A line of handguns for sale at a Pennsylvania gun store during April 2023
A line of handguns for sale at a Pennsylvania gun store during April 2023 / Stephen Gutowski

Analysis: Why Post-Bruen Gun-Carry Restrictions Might Backfire [Member Exclusive]

Formerly may-issue states continue to thumb their noses at the Supreme Court by passing some of the country’s most restrictive concealed carry laws. In doing so, they run the risk of undermining licensing schemes altogether.

Last Monday, Maryland became the third state impacted by the Supreme Court’s ruling in New York State Rifle and Pistol Association v. Bruen to pass a complete overhaul of its concealed carry laws. In a pair of bills, the state assembly greatly increased the application fees for new “wear and carry” permits, expanded its training requirements, and added new “sensitive places” throughout the state where licensed carry would be a crime. The off-limits areas include almost all publicly-accessible private property, like stores or restaurants.

The bills followed a familiar blueprint already established by states like New York and New Jersey, who were the first two states to rebuke the Court with onerous new laws. Fellow affected states, Hawaii and California, appear poised to do the same.

But those states are tempting judicial fate with their replacement laws, as evidenced by the parameters laid out by Justice Thomas in his Bruen opinion. The early track record of legal challenges to New York and New Jersey’s carry laws, where there have thus far been at least five injunctions between the two, can also attest to that fact. But even aside from the constitutional issues, on a more practical level, establishing a political norm of using licensing regimes to make exercising gun rights as difficult as possible creates new skepticism over the very idea of licensing laws.

The Supreme Court went to great lengths in its Bruen opinion to make clear that it was not yet prepared to call into question the legitimacy of standard “shall-issue” licensing laws.

“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]’,” Justice Thomas wrote in his opinion. “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. 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.'”

This carve-out for “shall-issue” regimes was likely the result of a compromise done to mitigate political backlash and shore up support among justices. It remains unclear how “shall issue” permitting laws really fare when closely examined under the text and historical tradition test articulated later in the ruling.

Nevertheless, the American people currently are broadly in favor of that compromise. A November 2022 poll from Marquette University’s law school found that 64 percent of U.S. adults favor the New York State Rifle and Pistol Association v. Bruen ruling. Similarly, a separate Marquette poll found that 62 percent favor allowing the concealed carry of handguns with a permit or license required. Conversely, permitless carry laws routinely poll poorly despite their continued success in red states.

But that equilibrium, in which Americans broadly favor both concealed carry rights and licensing laws, could ultimately become upended if more and more states continue to make lawful carry all but impossible. If push comes to shove and one has to go, it’s more than likely that the American people (and the Supreme Court, which has tended to act only after public opinion on guns has shifted) will choose licensing laws.

The recent experience in North Carolina is a perfect example of this. For years, gun-rights advocates favored repealing the state’s permit-to-purchase law for handguns, but to no avail. Meanwhile, at least nationally, the policy continued to poll favorably among the public. However, following the COVID pandemic and a series of scandals involving local sheriffs delaying permit applications, enough political momentum was finally there to get the repeal bill through the legislature. Two years later, with improved majorities, Republican lawmakers were able to get the repeal into law after overriding a veto.

Legal rulings striking down many of these likely unconstitutional Bruen replacement laws may arrive before sentiment shifts enough to make a difference. But litigation often takes many years, and the Supreme Court has thus far shown an unwillingness to intervene in New York’s law despite its restrictions being the first enacted and arguably the most burdensome. Therefore, relief from the courts might not be in the offing for some time.

As permitless carry approaches a political wall in the near future, continued efforts by gun-control advocates to undermine workable permitting schemes elsewhere across the country risks shifting the Overton window toward more permissive gun-carry systems, whether among the general public or the courts.

Since gun-control advocates very much don’t want to see that happen, they may be forced in the near future to give up the push for restrictive “shall issue, may carry” licensing schemes.

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Created by potrace 1.16, written by Peter Selinger 2001-2019

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Created by potrace 1.16, written by Peter Selinger 2001-2019

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