Mike’s Law: Does the End Justify the Means?

Michael GrossmanJune 01, 2017 7 minutes

Like most people, I cringe when attorneys evoke a phony "voice of the people" mentality or preach about their practice as if they're the saving grace to humanity. I can't stand when attorneys preach down upon the people their magical wisdom of ethical truths. That said, I quite seriously believe that the service that my practice provides is very important to our clients. Also, I feel that the role of any attorney worth his salt should be to advocate for equality under the law, regardless of his or her personal beliefs.

This belief also includes the basic tenets of equality under the law: an impartial judiciary, a trial by jury, and all of the foundations of the judicial process that the Constitution guarantees. Inherent in this belief is the general aversion to anything creates a special class of individuals. My take is that no one should receive preferential treatment, regardless of occupation. This is the topic I wish to tackle today regarding Mike's Law.

Mike's Law is a proposal to essentially allow truck drivers to apply for a "Federal Business Concealed Carry Permit" so that they are legally allowed to carry concealed across state lines while in the performance of their duties as a truck driver. The permit requires an application with the Bureau of Alcohol, Tobacco, and Firearms, that must be approved prior to issuance of the permit.

Just so we're clear where I stand regarding truckers -- I sue bad truckers for a living. I've represented the families of victims that were killed by irresponsible truckers and have spent more than 25 years fighting against trucking companies to even the playing field between my clients and the trucking company's team of attorneys.

But, I don't hate the trucking industry and I don't consider it to be part of my job to smear every single trucker out there on the road. Like any other citizen, I believe that truckers should have the ability to legally defend themselves, too. After all, a trucker's journey often takes them to rural and desolate areas where police help may be 30 minutes away. This naturally makes truck drivers targets of criminals.

I surely wouldn't want to be caught in the middle of the desert without any possible, legal way to protect myself. However, the Constitutional justification to achieve the goals of Mike's Law, and, the fact that it would create a special class of citizen is something I simply cannot endorse.

What Mike's Law Gets Right

First and foremost, we have to ask ourselves, does Congress have the authority to pass a law to permit truckers to carry across state lines? It appears on its surface that the Commerce Clause would be a reasonable justification for Mike's Law. Truckers engage in interstate commerce every single day. Also, Michael's Law would seem like it would be a natural companion, in spirit, to the Arming Pilots Against Terrorism Act of 2002. Both are aimed at providing safety measures for responsible gun owners that are traveling across state borders while engaging in commerce.

Under Mike's Law, in order to legally carry a concealed weapon across state lines, a trucker would be required to pass a firearms qualification test and follow ATF-established guidelines, meant ensure that the drivers were up to snuff in regards to weapons safety and accuracy.

Further, Mike's Law and the Arming Pilots Against Terrorism Act are both in response to a real and deadly threat. Both require government oversight, background checks, and training prior to the issuance of the concealed carry handgun license. However, the big difference between the two is the processes used to implement legal interstate carry of firearms.

The commerce clause rationale for Mike's Law is that commerce is impacted between states because truck drivers have been robbed and killed on the job as a result of criminals knowing that there is no way for truck drivers to defend themselves in certain parts of the country. This creates a climate where scared truck drivers, worried about being killed or injured on the job, no longer have the freedom to go through remote regions of the country. It's easy to see how this could impact commerce, which at its most basic level is the free movement of goods and services.

So if the proposed legislation is legal, under the Commerce Clause, and accomplishes a definite good, helping truckers to do defend themselves, why would anyone oppose such a measure?

What I Don't Like about the Proposed Law

At first blush, a law that reduces the vulnerability of interstate truckers seems reasonable. From a certain, narrow perspective, it seems that crafting a narrow, well-tailored piece of legislation that directly addresses a specific problem is the way to to go. In an era when our legislators increasing craft vague legislation in broad strokes, which leave the details to be filled in by bureaucrats, the specificity of Mike's Law is a welcome change. However, in this instance, a narrow law that carves out a special exception for interstate truckers creates it's own special set of problems.

You might think to yourself, "Isn't that what you said Congress did over a decade ago when they passed the Arming Pilots Against Terrorism Act?" That program was implemented during a time right after the 9/11 attacks and is supervised by the Under Secretary of Transportation in the Transportation Security Administration and it essentially integrated certain pilots into the law enforcement community.

Federal flight deck officers (FFDO) have a very limited mission and scope. Basically, the FFDOs are armed as a last resort for when the flight crew and passengers are overpowered, or, unable to fight back and deadly force is the only recourse to neutralize a very dangerous threat. FFDOs are literally deputized by under secretary. Consequently, deputized pilots must abide by very strict codes of conduct while in the performance of their duties. All of that is to say, for all intents and purposes, the government decided to give policing authority to pilots. Rather than being based entirely in the Commerce Clause, the Arming Pilots Against Terrorism Act is more firmly rooted in the executive authority inherent in any government.

Mike's Law, on the other hand, is utilizing the Commerce Clause in Article I, Section 8 of the Constitution. As you can ascertain from the title of the clause, it gave power to Congress "to regulate commerce with foreign nations, and among the several states, and with Indian tribes." To say that this simple statement has expanded in scope over the past century is a fact of life, and whether that is a good or bad thing, is its own debate.

Here's where the similarity between Arming Pilots Against Terrorism Act and Mike's Law ends. While the Arming Pilots Against Terrorism Act creates a special class of citizens through the government's executive authority, Mike's Law employs the Commerce Clause. This may sound like a distinction that only matters to a lawyer, but the fact is that we readily accept that the police are a special class of citizen. In order to protect the community, we give police agencies rights that the rest of us just don't possess. However, creating a special class of citizens via the Commerce Clause is a thornier issue.

Further, in the grand scheme of things, the commerce argument for any kind of gun restrictions or deregulation has always had trouble getting past the watchful eye of the Supreme Court. The prime example of this is then-Senator Biden's Gun-Free School Zones Act of 1990 (GFSZA).

The GFSZA was passed by Congress as part of the Crime Control Act of 1990. In essence, the argument that was made for this act was that:

  1. Guns in schools are scary,
  2. students being afraid of gun violence distracts them from their studies, and,
  3. the student's poor grades impact their potential earnings throughout their lifetime.
  4. Because poor grades impact a student's potential future earnings, this negatively impacts interstate commerce.

No matter how you feel about guns, it is difficult to follow the twists and turns involved in the constitutional gymnastics used to justify that legislation. The Supreme Court thought the same and struck down the legislation in 1995. It was then replaced by legislation better rooted in the Constitution.

Creating Special Classes of Citizens Isn't the Answer

For over a century the Commerce Clause has become the go-to article of legislative justification regarding gun laws. It was initially intended as a tool for Congress to be able to regulate transactions between states because Congress didn't want states to impose tariffs on one another, a problem in the early years of independence. However, in the early 20th century, Congress soon started to realize that as long as you explain how anything can impact interstate commerce, in any way,, the Commerce Clause can be cited as justification.

As I hope I've made clear, I feel that Congress likely has the authority to create such a statute. But, that doesn't change the fact that I still dislike creating a special class of individuals. Part of why I represent commercial truck accident victims is because I want to ensure that the law isn't just a tool for trucking companies to protect themselves, but also a means for victims to get justice. In some circumstances allowing certain people, such as highly trained government law enforcement officials, to have special privileges is unavoidable. However, allowing approximately 1 million drivers special rights that others don't have makes me uneasy about this legislation.

While I am always wary of slippery slope arguments, even we justifiably create special classes of people, who have rights that others don't, we invariably spotlight other groups with equally valid claims to similar rights. In essence, answering the calls to protect one group raises cries from other groups in need of protection. This creates a patchwork of laws, without addressing the fundamental issue, which is really, "Who is allowed to carry a concealed firearm?"

What I would consider to be a far fairer, would be a law that allows all citizens to exercise that same right, rather than just truckers. Again, I'm not being anti-trucker, but it doesn't make much sense to allow truckers, traveling transporters of goods to have rights that we wouldn't afford to others who are equally engaged in commerce as they travel about our country. I just would rather have every citizen be treated equally under the law.

Unfortunately, legislation for pure national concealed carry reciprocity also relies upon a bad interpretation of the Commerce Clause as its basis. The only way to properly legislate concealed-carry reciprocity would be to do so using the 2nd Amendment as it was applied in DC v. Heller. However, I don't that either party is willing to go to war over the 2nd Amendment, because, the legislation could result in the strengthening or weakening of the amendment.

It may be constitutionally valid to justify concealed-carry reciprocity only for truck drivers, but my view of the law is that it is meant to bind, unite, and empower everyone who is subject to it, not carve out special privileges for some groups of people and not others.