43 States to 6 States, Says the S. Ct. About Shall-Issue Concealed Carry Rules: What's the Missing State?

Some of you might have had the same reaction that I did to the Court's count of states in N.Y. State Rifle & Pistol Ass'n v. Bruen:

[T]he vast majority of States—43 by our count—are "shall issue" jurisdictions, where authorities must issue concealed-carry licenses whenever applicants satisfy certain threshold requirements, without granting licensing officials discretion to deny licenses based on a perceived lack of need or suitability. Meanwhile, only six States and the District of Columbia have "may issue" licensing laws, under which authorities have discretion to deny concealed-carry licenses even when the applicant satisfies the statutory criteria, usually because the applicant has not demonstrated cause or suitability for the relevant license. Aside from New York, then, only California, the District of Columbia, Hawaii, Maryland, Massachusetts, and New Jersey have analogues to the "proper cause" standard.

What's the missing state? The answer, turns out, is Vermont, because it has what some call "constitutional carry"—pretty much all law-abiding adults can carry concealed weapons without the need for a license—without even the option of getting a license. The other 24 "constitutional carry" states also have shall-issue licensing schemes, which is why they're included in the Court's count of 43. (Vermont used to be the only such state.)

Note also that 41 states (43 minus three plus Vermont) are unambiguously in the "pretty much all law-abiding adult can carry concealed, with a license or sometimes without" camp. Three more states are somewhat ambiguous, but according to the Court are practically in the shall-issue camp:

Three States—Connecticut, Delaware, and Rhode Island—have discretionary criteria but appear to operate like "shall issue" jurisdictions. Although Connecticut officials have discretion to deny a concealed-carry permit to anyone who is not a "suitable person," the "suitable person" standard precludes permits only to those "individuals whose conduct has shown them to be lacking the essential character of temperament necessary to be entrusted with a weapon." Dwyer v. Farrell, 193 Conn. 7, 12, 475 A.2d 257, 260 (1984). As for Delaware, the State has thus far processed 5,680 license applications and renewals in fiscal year 2022 and has denied only 112. See Del. Courts, Super. Ct., Carrying Concealed Deadly Weapon (June 9, 2022), https://courts.delaware.gov/forms/download.aspx?ID=125408. Moreover, Delaware appears to have no licensing requirement for open carry. Finally, Rhode Island has a suitability requirement, but the Rhode Island Supreme Court has flatly denied that the "[d]emonstration of a proper showing of need" is a component of that requirement. Gadomski v. Tavares, 113 A.3d 387, 392 (2015).

So, treating Vermont as like the shall-issue jurisdictions, the total (until the Bruen decision) could be seen as 41-9, 44-6, or possibly something in between. That's apparently a change from 9-41 (the other way) in 1986, when reportedly only Alabama, Connecticut, Indiana, Maine, New Hampshire, North Dakota, South Dakota, Vermont, and Washington allowed broad concealed carry under a shall-issue licensing regime (or, in Vermont's case, even without any need for a license).

Many more states, though, have long allowed open carry even if they didn't allow concealed carry: Carrying was broadly lawful throughout much of American history, and was generally recognized as a constitutional right, as the Court noted, but states were allowed to mandate that the carrying be open (and they still can so mandate after Bruen, though it seems unlikely that they will).