The Long-Abused Commerce Clause Will Now Bullet-Proof Concealed Carry Reciprocity

After decades of dissipating the original meaning of the Commerce Clause, the U.S. Supreme Court went for broke in Scarborough v. United States. Scarborough held that there need only be a minor connection between firearms and interstate commerce—such as guns having once been shipped across state lines from the factory—for the firearms to be regulated forever afterward under the Commerce Clause. In the wake of Scarborough, several legal scholars ridiculed the theory that “federal power forever infects anything that contacts interstate commerce” (as law professor David Engdahl phrased it). Nevertheless, Scarborough’s precedent today offers genuine constitutional pedigree to concealed carry interstate reciprocity. This fact was not lost on the framers of the Concealed Carry Reciprocity Act of 2017, who refer to all handguns as having been “shipped or transported in interstate or foreign commerce”; that language creates a jurisdictional hook that guarantees the statute will pass constitutional muster under the Commerce Clause.

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