The landmark Supreme Court case New York State Rifle and Pistol Association Inc. v. Bruen expanded Second Amendment rights and called into question a number of state laws restricting public carry. Prof. Joseph Blocher of Duke Law School explains how Bruen differentiated between "may issue" and "shall issue" public carry laws. Blocher explains how Justice Thomas, writing for the majority, questions the discretion in "may issue" states and finds them problematic. As a result, Justice Thomas knocks down New York's concealed carry law and in the process changes the landscape of what it means to regulate guns in public.
Joseph Blocher is a leading Second Amendment scholar and a professor at Duke Law School and serves as Co-Director of the Center for Firearms Law.
A Conversation with Second Amendment Scholar, Prof. Joseph Blocher
NYSRPA v. Bruen - Fact of the Case
Joel Cohen (Host): Hello and welcome to Talks on Law. I'm Joel Cohen. Today, we're joined remotely by a Second Amendment scholar, a law professor at Duke Law School, my alma mater, and the co-director of the Duke Firearms Law Center, Professor Joseph Blocher. Today, I wanted to have you here to talk about Bruen. We’re going to talk about the law, but let's start with the facts. Who is suing whom in this case, and what gun rights or gun laws are at play?
Professor Joseph Blocher: So fundamentally, I think at a broad level, Bruen is a case about public carry. So Heller, uh the challenge there, uh Dick Heller who was the named plaintiff, wanted to have a handgun in his home for self-defense. So one way to think about it is it was a case about keep. Keeping arms. If you think about the text of the Second Amendment, it says, “the right to keep and bear arms.” Heller gave a right to have a handgun in the home for self-defense subject to some restrictions, but it didn't say anything clearly about how the right extends outside the home. And of course, a lot of people like to carry guns outside the home for purposes including self-defense.
May Issue v. Shall Issue Laws
Professor Joseph Blocher: Now, all states permit that in one way or another. There's no state that totally prohibits public carry, but there's two ways you could carry a gun in public, You could either do it openly, that means visibly, or concealed. There's a long and interesting history about open versus concealed carry regulations, but most states today prefer if people are going to carry guns publicly, that they do it concealed. We can talk about, you know, the policy reasons why that might be, then there's a division among the states about, well how do we regulate who's going to carry their guns in public? And this is where sort of Bruen comes into focus. Most states still require some form of permit or license if you're going to carry a concealed handgun in public, and those states are typically divided into two categories. The first are what are called the may issue states, and this is where New York was. In the may issue states,” you typically have to show something like proper cause, which was New York's requirement, or good cause which some other states have, in order to get your permit to carry a concealed handgun in public. What that usually means is you've got some really heightened need for self-defense, like you've been the victim of a crime or threats or you've got a stalker or something kind of above and beyond the average law-abiding citizen. Those are the may issue states.”
Joel Cohen (host): So it can't be, “hey look, I feel safer with my gun, and I'd like to carry it around.”
Proper Cause or Good Cause
Professor Joseph Blocher: Exactly right, and so this is a heightened, above-and-beyond just a general need or desire for self-defense. And it's worth, you know, emphasizing this gives the licensing official some discretion, right? They can decide, is your cause good enough? Is your cause proper enough, and that's one thing that the justices are really concerned about at the oral argument we can talk about a little bit more in the opinion. So, those are the may issue states, there's today – only depending on how you count it – six to eight of them, but they're big states, or they were big states. We'll see how many of those laws survive, but that includes places like California, Connecticut, New Jersey, New York, Massachusetts, Maryland, Delaware, Washington D.C. It covers about a quarter of the American population, right. If you go back even just 30-35 years, most states had may issue regimes, but we've seen a sort of dwindling–
Joel Cohen (host): Yeah, this was something that I was surprised about, you know, in reviewing some of your writing. You know, even back in the 80s, the majority of states were may issue. In other words, you needed to show this “just cause” or “good cause” to get a permit to carry.
May Issue States under Bruen
Professor Joseph Blocher: That's exactly right. I mean, in 1987, the number was 26 states that were may issue, plus another 16 that outright prohibited the concealed carrying of handguns. So, we've seen a lot of deregulation at the state level, and that's just political choice. The Second Amendment – those aren't laws that have been struck down, for the most part. Washington D.C. lost a case, but for the most part, the laws have been upheld until this case. It's just been a matter of political choice and deregulation. I should say, and this is the sort of we're getting to the second and third categories, may issue is the one that was before the court here. There's a second category known as shall issue, and here there's still criteria. You still have to get a permit, but the criteria are more objective. So, it could be things maybe like training, you've got to have, you know, 15 hours of experience on the range or whatever, but it's at least nominally more objective criteria. If you check the boxes then they shall issue a permit, hence shall issue jurisdictions.” Then, the third category is the permit-less jurisdictions. If we go back again to 1987, there's only one of those. It was Vermont. Today, there's more than 20, and that's just what it sounds like. You don't need a permit to carry. You know, you still have to be a legal gun owner. I mean, you can't be a convicted felon. You can't be adjudicated mentally ill. Those are still requirements, but if you are legally allowed to possess a gun, then you can carry it in public with no permit, no training, no additional background check or anything like that. So, in Bruen, the focus is on that first category which is usually considered the most stringent and the most strict – the may issue regimes. And the Court's decision in Bruen, which we could unpack, basically says that they are constitutionally impermissible or at least questionable under the Second Amendment.
Host: Yeah that's a good question. Are they saying that may issue states have it wrong or are they saying that the may issue law in New York was too burdensome?
Prof. Blocher: It's a great question, Joel. I have to say, it's a little obscure to me. I mean, the court is clear that; i'll say that the clear part it is that the majority here (and it’s a six-justice majority) does not like may issue regimes. There are at least two reasons why they seem skeptical of them. One, is that they give too much discretion to licensing officials and that could be a problem because it introduces the possibility of bias – only insiders get their permits, only elites, well connected, etc. The other is that the standard is just too hard to satisfy so that, in practice, this is effectively a prohibition on public carry for the majority of law-abiding citizens. And that's kind of a different problem, right. You could have a system that's discretionary but easy to satisfy or a system that's objective and really hard to satisfy. Either one of those could be a problem, but the court does say specifically shall issue restrictions are fine – the 43 states that have either shall issue or permitless regime, those are still fine. Permitless is obviously okay, but even shall issue, it's fine. That's okay, we just want it to be more objective and I think we're going to see a lot of litigation on that point because some of those shall issue states actually do have some discretion baked into them like you could get denied a gun even in a shall issue state if you're found to lack a good moral character or if there's signs that you're dangerous. So the line between these categories is not totally bright, but the court blessed those other states and so I think a lot of the may issue states are now going to try to fit themselves under that umbrella and say, look now we're shall issue and you said that's okay, so we should be okay.