The Right to Carry a Gun in Public

The Second Amendment has been interpreted to allow people to carry guns for self-protection, but not everyone can get a permit, and states can prohibit carrying in certain places.

By , Attorney

On June 30, 2022, the United States Supreme Court struck down a New York law that restricted carrying handguns in public. (New York State Rifle & Pistol Association v. Bruen, 597 U.S. __ (2022).) The ruling means that other states' similar laws are unlikely to withstand a legal challenge, with the result that many more people will carry concealed handguns in the United States.

"May Issue" Concealed-Carry Laws in New York and Other States

"May issue" permit laws allow officials to decide who gets a license to carry. These laws have objective requirements like age restrictions, criminal background checks, and fingerprinting. But the law leaves it to licensing officials to determine whether an applicant who meets those requirements has also shown a special need for the license. Besides New York, states that have "may issue" laws include California, Hawaii, Maryland, Massachusetts, and New Jersey. "Shall issue" laws, by contrast, require officials to issue a license when the applicant satisfies a set of cut-and-dry requirements (such as being of age and having no serious criminal record).

New York's "may issue" law required that anyone seeking a license to carry a concealed handgun show "proper cause" for the license, which meant that an applicant had to articulate more than just a general need for self-protection. Instead, applicants had to demonstrate a "special need" for self-defense, such as continuous threats to their lives or safety. Licensing officials got to decide whether the "special need" was enough to issue the license. If they decided it wasn't and denied the concealed-carry permit, the applicant couldn't legally carry a handgun at all in public, because the state also didn't allow "open carry."

Supreme Court: "May Issue" Laws Violate Second Amendment

In its June 2022 decision, New York State Rifle & Pistol Association v. Bruen, the Supreme Court held that "may issue" laws violate the Second Amendment of the U.S. Constitution because the right to bear arms includes the right of ordinary law-abiding citizens to carry firearms in public for self-defense.

Court Expands the Right to Self-Defense at Home to a Right to Self-Defense in Public

The Bruen case expanded the Court's 2008 decision in District of Columbia v. Heller, 554 U.S. 570 (2008), which held that people have a right to keep handguns in their homes for self-defense. For many years before Heller, scholars and anti-gun proponents argued that the Second Amendment provides a right to own guns only in connection with service in a militia, and that this right should not extend to private individuals. This argument was based on the wording of the Second Amendment itself, which states, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

But the Heller Court said that the right to own guns is not restricted to militia activity. The Court held that the Second Amendment creates an individual right to possess a gun for self-defense, at least in the home. Fourteen years later, in Bruen, the Court expanded that right to include the right to carry handguns in public for self-defense.

Handgun Restrictions Not Justified by Increased Mass Shootings and Urban Violence

The three Justices who dissented (disagreed with the decision) in Bruen explained that states with "may issue" laws have large urban populations, so they have a greater need to limit guns in public. These Justices (Breyer, Sotomayor, and Kagan) also noted that mass shootings and other forms of gun violence are on the rise. But Justice Alito, who agreed with the majority decision and wrote his own opinion, replied that increasing gun violence is the reason people feel the need to carry guns for self-defense.

Some Restrictions on Concealed Guns Still Allowed

The Bruen decision seems to suggest that states can't impose any restrictions that leave it to licensing officials to decide who can carry a handgun. But states can still restrict concealed carry licenses based on objective criteria.

The Court in Bruen also okayed the rule that states can prohibit people from carrying guns in "sensitive places" such as schools and government buildings. But the Justices said that a place like Manhattan doesn't fall into that category simply because it's a crowded urban area.

How States Are Responding to Bruen

The Bruen decision probably means that the licensing laws in California, Hawaii, Maryland, Massachusetts, and New Jersey are unconstitutional. In fact, just days after the decision came out, the California Attorney General informed licensing authorities that they could no longer require proof of "good cause" (similar to New York's "proper cause") for a public-carry license, because the requirement was unconstitutional.

But to deal with Bruen, some states are already changing the objective criteria of their licensing statutes to restrict concealed carry permits. Some of the changes include things like:

  • increasing the legal age required for a license
  • increasing training requirements, and
  • expanding the categories of criminal convictions that disqualify someone from getting a license.

Given the long history of disagreement about gun rights in the United States, these kinds of changes will likely result in further legal challenges down the road.

Talk With a Lawyer

Carrying a gun illegally (because it's not licensed or you're disqualified from carrying one, for example) is still a crime. Before carrying a gun, it's important to know the licensing requirements and rules for your state, country, and city. If you have been charged with any firearm offenses, or if you want a full explanation of the gun laws that could affect you, speak with an experienced local criminal defense attorney. An experienced lawyer will know how the law in your area affects your rights.

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