After the Supreme Court ruled that New York's restrictions on public possession of firearms violated the Second Amendment, state legislators responded by imposing new restrictions. Four days after Gov. Kathy Hochul, a Democrat, signed that bill into law, Maryland Gov. Larry Hogan, a Republican, announced a strikingly different response to the Court's ruling, saying state police would immediately stop demanding that carry-permit applicants demonstrate a "good and substantial reason" for exercising the right to bear arms.
The stark contrast between New York and Maryland illustrates the range of reactions to the Court's June 23 decision in New York State Rifle & Pistol Association v. Bruen. While some states promptly complied with the ruling by eliminating requirements that gave officials broad discretion to deny carry permits, others are either dragging their feet or refusing to acknowledge the import of what the justices said the Constitution demands.
The vast majority of states either do not require permits for carrying firearms in public or have "shall issue" carry-permit laws, meaning that applications generally are approved as long as gun owners meet objective criteria. Prior to Bruen, at least six states had "may issue" carry-permit laws, which give licensing officials broad leeway to reject applications based on subjective standards.
I say "at least six" because these classifications are somewhat contested. In Bruen, the Supreme Court said "only six States…have 'may issue' licensing laws." The U.S. Concealed Carry Association (USCCA), by contrast, counts nine, including Connecticut, Delaware, and Rhode Island along with California, Hawaii, Maryland, Massachusetts, New Jersey, and New York. The difference mainly has to do with assessments of how much discretion licensing officials have.
In New York, carry-permit applicants had to show "proper cause," which courts had interpreted to mean more than a general interest in self-defense. In Bruen, the Supreme Court held that such policies are inconsistent with "the right of the people to keep and bear arms," which extends beyond self-defense in the home, the focus of the Court's landmark 2008 decision in District of Columbia v. Heller.
New York responded with a law that eliminates the "proper cause" demand but still requires a demonstration of "good moral character," newly defined as "having the essential character, temperament and judgment necessary to be entrusted with a weapon and to use it only in a manner that does not endanger oneself or others." To meet that test, applicants must submit at least four character references, along with information about their social media accounts and any other information that is "reasonably necessary and related to the review of the licensing application."
Because of that requirement, New York officials still have broad discretion to reject applications based on their understanding of "good moral character." Furthermore, the inclusion of constitutionally protected online speech as part of that analysis raises potential First Amendment problems: Might an applicant be rejected because he made intemperate political remarks or displayed what an official viewed as unseemly enthusiasm about a newly acquired gun?
The new law also includes a long list of "sensitive locations" where gun possession, even by permit holders, is a felony punishable by up to four years in prison. Depending on where permit holders live and their daily habits, those sweeping restrictions could make it difficult or impossible for them to actually carry guns for self-defense. That provision is bound to provoke another constitutional challenge.
Here is a rundown of how other states are responding (or not) to Bruen.
California Attorney General Rob Bonta, a Democrat, dropped his state's "good cause" requirement for carry permits, but he is backing a bill that would add many new restrictions. That approach is likely to generate more litigation.
"It is the Attorney General's view that the Court's decision renders California's 'good cause' standard to secure a permit to carry a concealed weapon in most public places unconstitutional," Bonta wrote in a "legal alert" to local prosecutors, police chiefs, sheriffs, and municipal lawyers the day after the decision in Bruen was announced. "Permitting agencies may no longer require a demonstration of 'good cause' in order to obtain a concealed carry permit." But he added that "the requirement that a public-carry license applicant provide proof of 'good moral character' remains constitutional."
It is not clear exactly what that requirement means in practice. The Long Beach, California, law firm Michel & Associates, which specializes in firearm cases, notes that the state "gives broad discretion to issuing authorities in determining whether an applicant has good moral character." Usually, it says, "an applicant is considered to be of good moral character if they pass the required background check and do not have any serious documented instances of poor judgment in their recent past." But it adds that "some issuing authorities may use trivial incidents as a basis for denial."
As UCLA law professor Eugene Volokh notes, Bonta suggested that ideological considerations could play a role in the judgment of an applicant's character. Bonta quoted the policy adopted by the Riverside County Sheriff's Department (emphasis added): "Legal judgments of good moral character can include consideration of honesty, trustworthiness, diligence, reliability, respect for the law, integrity, candor, discretion, observance of fiduciary duty, respect for the rights of others, absence of hatred and racism, fiscal stability, profession-specific criteria such as pledging to honor the constitution and uphold the law, and the absence of criminal conviction." Bonta also said the assessment could include "social media accounts."
Volokh, a First Amendment specialist, thinks such a wide-ranging inquiry—which could include examining an applicant's opinions for signs of bigotry, criticism of laws he views as unwise or unjust, or even bad-faith argumentation suggesting that he lacks "honesty"—is "clearly unconstitutional." Volokh notes that "the government can't restrict ordinary citizens' actions—much less their constitutionally protected actions—based on the viewpoints that they express."
In a press release the day of the Supreme Court's decision in Bruen, Bonta said he was "working with the Governor and the legislature to advance legislation that is both constitutional and will maintain safety for Californians." The bill to which he referred, S.B. 918, is notably different from New York's law in at least one way. Instead of doubling down on the "good moral character" criterion, S.B. 918 would eliminate that requirement along with the "good cause" standard, even though Bonta maintains that the former test is constitutional.
Like New York's law, however, S.B. 918 would prohibit permit holders from carrying guns in a wide range of settings, including government buildings, public transit vehicles and stations, K–12 schools, colleges or universities, health care facilities, bars, restaurants with liquor licenses, public gatherings, playgrounds, parks, athletic facilities, gambling establishments, financial institutions, stadiums, libraries, amusement parks, zoos, museums, houses of worship, and any "privately-owned commercial establishment that is open to the public." There is an exception to that last category if "the operator of the establishment clearly and conspicuously posts a sign at the entrance of the building or on the premises indicating that license holders are permitted to carry firearms on the property."
Those restrictions, like New York's, are begging for a Second Amendment challenge. If a state notionally allows someone to carry a handgun but makes it impractical or legally perilous to do so, that is tantamount to denying him that right.
The bill summary claims that S.B. 918 expands an exception to California's Gun-Free School Zone Act for carry-permit holders. But the language reads to me like a contraction.
Under current law, guns generally are prohibited within 1,000 feet of a K–12 school. That ban does not apply to a permit holder who is "not in, or on the grounds of" a school. Under S.B. 918, the ban does not apply to a permit holder who carries a gun "in an area that is not in any building, real property, or parking area under the control of a public or private school…or on a street or sidewalk immediately adjacent to a building, real property, or parking area under the control of that public or private school."
If not modifies the rest of the sentence, the bill would prohibit permit holders from carrying guns "on a street or sidewalk immediately adjacent to" school property, which would be a new restriction. The bill also eliminates an exception for unloaded, securely stored handguns in cars, which will complicate life for firearm owners without carry permits, who could be committing felonies by driving through or parking in a school zone.
Although Connecticut is often classified as a "shall issue" state, it requires that a carry-permit applicant be "a suitable person." That vague standard, New Britain lawyer Ralph D. Sherman argues, means that Connecticut, in practice, is a "may issue" state.
Connecticut Attorney General William Tong, a Democrat, apparently does not see it that way. In a June 23 interview with The Connecticut Mirror, Tong conceded that Bruen "could undermine" his state's regulations. But he promised to defend "some of the strongest gun laws in the nation." If Bruen "leads to an attack on Connecticut's gun laws," he said, "we will be the firewall, and we will do everything we can to protect Connecticut families and children."
Delaware requires that a carry-permit applicant demonstrate "good moral character" and "a good reputation for peace and good order." The Washington Post says Delaware's law is "somewhat less stringent" than New York's because it gives licensing officials "less discretion to reject applications." The National Shooting Sports Foundation (NSSF), a firearms trade group, reports that Delaware officials are taking a "wait and see" approach, meaning the law probably won't be changed without additional litigation.
Hawaii requires that a resident seeking permission to carry a concealed handgun satisfy the county police chief that he represents "an exceptional case" and that he has "reason to fear injury" to his "person or property." The day that Bruen was decided, former Hawaii Attorney General Doug Chin, a Democrat, suggested those requirements won't be changed until the U.S. Court of Appeals for the 9th Circuit reconsiders its 2021 decision in Young v. Hawaii, which upheld the state's similarly restrictive rules for openly carrying guns.
Last week, the Supreme Court vacated Young and told the 9th Circuit to reconsider it in light of Bruen. "What would need to happen is some sort of legal action taking place here in one of the courts in Hawaii," Chin told KHON, the Fox affiliate in Honolulu. "As it turns out, there is an existing case that involves Mr. George Young that will probably be impacted by this decision [in Bruen]." The NSSF reports that "Honolulu police say there are no immediate changes to the state's process, but gun rights groups are hinting at litigation."*
"Over the course of my administration," Gov. Hogan said on Tuesday, "I have consistently supported the right of law-abiding citizens to own and carry firearms, while enacting responsible and common sense measures to keep guns out of the hands of criminals and the mentally ill. Last month, the U.S. Supreme Court struck down a provision in New York law pertaining to handgun permitting that is virtually indistinguishable from Maryland law. In light of the ruling and to ensure compliance with the Constitution, I am directing the Maryland State Police to immediately suspend utilization of the 'good and substantial reason' standard when reviewing applications for Wear and Carry Permits. It would be unconstitutional to continue enforcing this provision in state law."
Last Friday, Attorney General Maura Healey, a Democrat, issued an advisory that said "licensing authorities should cease enforcement of the 'good reason' provision of the license-to-carry statute in response to Bruen." Although that case "concerned a New York law," she noted, "the Court specifically identified the 'good reason' provision of a Massachusetts law…as an analogue to New York's proper cause requirement."
Healey added that her state's "suitability" requirement for carry permits is "unaffected by Bruen." Massachusetts requires that an applicant be "a suitable person to possess firearms." A determination of unsuitability is supposed to be based on "reliable and credible information" that the applicant "has exhibited or engaged in behavior that suggests" he "may create a risk to public safety" or other "factors" indicating such a risk. Like a "good moral character" requirement, that criterion seems to leave considerable room for subjective judgments.
The day after the Bruen decision, Acting Attorney General Matthew Platkin, a Democrat, told police and prosecutors that carry-permit applicants should no longer be required to establish a "justifiable need." The ruling "prevents us from continuing to require a demonstration of justifiable need in order to carry a firearm," he said, "but it does not prevent us from enforcing the other requirements in our law." Those include certification of firearms training and a background check verifying that the applicant is "not subject to any of the disabilities which would prevent him or her from obtaining a permit to purchase a handgun or a firearms purchaser identification card."
Under state law, the attorney general "may issue" a carry permit based on "a proper showing of need." As the USCCA explains, the rules are different for carry permits issued by local law enforcement agencies: They "shall issue" a permit "if it appears" that the applicant is "a suitable person to be licensed" and either "has good reason to fear an injury to his or her person or property" or has another "proper reason" for carrying a handgun.
According to U.S. News & World Report, Rhode Island Gov. Daniel McKee and Attorney General Peter Neronha, both Democrats, "said they would review the Supreme Court decision for its impacts on the state." Neronha "said there are similarities between Rhode Island's law and the one in New York that was struck down, but also important differences between the two states' statutory schemes." The NSSF describes Rhode Island as a "wait and see" state.
*Update, July 12: Last Thursday, Hawaii Attorney General Holly Shikada said a concealed-carry applicant in that state will no longer be required to show he represents "an exceptional case" and has "reason to fear injury" to his "person or property."