you to be 18 for that, you're still legal if you're 16 and you drive from state "A" to state "B". You still have to obey state "B's" traffic laws, such as not turning right on red if your state allows it but "B" doesn't, but as long as you do you're operating legally, even though you might not qualify for a driver's license if you lived in state "B".

So, shouldn't my Virgina CHP be valid in all 50 states?

Yes, I know about the National Reciprocity Act currently working its way through Congress. We can't discuss that here because that's political in nature since it isn't law yet. Keeping the discussion focused only on current laws I'd like to kick this idea around a bit. Personally, I have no desire to actually test this theory by doing something stupid which could land me in jail, such as crossing the state line from VA to DC or MD, where my permit is not currently recognized. No, I'll leave that legal battle to someone with deeper pockets and better lawyers than I have, but it's still something that interests me because it would have a direct influence on me if it were so. I do regularly travel to both DC and MD, and would prefer not to have to leave my EDC home when I do. Furthermore, the wife and I are planning a move to the PNW in the future. She's from Lewiston, Idaho and we want to move out there to help care for her elderly parents. My permit is valid in Idaho when we visit there, but not on the other side of the river in Clarkston, Washington, where her brother and nephew live, and where a lot of the local stores are, nor is it recognized in Oregon or California, where other family members live that we want to visit. So, if Article 4, Section 1 were applicable I'd be perfectly legal carrying concealed there, while I'm not now the way the laws are being applied.

Am I looking at this wrong? Is there a flaw in my thinking on this? What do you folks think?
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Re: A question of law

Post by Beowolf » Mon Jun 19, 2017 11:37 am

My first thought is that it is a permit and not an Act, etc. Simply a legal distinction on the role of the document.

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Re: A question of law

Post by raptor » Mon Jun 19, 2017 11:44 am

Avoiding politics here. I am not an attorney but I have paid many an awful lot of money over the years.

IMO your argument has some merit (I am biased though) but it is an argument that you would make in court. No LEO or DA would accept that at face value.Which would not be good for you since it would likely be in front of a judge at a criminal proceeding.

In fact I suspect that a local DA in an 2nd amendment unfriendly area would likely see this as a challenge to their authority and ability to regulate this issue. In other words it would piss them off.

The simplest, cheapest and least likely way to avoid deciding this in a criminal court would be to file suit in a federal court in the region covering the location you wanted to access and seek a declaratory judgement.

I would note that many states regulate the practice of law, accounting, medicine, pharmacy, dentisty, hair cutting, etc. These require state issued licenses which rarely have reciprocity across state lines.

These are not quite the same thing since it involves commerce but I am sure these questions have been litigated. You may want to search for cases dealing with this issue.

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Re: A question of law

Post by NT2C » Mon Jun 19, 2017 11:50 am

That's a good point Beo. It does clearly say on it that it is issued by the court though, complete with a court file number, so I would submit that it is both a "Record" and a "Judicial Proceeding", which should place it under the protection of that clause.
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Re: A question of law

Post by NT2C » Mon Jun 19, 2017 11:56 am

Raptor, I like your point about other state-issued licenses. My response to that though is that such licenses are generally issued by state regulatory bodies and not actual courts. The Virginia CHP is issued by an actual court though. (Stafford County Circuit Court in my case)

And yeah, there's no doubt that this would be seen as a direct challenge to their authority by a lot of very powerful people. It'd piss 'em off to no end. :lol:
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Re: A question of law

Post by Stercutus » Mon Jun 19, 2017 12:11 pm

In Robertson v. Baldwin the SCOTUS ruled that permits do not violate the 2nd amendment. This was affirmed in DC v Heller. Restrictions on carrying concealed weapons are lawful for a state to impose.

The problem is that each state has different restrictions on carrying weapons. In my state for a CHL to be issued the Sheriff's office runs a NCIC check to see if you are a felon or convicted of DV at the window and you pay $10 a year for a permit, up to five years.

In Texas you have to:

- Submit fingerprints
- Take and pass a training class
- More extensive Background check
- etc, etc

So Texas can decide to not honor a permit from somewhere else because they did not meet the requirements for carrying in Texas.
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Re: A question of law

Post by raptor » Mon Jun 19, 2017 12:27 pm

KJ4VOV wrote:Raptor, I like your point about other state-issued licenses. My response to that though is that such licenses are generally issued by state regulatory bodies and not actual courts. The Virginia CHP is issued by an actual court though. (Stafford County Circuit Court in my case)
I agree the state license issue it is not an apples to apples comparison since it involves in state commerce. That said I would be shocked if there was not litigation involving the issue which may shed some light on other arguments.

Personally I think you are correct but then I am also very biased in the matter and my opinion and $5 will get you a cup of coffee. That said I think it comes under the heading of just because you have the right/ability to do something, it does not mean it is wise to take that action.

I would strongly suggest keeping this theoretical.

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Re: A question of law

Post by NT2C » Mon Jun 19, 2017 12:31 pm

Oh yes, theoretical to the extreme. I have zero desire to be trying to argue this before a court with my freedom in the balance. :lol:
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Re: A question of law

Post by NT2C » Mon Jun 19, 2017 1:37 pm

Stercutus wrote:In Robertson v. Baldwin the SCOTUS ruled that permits do not violate the 2nd amendment. This was affirmed in DC v Heller. Restrictions on carrying concealed weapons are lawful for a state to impose.

The problem is that each state has different restrictions on carrying weapons. In my state for a CHL to be issued the Sheriff's office runs a NCIC check to see if you are a felon or convicted of DV at the window and you pay $10 a year for a permit, up to five years.

In Texas you have to:

- Submit fingerprints
- Take and pass a training class
- More extensive Background check
- etc, etc

So Texas can decide to not honor a permit from somewhere else because they did not meet the requirements for carrying in Texas.
The point I'm trying to raise though is not the legality of permits under the 2nd but the validity of a court issued permit outside of the state issuing it. As you pointed out, in your state, this is done through the sheriff's office, not the court. Not being a "judicial proceeding" it would not receive protection under the Article 4, section 1 clause. Virginia permits, OTOH, are issued as a judicial proceeding by the clerk of the court and, as such, should be protected by the Constitution, which would prevent any state from refusing to honor it. The most a state would be able to do would be to compel the bearer to abide by the same restrictions its own state residents have to follow after they received their permit/license, similar to how out of state drivers have to obey the state's traffic laws.

At least, that's the way I'm seeing it. Of course, my viewpoint means diddly-squat, and it's up to the relevant courts to decide how this works (and deal with the inevitable challenges afterward) but it's an interesting subject to discuss and speculate on.
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Re: A question of law

Post by Stercutus » Mon Jun 19, 2017 2:03 pm

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Re: A question of law

Post by NT2C » Mon Jun 19, 2017 2:57 pm

Stercutus wrote:Ah, ok here you go:

http://www.nationalreview.com/article/4 ... ates-solve
Thanks, but that article is about the National Reciprocity Act, which we cannot and are not discussing here because it's 100% pure politics at this point, not being enacted into law.

And you still don't seem to be understanding the point I'm making, which is less about concealed carry than it is about the Constitutional mandate that judicial proceedings from one state must be recognized and honored by all the states. This just happens to be a judicial proceeding about carrying a handgun concealed, but could just as well be about any other judicial proceeding, such as marriage, divorce, property ownership, guardianship, etc. If a Virginia court clerk issues you a marriage certificate that says you are legally married and have all the rights, privileges and obligations that entails, and you cross into Maryland, you don't suddenly become single again. Or married again in the case of divorce. If you buy a house in Virginia and get the title deed in your name from the clerk, the house doesn't revert back to whoever owned it before if you go out of state on a vacation. Likewise, if you legally adopt a child in Virginia, and then move to Maryland, Maryland doesn't get to charge you with kidnapping.
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Re: A question of law

Post by Stercutus » Mon Jun 19, 2017 6:59 pm

Guess you must have skimmed it. Gotta read the whole thing:
There is, however, a constitutional defense of concealed-carry reciprocity that works, one recently advanced by a trio of highly respected constitutional scholars. It’s rooted in the much-neglected and much-misunderstood Full Faith and Credit Clause:

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.

To modern eyes, it’s a confusing jumble of words. If states are constitutionally obligated to give “full” faith and credit to other states’ laws, what is there left for Congress to “prescribe” about the laws’ “Effects”? It’s a question courts have struggled with as well. As the law professor Ralph U. Whitten has explained, current precedent interprets the clause as requiring states to enforce one another’s laws, and the courts themselves, not Congress, get to decide the limits of this requirement. According to the courts, the clause makes an “exacting” demand of states when it comes to other states’ court judgments (particularly monetary judgments), yet simultaneously allows states a lot of leeway when it comes to conflicting statutes (via the “public-policy exception”) — a distinction nowhere to be found in the constitutional text, which puts “public Acts, Records, and judicial Proceedings” on the same footing. The clause’s second sentence, meanwhile, is virtually impotent in this reading, because Congress doesn’t get much say as to the “Effect” of states’ laws outside their borders.

But in recent years, scholars have managed to excavate the original meaning of these two sentences. It turns out that “Faith” and “Credit” are mere evidentiary terms — and thus it’s the first sentence, rather than the second, that should be relatively toothless. As Stephen E. Sachs of Yale has put it, the first sentence “obliged states to admit sister-state records into evidence but did not mandate the substantive effect those records should have. The real significance of the Clause was the power it granted to Congress to specify that effect later.”
Read more at: http://www.nationalreview.com/article/4 ... ates-solve
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Re: A question of law

Post by raptor » Mon Jun 19, 2017 8:21 pm

As Stephen E. Sachs of Yale has put it, the first sentence “obliged states to admit sister-state records into evidence but did not mandate the substantive effect those records should have.
Good find.

That is why a judgement issued by a judge in one state has to be "approved" by a judge in another state for it to be enforceable in the other state.

Thank you! I learned some new today.

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Re: A question of law

Post by NT2C » Mon Jun 19, 2017 10:48 pm

Stercutus wrote:Guess you must have skimmed it. Gotta read the whole thing:
There is, however, a constitutional defense of concealed-carry reciprocity that works, one recently advanced by a trio of highly respected constitutional scholars. It’s rooted in the much-neglected and much-misunderstood Full Faith and Credit Clause:

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.

To modern eyes, it’s a confusing jumble of words. If states are constitutionally obligated to give “full” faith and credit to other states’ laws, what is there left for Congress to “prescribe” about the laws’ “Effects”? It’s a question courts have struggled with as well. As the law professor Ralph U. Whitten has explained, current precedent interprets the clause as requiring states to enforce one another’s laws, and the courts themselves, not Congress, get to decide the limits of this requirement. According to the courts, the clause makes an “exacting” demand of states when it comes to other states’ court judgments (particularly monetary judgments), yet simultaneously allows states a lot of leeway when it comes to conflicting statutes (via the “public-policy exception”) — a distinction nowhere to be found in the constitutional text, which puts “public Acts, Records, and judicial Proceedings” on the same footing. The clause’s second sentence, meanwhile, is virtually impotent in this reading, because Congress doesn’t get much say as to the “Effect” of states’ laws outside their borders.

But in recent years, scholars have managed to excavate the original meaning of these two sentences. It turns out that “Faith” and “Credit” are mere evidentiary terms — and thus it’s the first sentence, rather than the second, that should be relatively toothless. As Stephen E. Sachs of Yale has put it, the first sentence “obliged states to admit sister-state records into evidence but did not mandate the substantive effect those records should have. The real significance of the Clause was the power it granted to Congress to specify that effect later.”
Read more at: http://www.nationalreview.com/article/4 ... ates-solve
You're right, I did skim it. Once I hit text talking about the National Reciprocity Act I stopped reading and dismissed it, because that's a political can of worms we can't open here. Okay, so if it should be interpreted the way these scholars claim, then that is going to play hob with everything we've built upon the "incorrect" interpretation. I can't see SCOUS or Congress wanting that to happen. I'll have to read this again and delve deeper into the other material to try and get a firmer grasp of it. Thanks for bringing it to my attention.
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Re: A question of law

Post by 2now » Thu Jun 22, 2017 9:23 pm

First question: do you really have a permit to carry a weapon or a permit to carry a weapon in state “X”. If the issuing state is only claiming to allow you to carry in a given location [state"X"] full faith and credit would not apply to any other locations.

Now hypothetically a state could issue a 'can carry anywhere' permit and specially ask other state to honor it's judgment that you are good to carry. But I do not believe that any state does so.

A state cannot be expected to grant something that the other state has not asked for...however much we want it.
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Re: A question of law

Post by NT2C » Thu Jun 22, 2017 10:11 pm

2now wrote:First question: do you really have a permit to carry a weapon or a permit to carry a weapon in state “X”. If the issuing state is only claiming to allow you to carry in a given location [state"X"] full faith and credit would not apply to any other locations.

Now hypothetically a state could issue a 'can carry anywhere' permit and specially ask other state to honor it's judgment that you are good to carry. But I do not believe that any state does so.

A state cannot be expected to grant something that the other state has not asked for...however much we want it.
I believe I answered your question in the first post of this thread.

Regarding your hypothetical, isn't that exactly what we do with marriage licenses? Do we require that people get remarried if they cross state lines? No, of course we don't. Do we require you to stop and reregister your vehicle when crossing state lines? No, we don't. Why are some licenses and legal proceedings recognized in every state and others (professional licenses for example) aren't?
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