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).

Comments

[Sebastian Cremmington]

The notion a concealed carry license is unconstitutional is DOA. And so I don’t see this changing much because violent felons can’t get a concealed carry license and that class of individuals would be the class of people most likely to abuse this right…the reams of evidence indicates that law abiding citizens tend to continue to be law abiding citizens even with a concealed carry permit. What other rights don’t felons have?? I guess sex offenders have a very restricted right to free movement.

[Bruce Hayden]

Actually concealed carry permit holders misuse firearms significantly less frequently than those without, or LEOs.

[Sebastian Cremmington]

Which is why this won’t change anything. As of 2016 3.7% of Texans had a concealed carry permit and the remaining states will have stricter standards to get a permit so I don’t see this having a big impact. Bottom line—generally more law abiding citizens carrying guns is a good thing and it definitely won’t make crime worse.

[Stephen Lathrop]

Hayden — When you start with, "Actually," you need to deliver the goods. Actually, there is no uniform gun crime reporting standard enforced on all U.S. jurisdictions, so no one can have any idea whether what you say is true or not.

In fairness, it would surprising if it were not at least partly true, given initial screening by background checks. It would be more interesting, however, if the question were evaluated on the basis of standard data, uniformly collected, maintained over decades, and compared on the basis of identical time frames.

Nothing like that is currently possible. If the gun industry and its lobbyists and supporters have their way, nothing like that will ever be possible. Resistance to collecting the data and analyzing it forthrightly creates a data evaluation issue of its own.

[Michael P]

The fact that you want more data doesn't change what the data say. See, for example, https://crimeresearch.org/2015/02/comparing-conviction-rates-between-police-and-concealed-carry-permit-holders/

[Rossami]

It's true that there is not a uniform gun crime reporting standard. Nothing else in that screed is accurate.

The data that exist demonstrate that permit holders commit crimes at rates far below the general population and even (approximately) ten-times lower than the rate at which law enforcement officers commit crimes. (Note that LEOs are supposed to be screened even more thoroughly than mere permit holders.)

Despite your conspiracy theories, nobody is blocking the collection or analysis of data on gun crimes. Congress did say that it was not appropriate for the CDC to use public funds to conduct gun control advocacy but put no block on even them doing data collection or raw analysis. And privacy advocates have long argued that data collection on gun registrations is invasive and inappropriate - but that has nothing to do with gun crimes.

[Brett Bellmore]

Of course requiring concealed carry permits is constitutional. The right is to carry, not carry concealed. The states that have a constitutional problem are the ones that don't allow open carry without a license.

But that's a case for another day, and perhaps Court. This one may SAY that the 2nd isn't 2nd class, but they don't really mean it yet.

[Nisiiko]

Thomas certainly means it. It looks like Kavanagh and Roberts do not. And having read their concurrence, I fear that it's far worse than I originally thought. They left enough in there for lower courts to declare any restriction one of the "variety of regulations" allowed. That's not to say that SCOTUS would ultimately agree, but it means years of litigation again. On one hand, Thomas clearly said "no two step test" and "it's not a second class right." But if you ignore that, and focus on the "not unlimited" and "variety of regulation" you can rubber stamp almost any stupid rule, like "assault weapons" bans, magazine limits, and so forth.

[Bruce Hayden]

If you are going to treat Constitutional Carry differently than Shall Issue, keep in mind that states like AZ are both: Constitutional Carry and Shall Issue. What that means is that you don’t need a permit to carry concealed in AZ (assuming that you are old enough and aren’t a prohibited person). Why would you want an AZ CCW permit then? Because of reciprocity.

Real story. I had a CO permit. Now we spend half the year in MT and half in AZ. Wanted a MT permit, which required residency, which we thus maintain. The problem is that the CO permit became invalid when I gave up my residence there. MT required 60 days of residency. What to do? I got an AZ permit, based on my CO permit, which doesn’t require residency, then MT used the AZ permit to issue theirs. I offered them both AZ and CO, but after I explained the Status of my two permits, they went with AZ. Normally, MT required some sort of training (back then). That was brought forward from CO through AZ to MT. (Actually, for MT, they never required it, because I go through a handgun class most years with the county Justice of the Peace, where the permitting person had gotten her training too, as have most of the staff in the courthouse).

[Sebastian Cremmington]

The keys are denying felons the RKBA and explicitly stating concealed carry permits are constitutional and explicitly stating sensitive areas can restrict guns—those three caveats limit the negative implications of this ruling.

[Nisiiko]

Uhh, no one was denying that there are SOME sensitive areas that can be off limits to guns, like the secured areas of airports and courthouses. But if you think that the "sensitive places" language was carte blanche to declare nearly anything, like restaurants and subways, as the idiot governor of New York is claiming, I think you're going to be disappointed.

[Sebastian Cremmington]

I guess we will find out over the next 50 years…I can see in 2070 you will be able to take your phaser on the subway so long as it is set to stun. 😉

[Currentsitguy]

I think I'd end up using one of those so often I'd have to carry several sets of batteries. I think there are a lot of my fellow drivers who should breathe a sigh of relief because I'd use that damn thing set on disintegrate on ever fool who has cut me off, turned in front of me, or damn near merged into me while on their cell phone.

[Azathoth!!]

The keys are denying felons the RKBA

No one denies this to felons.

They're felons. They KBA regardless of law.

Gun control laws only make it easier for criminals to prey on the lawful.

[Longtobefree]

This where I wish I had enough Advil to read the full decision/dissents. Do they indicate anything about reciprocity?
What good is a 'national right' that varies from state to state?
Can red states stop honoring same sex marriage licenses?
Can a REAL ID state refuse to accept a driver's license from a non-compliant state?
When does the second amendment actually apply equally to all citizens?
Who is John Galt?

[Dan Schiavetta]

"and was generally recognized as a constitutional right, as the Court noted"

But the Court was lying.

[bevis the lumberjack]

LOL. Sure. 43 (actually 44 counting Vermont) to 6. But sure, it’s not generally recognized as a Constitutional right. It’s just 88% recognized.

[Stephen Lathrop]

bevis — That's one way to look at it. A more informative way is to take note that the relative populations are quite a bit closer than that statistic, although still with the constitutional right side in a considerable majority.

[bevis the lumberjack]

Either way I don’t know where this guy gets that the court is lying.

[Stephen Lathrop]

bevis — The court has the history and tradition analysis all wrong. Lawyerly arrogance may account for that. Lawyerly ignorance about how to reason historically may account for it. Given obvious logical contradictions, and wildly uneven attention to the entire record of history and tradition, you cannot rule out lying—or at least self-deception. Some folks—a lot of folks, actually, including judges—are clueless where their ideas about history came from. And so many of us got history together, from the same bad sources, that folks tend to think that with everyone they know in agreement, their own notions must be right. My guess is that America's most influential historian ever was Walt Disney.

[MatthewSlyfield]

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.)

I have never understood why so called "constitutional carry" excludes states that allow open carry without a permit.

If you include open carry states, Vermont was never the only such state.

[Frank Drackman]

And in Vermont, while you're enjoying your Ben & Jerry's you can also own/shoot a (Real) "Assault Weapon" (i.e. Selective Fire), plus alot of other cool things

What NFA Items Can I Buy in Vermont?
NFA items are any items that are restricted by the National Firearms Act. In a nutshell, this restricts the kinds of guns people can own across the US. The great news for firearm lovers is that Vermont has very few restrictions. Here are the NFA firearms you can buy in Vermont:

Short-barreled rifles. A short-barreled rifle is any rifle that has a barrel of fewer than 16 inches. These are perfect choices for hunting small to medium-sized game or for general self-defense purposes. You can also use them for backyard plinking and target practice. Keep in mind you’ll have to pay an extra $200 in addition to the main price for one of these.
Short-barreled shotguns. A short-barreled shotgun is any shotgun with a barrel shorter than 18 inches. It also comes with a $200 fee, but these are fantastic weapons for hunting and self-defense, along with sporting events like skeet shooting.
Machine guns. A machine-gun is any fully automatic weapon that can fire multiple rounds without having to reload and with a single trigger pull. Civilians are only allowed to purchase and use machine guns that were manufactured on or before May 19, 1986. The $200 fee mentioned above returns here as well.
Destructive devices. You’ll also be able to find destructive devices from Class III dealers within Vermont’s borders. Destructive devices are large-caliber weapons like rocket launchers plus any smaller devices like bombs, grenades, and mines. You’ll usually find fewer of these in Vermont given the state’s rural terrain and focus on hunting. The $200 fee applies here as well.
Silencers or silenced weapons. Silencers or suppressors are attachments that lower the noise and recoil of the weapon they are attached to. Vermont actually had these illegal for most of its history, but they were recently legalized in 2015. Once more, you’ll have to pay an extra $200 tax to purchase one of these attachments or a weapon with one of them already built onto the platform.
Any Other Weapons (AOWs). Lastly, you can find this category of NFA regulated weapon or device from Vermont Class III dealers. These are weapons or devices that are concealable and which may fire a projectile or an explosive – essentially, any weapon that doesn’t fit into any of the other categories fits here and incurs another $5 fee.

Frank

[Bored Lawyer]

Wait, Barack Obama told us ther are 57 states. What's the law in the other 7?

[Sarcastr0]

Nevar Forget.

[Rev. Arthur L. Kirkland]

That reminds me of the banter at Federalist Society meetings during what those painfully antisocial misfits call their “social” hour.

[Michael P]

If you like your Second Amendment, you can keep your Second Amendment.

[Kazinski]

It seems to me what’s next is mandatory reprocicity for CCW permits, I shouldn’t lose my right to bear arms when I cross state lines.

I have a Washington CCW, but there are very few states that offer reciprocity, only 9 states by my count.

The constitution already requires both providing me with a non-onerous process to get a permit to bear arms, and requires each some version of reciprocity:“ Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. ”

[Noscitur a sociis]

The constitution already requires both providing me with a non-onerous process to get a permit to bear arms, and requires each some version of reciprocity:“ Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.

While I would love to see a robust federal concealed carry reciprocity mandate, the full faith and credit clause does not require one (and the failure to pass a statute in 2017-2018 is a disgrace).

[Nisiiko]

2018? The Republicans had complete control of the government from 2000-2006 as well, and squandered it except for tax cuts. The Republicans have been dangling it as a carrot. The leadership never had any intent on putting this through.

Maybe now it'll be easier to get political cover, because of the fact that the Supreme Court has declared it a Constitutional right. It no longer requires a tortured interpretation of the commerce clause, but can rely on the 14th Amendment's enforcement provisions.

[bevis the lumberjack]

The same could be said about Democrats and abortion. There were periods during Carter, Clinton, and Obama that they had a majority in the House and 57 -62 seats in the Senate and could have made abortion damn near bulletproof but just didn’t.

Bringing this up not to whatabout but to reinforce your point that sometime maybe 15 years back or so Congress collectively decided to quit doing its job. Guess it’s just easier to scream culture war crap at each other than to do the hard job of legislating.

[Frank Drackman]

its like why "Common Sense" Gun Control Laws supported by (70%! 80%! 85%! do I hear 90???)
don't get passed.
if they were that popular they would, Politicians are best described as Slimy Slippery Eels, and I'm insulting all of the Semi-Slimy-Slippery Eels with that remark...
If I was defending whoever built that sorry excuse for a "Gallows" on 1-6, I'd request a Summary Judgement on 1: "Gallows" could never take the girth of that Fatty Jerry Nad-ler, and 2: "Pencil Neck" Adam (Redacted) 's Slimy Pencil Neck would slip right out of that sorry excuse for a "Noose"

Frank "You are sentenced to death by walking up to an opened door unarmed with Michael Bird on the other side"

[KRB]

Out of curiosity, does anyone know what the law is relating to recognition of out-of-state drivers licenses? I know that if you have a valid license in one state, it is valid in all states, but is this because all states have decided independently that they will honor other states' licenses, or because there is a federal statute requiring it, or because the Constitution requires it? Maybe everybody else knows the answer to this, but I don't.

[Nisiiko]

It's because of an interstate compact that was put in place many years ago. But I suspect that the Constitutional issues about whether or not it's required were probably never really examined because it was irrelevant, because of the compact.

[OC4me]

Regarding a historical tradition for schools being a sensitive place. Can anyone cite such a case besides James Madison's ban on students carrying at a school?

If not then, I believe it should be noted that the ban only applied to students, NOT staff (or visitors for that matter). Am I correct about this?

Such a distinction would be important in ending the mistreatment of law-abiding adults (i.e. teachers and administrators) who continue to be treated as second class citizens with respect to the self-defense rights that the rest of us enjoy.