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The Limits of Bruen

The Constitutionality of "Shall Issue" Regimes After Bruen.


Bruen was a resounding triumph for originalism. But unlike DobbsBruen will not lead to sweeping changes in gun laws nationwide. For starters, more than 40 states already employed some form of shall-issue carry. Depending on how you count, only 6 or 7 states will have to modify their regimes in the wake of Bruen. Much of the sturm und drang about Bruen is hyperbole.

And, no doubt, these states will try to push the boundaries of Bruen. Eugene already blogged about one such attempt from the California Attorney General. Here, I would like to flag the limits that Bruen identifies, as well as those recognized in the concurring opinions.

First, Footnote 9 of Justice Thomas's opinion blesses the 43-odd states that employ a "shall-issue regime."

To be clear, nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States' "shall-issue" licensing regimes, under which "a general desire for self-defense is sufficient to obtain a [permit]." Drake v. Filko (CA3 2013) (Hardiman, J., dissenting). Because these licensing regimes do not require applicants to show an atypical need for armed self-defense, they do not necessarily prevent "law-abiding, responsible citizens" from exercising their Second Amendment right to public carry. District of Columbia v. Heller (2008).

And Thomas endorses the regimes in states that require applicants to pass a "background check" or "a firearms safety course."

Rather, it appears that these shall-issue regimes, which often require applicants to undergo a background check or pass a firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in fact, "law-abiding, responsible citizens." And they likewise appear to contain only "narrow, objective, and definite standards" guiding licensing officials, Shuttlesworth v. Birmingham (1969), rather than requiring the "appraisal of facts, the exercise of judgment, and the formation of an opinion," Cantwell v. Connecticut (1940)—features that typify proper-cause standards like New York's.

Of course, some of these states go far, far beyond requiring "background check" or "firearms safety course." Presumably, these burdens on the right to bear arms would be permissible under the majority's understanding, because there is no "subjective" standard about a person's need for the firearm.

Still, the Court flagged some limits on shall-issue regimes:

That said, because any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.

How long is a "lengthy wait time"? Weeks? Months? Years? And how high is "exorbitant"? The District of Columbia, for example, imposes onerous requirements, high fees, excessively-long training classes, and many bureaucratic hoops. Litigation will no doubt test these issues. Randy Barnett wrote about his experiences in D.C. on SCOTUSBlog. (A petition is pending before the Court about D.C.'s carry law.)

Second, Justice Alito wrote a concurrence. He stressed that the Court only decided the narrow issue about carry permits. Other issues were not decided:

Our holding decides nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun. Nor does it decide anything about the kinds of weapons that people may possess. Nor have we disturbed anything that we said in Heller or McDonald v. Chicago (2010), about restrictions that may be imposed on the possession or carrying of guns.

Alito wrote this section in response to Breyer's litany of gun statistics. But in the process, he made clear that his opinion in McDonald stands, including the analysis about "longstanding prohibitions" and  "dangerous and unusual weapons." Do not expect Alito to be a lock on 922(g) cases, or challenges to assault weapon bans.

Third, we have Justice Kavanaugh's concurrence, which was joined by Chief Justice Roberts. Kavanaugh did not simply endorse"background checks" and "firearms safety course." He listed another criteria that "shall-issue" regimes can require:

By contrast, 43 States employ objective shall-issue licensing regimes. Those shall-issue regimes may require a license applicant to undergo fingerprinting, a background check, a mental health records check, and training in firearms handling and in laws regarding the use of force, among other possible requirements.

The requirement of a "mental health records check" was not at issue in this case. Yet, Kavanaugh reached out to decide that this requirement was constitutionally permissible. (More on Kavanaugh's reach in another post on Dobbs.)  I fear that this exception will be exploited by states to probe into a person's confidential medical history to deny carry licenses. Indeed, the California Attorney General's guidance specifically cited the Kavanaugh concurrence on this point:

Bruen recognizes that States may ensure that those carrying firearms in their jurisdiction are "'law-abiding, responsible citizens.'" See also id. (Kavanaugh, J., concurring) (States may "require a license applicant to undergo a background check, a mental health records check, and training in firearms handling and in laws regarding the use of force, among other possible requirements"). Accordingly, in assessing whether an applicant has established "good moral character," issuing authorities should recognize that Bruen does not eliminate the duty or authority of local officials to protect the communities that they know best by ensuring that licenses are only issued to individuals who—by virtue of their character and temperament—can be trusted to abide by the law and otherwise ensure the safety of themselves and others. The investigation into whether an applicant satisfies the "good moral character" requirement should go beyond the determination of whether any "firearms prohibiting categories" apply, such as a mental health prohibition or prior felony conviction. 

Later, Kavanaugh refers to the "mental health records check" as an "objective licensing requirement." Far from it.

Likewise, the 6 States including New York potentially affected by today's decision may continue to require licenses for carrying handguns for self-defense so long as those States employ objective licensing requirements like those used by the 43 shall-issue States.

Now, government bureaucrats who are hostile to guns will have vast discretion to abridge a person's constitutional right based on nebulous judgments about mental health. I have to think that Kavanaugh's dicta here was affected by the assassination attempt, in which a person with apparent mental health problems tried to kill the Justice.

Finally, Kavanaugh block-quotes the two paragraphs from Heller that the lower courts have treated as the only relevant portions of the case.

"Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. . . . [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. [Footnote 26: We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.]

"We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those in common use at the time. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of dangerous and unusual weapons." Heller; see also McDonald.

Kavanaugh, Roberts, and Alito went out of their way to reiterate these limitations.

I fear Bruen may prove to be more of a symbolic victory for many people in these six states. I hope it takes less than a decade for the Court to take up another Second Amendment case regarding the issues Alito expressly declined to decide: the types of weapons that are permissible and who may possess arms.