Passage of this bill (H.R. 38) in the House is huge and is strongly endorsed by MSI. The bill contains multiple provisions greatly strengthening the rights of individuals with concealed carry permits and and of residents of constitutional carry states that allow concealed carry without a permit.
First, and most importantly, the bill creates a new section in the United States Code (18 U.S.C. 926D) to provide that a not otherwise disqualified person who has been issued a concealed carry permit by "a State" and who is carrying a valid State-issued form of photo identification, "may possess and carry a concealed handgun" in any State that otherwise issues carry permits to its residents and does not otherwise prohibit such concealed carry for lawful purposes by its residents. Furthermore, this protection is extended to persons who are "entitled to carry a concealed firearm in the State in which the person resides," thereby including residents of constitutional carry states to the extent that state law permits such persons to carry concealed without a permit. Note that this only applies to states that allow concealed constitutional carry -- not to states (like Virginia) that allow only open carry without a permit. In all instances, the person carrying must still comply with a State's restrictions on carrying in any "State or local government property, installation, base or park" and the bill does not supersede any state law that permits a private person or entity to ban carry on private property. All other State laws in conflict with the concealed carry permitted by the bill are superseded and thus preempted by this bill. These preemption provisions thus bar State-imposed restrictive time, place and manner restrictions not otherwise permitted by the bill.
Second, the bill creates real procedural protections against arbitrary arrest or detention of persons who carry in the manner permitted by the bill, expressly providing that such persons "may not be arrested or otherwise detained" for any violation of State or local law that would otherwise make illegal the concealed carry permitted by the bill. Indeed, the bill provides that presentation of the carry permit and the State-issued identification specified in the bill is "prima facie evidence" that the carry is protected by the bill and specifies further that, in such cases, the prosecution bears the burden of proof to show, "beyond a reasonable doubt," that the carry at issue was not protected by the bill. The bill further provides that if the person is prosecuted for carrying in a manner protected by the bill and prevails, then that person is entitled to attorneys' fees incurred because of that prosecution. Finally, the bill creates a new legal cause of action, providing that a person who deprived of any right afforded by the bill may bring suit against the state or locality or person causing that deprivation, including a right to recover money damages and attorneys' fees. These procedural and cause of action provisions put real teeth into the substantive protections afforded by the bill and go a long way to overcome adverse court decisions that have refused to recognize a federal civil rights cause of action to enforce FOPA, 18 U.S.C. 926A.
Third, the bill actually defines a handgun in such a way as to supersede restrictive state laws that limit types of handguns, magazines or ammunition. Specifically, a handgun is defined as including "any magazine for use in a handgun and any ammunition loaded into the handgun or its magazine." That definition would seemingly supersede state laws banning so-called large capacity magazines or restricting the types of ammunition that can be loaded in the handgun (such as hollow points). The bill also exempts persons protected by the bill from the 1000 foot gun free zone around schools, a restriction otherwise imposed by federal law (18 U.S.C. 922(q)) and expressly opens up to carry by such persons in virtually all federal lands otherwise open to the public, such as the national parks, the Bureau of Land Management lands and lands managed by the Army Corps of Engineers, Bureau of Reclamation and the Forest Service.
Fourth, the bill amends the LEOSA provisions of federal law (18 U.S.C. 926B and 18 U.S.C. 926C) to exempt these persons from the 1000 foot gun free zone around schools, as long as the LEOSA individual is carrying concealed. Similarly, and interestingly, the bill creates a new section in the code (18 U.S.C. 926E) to provide that a "Federal judge may carry a concealed firearm in any State if the such judge is not prohibited by Federal law from receiving a firearm." Again, any state or local law to the contrary is expressly preempted.
In conclusion, we are constrained to note that bill, while through the House, must still pass the Senate and be signed by the President in order to become law. The Senate bill on this subject, SB 446, is much different than the House bill. For example, that bill, while similar to the House bill in protecting concealed carry by non-resident permit holders and by persons who are residents of constitutional carry states, does not contain any of the procedural legal protections, the cause of action provisions or the LEOSA amendments set forth in the House bill. There is also the distinct possibility that any such bill in the Senate could be filibustered by the opponents to this legislation. Under Senate rules, it takes 60 votes to overcome a filibuster. Even if the filibuster is overcome on a Senate bill, that bill would still have to be reconciled with the House bill (if different in the slightest) in a conference committee and voted upon again by both the House and the Senate. In other words, we have a long way to go. That said, the House bill is still a vital first step in strengthening the rights of permit holders. In the meantime, we all should contact our Senators to urge favorable consideration of the House bill (or for that matter, SB 446). That contact information can be found HERE. Such contact is important even if you believe that the Senator is against these bills, as our voices remind them that we are watching.
Mark Pennak, President MSI
