July 21, 2021
By Jacob Huebert
In New York, it’s virtually impossible to exercise your Second Amendment right to bear arms. Yesterday, the Goldwater Institute filed a brief urging the U.S. Supreme Court to change that.
New York law bans openly carrying a handgun, and you can only carry a concealed firearm if you obtain a state license. Before you can get that state license, a government official must determine (among other things) that you are of good moral character and lack a history of crime or mental illness, and that “no good cause exists for the denial of the license.”
That might sound restrictive, but in practice, it’s even worse. New York courts have ruled that the “no good cause” language means that a person seeking a concealed carry license must “demonstrate a special need for self-protection” that’s different “from that of the general community or persons engaged in the same profession.” Just wanting “to protect one’s person and property” is not enough. Neither is living or working in a high-crime area. Instead, you have to show some special reason why you need a firearm to defend yourself against a specific threat. In New York City, an applicant must show “extraordinary personal danger, documented by proof of recurrent threats to life or safety.”
Of course, almost no one can satisfy that requirement, because most victims of violent crime don’t receive a specific warning in advance. So while 7.6% of adult Americans have a concealed carry permit (and people in some states, such as Arizona, don’t even need a permit), only 1.27% of New York State’s adult population does.
This is the opposite of how constitutional rights should work. If constitutional guarantees for individual rights do anything, they should at least create a presumption that you can exercise a right unless the government has some compelling reason why you should lose it and provides you with due process of law before taking it from you.
Fortunately, some New York gun owners have sued to challenge the state’s law for violating their Second Amendment rights, and the Supreme Court will hear their case in its new term that will begin in October.
The Goldwater Institute’s brief supporting the plaintiffs points out that New York’s law is not normal.
Most states either don’t require a permit to carry a concealed firearm or have a permitting law that allows individuals who satisfy objective criteria—such as a lack of a disqualifying criminal record or mental illness—to readily obtain a license. States with that kind of licensing regime are called “shall issue” states because the law commands that, when someone satisfies the criteria, the relevant official shall (that is, must) issue the permit.
The remaining states have “may issue” licensing laws, which allow officials to exercise discretion as to who may carry a concealed firearm on a case-by-case basis—generally applying vague, subjective, or otherwise difficult criteria.
Besides New York, only eight states, plus the District of Columbia, have “may issue” laws. And, as our brief points out, that understates how extraordinary New York’s law is. In fact, three of the “may issue” states—Connecticut, Delaware, and Rhode Island—actually typically give a license to anyone with a clean background check, which makes them more like the “shall issue” states. And D.C. currently operates as a “shall issue” jurisdiction thanks to a Court of Appeals decision that found that its “may issue” scheme unconstitutional.
That means only five other states have an extremely restrictive regime like New York’s. The most extreme might be in Hawaii, where a local police chief may only grant a permit “in an exceptional case.” As a result, last year, only 23 people in Hawaii applied for a concealed carry license for a purpose unrelated to a job—and all of them were denied. Even if one counts people who use a gun for work purposes (for example, as a security guard), only 0.02% of adult Hawaiians hold a concealed carry permit.
Even in some of the most restrictive jurisdictions (but not Hawaii), local officials in some counties exercise their discretion to issue permits on a “shall issue” basis, while officials in other parts of the state (typically big cities) virtually never issue permits.
So when opponents of Second Amendment rights suggest that striking down New York’s law would widely disrupt states’ schemes for regulating firearms, they’re wrong. In fact, it would only disrupt the schemes of the few states that allow officials to completely deny almost everyone the right to bear arms. (Not that it should matter—an unconstitutional infringement of individual rights doesn’t become constitutional just because a lot of states do it.)
It’s been a while since the Supreme Court decided a Second Amendment case. It’s said almost nothing on Second Amendment rights since 2008’s District of Columbia v. Heller, which recognized that the Second Amendment protects an individual right to have a firearm for self-defense in the home, and 2010’s McDonald v. City of Chicago, which ruled that the Fourteenth Amendment prohibits states from infringing that right. As the Court has turned down many opportunities to hear Second Amendment cases over the past decade, several justices have said that it should do more to ensure that states actually respect the right that the two landmark decisions upheld. Justice Thomas warned that the Court was in danger of “relegating the Second Amendment to a second-class right” even though “Second Amendment rights are no less protected by our Constitution than other rights enumerated in that document.”
Fortunately, with the New York case, the Court has an opportunity to build on Heller and McDonald by recognizing that the Second Amendment protects not only the right to keep arms in one’s home, but also the right to bear arms—without going through an arbitrary, virtually impossible licensing process like New York’s.
Jacob Huebert is a Senior Attorney at the Goldwater Institute.