The Volokh Conspiracy

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Bruen Broke The Deal

A guest post from Prof. Robert Leider (GMU)


Shortly after Bruen was decided, I wrote a post about the limits imposed by the decision. Even sooner, New York convened a special legislative session to revamp its gun laws. The new law, predictably, pushes the limits of Bruen. The New York Times offers this summary:

The state's new gun law bars the carrying of handguns in many public settings such as subways and buses, parks, hospitals, stadiums and day cares. Guns will be off-limits on private property unless the property owner indicates that he or she expressly allows them. At the last minute, lawmakers added Times Square to the list of restricted sites.

The law also requires permit applicants to undergo 16 hours of training on the handling of guns and two hours of firing range training, as well as an in-person interview and a written exam. Applicants will also be subject to the scrutiny of local officials, who will retain some discretion in the permitting process.

But more troubling, Bruen in many regards worsens the rights of gun owners in New York. Professor Robert Leider (GMU) makes this point in a guest post:

Many gun owners in California and New York will not be celebrating the Supreme Court's decision in New York State Rifle & Pistol Association v. Bruen.  In that case, the Supreme Court held that the Second Amendment protects a right to bear arms for self-defense outside the home. Before Bruen, six states required individuals to show "good cause" (usually some special danger) to get a license to carry a gun in public.  Three of these states permitted local officials to determine what constituted good cause.  In these states, many gun owners could easily obtain licenses because they lived in conservative areas where local officials recognized "self-defense" as good cause.  But because licenses were difficult to obtain in many other areas of the state, these states did not heavily restrict where licensed gun owners could carry their weapons.  Bruen shattered that political compromise.  After Bruen, all state licensing authorities will have to issue licenses to carry firearms to anyone regardless of whether they are in danger.  Predictably, liberal states are responding by heavily restricting the places where licensed firearm owners may carry their weapons.  Ironically, gun owners in these states will now find that although they may obtain licenses more easily, their licenses are virtually worthless to carry firearms for self-defense, and Bruen's effects will be felt hardest by those who already held unrestricted licenses.

With respect to gun licensing, judges and commentators frequently distinguish between "shall issue" and "may issue" states.  Although various definitions exist, the real difference between "shall" and "may issue" jurisdictions involves whether an applicant for a license to carry a gun has to demonstrate that he faces special danger.  In "shall issue" jurisdictions, there is no requirement to show a specialized need for a license.  This distinguishes them from their "may issue" counterparts, which require applicants to show "proper cause," "good cause," "good reason to fear injury to person or property," or some related formulation.  (For simplicity, I'll just use New York's formulation of "proper cause.")  The precise quantity of danger an applicant must face varies considerably among jurisdictions; "may issue" licensing is a broad spectrum of licensing policies.  Some jurisdictions, including Boston and Maryland, issue many licenses to business owners at risk of robbery.  Others, such as Hawaii, New Jersey, and San Francisco, hardly issue any licenses at all, essentially requiring police-documented death threats—and making it difficult to obtain licenses even then.

By the time Bruen was decided, there were effectively six "may issue" states:  California, Hawaii, Maryland, Massachusetts, New Jersey, and New York.  Three of these jurisdictions—California, Massachusetts, and New York— delegated the issuance of licenses to local officials using local policies.

Before Bruen, the definition of "good cause" in these three states was at the discretion of local licensing authorities.  In conservative jurisdictions, licensing officials routinely accepted that self-defense constituted "proper cause" to issue a license.  In liberal jurisdictions, however, licensing officials required substantially more reason, requiring anything from running a cash business to death threats to justify the license.

The result was an uneasy compromise.  Residents in conservative jurisdictions could obtain licenses to carry guns effectively on a shall-issue basis, while licenses in liberal areas were extremely difficult to obtain.  Liberal state legislatures fought to preserve their good-cause licensing requirement.  But they also looked the other way when conservative jurisdictions widely issued licenses, even though those licenses were unrestricted and usually valid statewide.  In online gun owner forums, one can find color-coded maps divided into green, yellow, and red jurisdictions ("green" for shall issue jurisdictions, "yellow" for moderately difficult may issue jurisdictions, and "red" for jurisdictions in which it was virtually impossible to get a license).  Where feasible, gun owners used these maps to move to jurisdictions with friendlier licensing officials.  And for gun owners, there were some advantages to being in a "may issue" state.  Compared with traditional "shall issue" states (especially in the South) "may issue" states had very few places in which a licensed person could not legally carry a firearm.

Bruen has destroyed that compromise.  After Bruen, all jurisdictions that require licenses to carry firearms must do so on a "shall issue" basis.  And the result is predictable:  legislatures in "may issue" states are scrambling to ban guns from as many locations as possible, including government buildings, stadiums, theaters, parks, financial institutions, public transportation, and restaurants.  Most devastatingly for gun owners, New York is trying to ban firearms on all private property at which the property owner does not post a sign welcoming firearms.  New York Governor Kathy Hochul, when asked where permit holders would be allowed to carry weapons, candidly replied, "Probably some streets."

Gun owners have always had the most rights in places where the gun issue has flown under the radar.  While legislatures in California, Massachusetts, and New York have passed strict gun laws, these legislatures have also placed few restrictions upon licensed gun owners.  With licenses difficult to obtain, these states did not give much consideration to where licensees could carry weapons.  Similarly, many private property owners are loathe to post signs banning gun carry; but they are going to be equally unwilling to post signs affirmatively welcoming gun owners.

If gun owners think the courts will bail them out, they are mistaken.  Courts probably will not force states to have a particular default rule for private property owners (allowing guns without a sign versus prohibiting guns without a sign).  Moreover, there is some precedent for what these states are proposing to do.  For many years, Alabama had a law prohibiting carrying pistols on premises not one's own, which the Supreme Court of Alabama upheld against a challenge that it violated the right to bear arms.

So the irony is that Bruen will be a pyrrhic victory for the gun owners Bruen was supposed to help the most.  In may issue states, those who already have unrestricted licenses will find themselves subject to far more restrictive carry laws than before Bruen was decided.  These gun owners might no longer have to fear that a licensing official will arbitrarily decide one day that they no longer have sufficient reason to carry a firearm in public.  But, as Gov. Hochul said, their new right to bear arms may be little more than the right to carry weapons on just "some streets."

I agree with Rob. Do not expect the Second Circuit to suddenly become enamored with the Second Amendment because Justice Thomas said so. The courts will resist (yes, I said it) Bruen the same way they resisted Heller. I hope the Supreme Court will resolve circuit splits in less than a decade.