In District of Columbia v. Heller, the Supreme Court recognized an individual right to keep and bear arms for self-defense. Although the decision settled whether persons have a right to keep arms when they are not enrolled in an organized militia, the decision raised many follow-up questions. Is the Second Amendment limited to keeping arms inside the home or is public carry also protected? What standard of review should courts employ? What arms are protected? Since Heller, the Supreme Court has been mostly silent, leaving the lower courts to address these (and other) issues.
At present, perhaps the most politically sensitive question involves the constitutionality of restrictions on the public carry of firearms, whether open or concealed. This issue is ripe for resolution. Eight circuits have split three ways. Their positions have become entrenched by stare decisis. And the remaining four circuits are unlikely to produce any significant decisions because their states generally permit individuals to carry firearms.
The First, Second, Third, and Fourth Circuits have held that states may restrict all public carry to those citizens who can prove that they face a special danger. These circuits have generally bracketed the issue of whether the Second Amendment applies beyond the home. Assuming it does, these circuits have held that broad restrictions on public carry withstand intermediate scrutiny. The Third Circuit has additionally held that New Jersey’s restriction on public carry was sufficiently longstanding that it did not “burden conduct within the scope of the Second Amendment’s guarantee.”
The D.C. Circuit has reached the opposite conclusion. District law only permits individuals to carry concealed firearms with a license, and the District limits licenses to individuals who had “good reason to fear an injury to his or her person or property.” Unlike the First, Second, Third, and Fourth Circuits, the D.C. Circuit enjoined the “good reason” requirement, holding that it violated the Second Amendment.
The Seventh Circuit struck down Illinois’s ban on publicly carrying loaded firearms for self-defense. Although the Illinois case involved a complete ban on concealed and unconcealed firearms, the Seventh Circuit’s opinion strongly suggested that the court would not approve limiting public carry to those with a special need.
The Ninth Circuit has held that the Second Amendment, at most, protects the public carry of unconcealed weapons. In a widely watched en banc decision, the court held that the Second Amendment does not grant a right to carry a concealed weapon under any circumstances. Individuals who want to challenge a ban on public carry in that circuit may only raise a Second Amendment challenge to a jurisdiction’s restrictions on openly carried firearms. (The Ninth Circuit has yet to rule on whether a general prohibition of openly carried firearms is constitutional.) In an earlier case, the Tenth Circuit took a similar position in a challenge to a Colorado law limiting concealed handgun licenses to residents.
The public carry issue has not generally arisen in the Fifth, Sixth, Eighth, or Eleventh Circuits. All jurisdictions in those circuits allow law-abiding citizens to obtain permits to carry concealed weapons, and most also allow individuals to carry firearms openly. These circuits may face narrower public carry cases, such as the constitutionality of prohibitions on carrying weapons in specific locations (e.g., public parks). But these circuits are unlikely to rule on a case involving a broad prohibition on public carry.
Not only has the circuit split on public carry become mature, there is also a conflict within at least one circuit. The D.C. Court of Appeals (the local court) has steadfastly refused to accept the D.C. Circuit’s decision striking down its “good reason” requirement for a license to carry concealed firearms. Like the Ninth Circuit, the D.C. Court of Appeals has held that the District of Columbia has plenary authority to regulate concealed weapons, and that any Second Amendment right to public carry, if it exists at all, is limited to weapons carried openly. So litigants in the District of Columbia face different rules, depending on whether they are in federal or local court. That itself is a strong reason to grant certiorari to resolve the public carry issue.
Yet, the Supreme Court has been content to let these splits fester. The closest it has come to deciding a public carry case was granting certiorari in New York State Rifle & Pistol Association, Inc. v. City of New York. That case raised the issue of whether New York City could ban licensed gun owners from transporting unloaded guns in locked containers to second homes and shooting ranges outside New York City. New York City, faced with almost certain defeat in the Supreme Court, amended its regulation to allow the transportation of firearms outside the City, and the Supreme Court dismissed the case as moot.
For gun rights advocates, the mooting of the case was a significant blow. Advocates had hoped the New York case would provide a springboard to challenge public carry restrictions. And they had hoped to use the New York case to counter the trend in lower courts to review Second Amendment regulations under a deferential intermediate scrutiny standard.
The mooting of the New York case may have also frustrated the Supreme Court, albeit for the opposite reason. The New York case offered an opportunity for the Supreme Court to address the lower courts’ narrowing of Heller, without forcing the Court to weigh in on the politically charged public carry issue directly. The Court’s decision to take the case probably signaled that key justices wanted to take an incremental approach in Second Amendment cases.
While New York City prevented the Court from dipping its toes in the Second Amendment waters, there is reason to believe that a critical mass of justices is now ready to dive in. Three justices (Alito, Gorsuch, and Thomas) dissented from the dismissal of the New York case. A fourth, Justice Kavanaugh, wrote a concurrence to share his concern about lower courts narrowing Heller. He thought that issue could be best addressed by taking another Second Amendment case on its docket.
Of those pending cases, six involve challenges to the constitutionally of public carry restrictions. Five raise the constitutionality of a special need requirement to obtain a license to carry a firearm (three from New Jersey, one from Massachusetts, and one from Maryland). The sixth challenges Illinois’s refusal to issue licenses to carry to most nonresidents. The Ninth Circuit has additional cases in the wings seeking to invalidate open carry restrictions in Hawaii and California.
To resolve the circuit split, the Supreme Court should grant one of the petitions from New Jersey. New Jersey does not offer any substantial avenue for individuals (other than active or retired law enforcement officers) to carry firearms outside the home. For handguns, New Jersey law does not distinguish between open and concealed carry. Both activities require the same handgun carry permit, which New Jersey strictly limits to those with a “justifiable need.” New Jersey also generally does not permit individuals to carry loaded rifles or shotguns, nor does New Jersey have an emergency self-defense exception to its public carry laws.
In litigation, “may issue” states are often described as requiring the applicant to show some special danger apart from the regular community. This description is an oversimplification. The amount of special danger an applicant must show varies widely across jurisdictions. At one end of the spectrum, many licensing officials in these jurisdictions ignore the need requirement and issue licenses on essentially a “shall issue” basis to qualified applicants. At the other end are jurisdictions (e.g., San Francisco, California) that almost never issue licenses regardless of how much danger an applicant may face. Between these extremes is a vast middle ground of jurisdictions that issue permits to applicants who demonstrate substantial need—for example, business owners who make nightly cash deposits.
New Jersey falls on the near-total-ban end of this spectrum. New Jersey law requires a “justifiable need” to carry a handgun. This standard requires “specific threats or previous attacks which demonstrate a special danger to the applicant’s life that cannot be avoided by means other than by issuance of a permit to carry a handgun.” The New Jersey Supreme Court has held that those engaged in high-risk professions do not have a justifiable need to carry a handgun. The court, thus, has affirmed the denial of permits to a diamond dealer who carried loose diamonds and a theater manager making cash deposits, who may have been at significant risk for robbery. New Jersey’s criteria are so strict that even applicants who face significant credible danger have difficulty securing permits, often requiring them to appeal from initial denials. New Jersey’s justifiable need standard, thus, is close to a blanket ban.
Cases from more moderate discretionary jurisdictions could produce a muddled non-answer. If the Court holds, in a non-New Jersey case, that the Second Amendment permits states to restrict public carry to those who have a special danger distinct from the general community, it will leave open the question of how much danger an application must face before he becomes constitutionally entitled to a license. Does a license have to be available to business owners? Residents of high-crime areas? Victims of stalking or domestic violence? Only those who face death threats? From the experience after Heller, lower courts will likely defer to the various licensing agencies. And because the amount of danger an applicant faces is fact-specific, the Supreme Court would be unlikely to intervene in any particular case. In essence, this kind of decision would continue to encourage lower courts to “narrow from below.”
Unlike New Jersey, other states have more complicated legal regimes, which could result in a fragmented decision. The only state stricter than New Jersey is Hawaii, which has not approved a single carry license for a private citizen (other than a security guard) since 2013. But Hawaii has separate licensing for concealed and unconcealed weapons. Even if five justices agreed that the Second Amendment required some form of public carry, they may not be able to agree on the remedy. Historically minded justices may take the position that the Second Amendment protects only openly carried weapons (the majority nineteenth-century position). Other justices may believe that states can choose whether to authorize open or concealed carry, as long as it provides one option. The result could be a fragmented judgment on whether appropriate relief is to force Hawaii to issue a license for openly carried weapons or to let it choose which type of license to issue.
California’s carry laws create similar problems. California’s carry laws defy easy summary. But with some oversimplification, California has both a general ban on carrying firearms openly and a licensing requirement for concealed weapons that requires applicants to show “good cause.” As with a Hawaii case, a California case could cause a narrow majority to split on the question of appropriate relief. California’s laws also have several other nuances. In rural areas, a person can get a permit to carry a firearm openly. The prohibition against openly carrying firearms does not apply in some parts of unincorporated rural areas. And California has an emergency self-defense exception to its prohibition on carrying loaded firearms. Some moderate justices may think that these narrow exceptions are constitutionally sufficient, which may detract from deciding the core issue.
Maryland’s carry laws also have peculiarities. Maryland, like New Jersey, does not distinguish between open and concealed carry of handguns. But Maryland has no general prohibition against openly carrying rifles and shotguns, whereas New Jersey does not leave citizens any accessible avenue to carry firearms of any kind.
The Illinois case is also a poor vehicle to decide the scope of the right to bear arms. While Illinois generally prohibits nonresidents from getting a license to carry, Illinois law also permits nonresidents to carry weapons in their vehicles if they have a carry license from their state of residence. New Jersey, in contrast, requires both residents and nonresidents to have a New Jersey permit, and the state makes it equally difficult for a nonresident to obtain one. A New Jersey case, thus, would present the public carry issue in the most straightforward manner.
Finally, a New Jersey case would also be the hardest to moot. California, Hawaii, Massachusetts, and New York issue permits at the local level. In the face of a potentially adverse Supreme Court decision, the local licensing official could simply change his licensing criteria. In fact, Hawaii officials may be in the process of shifting their licensing criteria to improve their chances of prevailing in a pending Ninth Circuit challenge to Hawaii’s open carry restrictions. While Maryland issues permits at the state level, the state police have plenary power to decide what constitutes “good and substantial reason” to issue a carry permit. They, too, could easily moot a case by expanding the criteria under which they issue permits. New Jersey licensing officials lack this power. The state’s strict “justifiable need” standard is codified into law and backed by numerous state supreme court decisions narrowly defining the term. Moreover, New Jersey law gives both police and judges a role in issuing carry licenses. While local New Jersey judges ultimately issue the licenses, either the local police chief or the state police superintendent must grant the preliminary approval. If police chiefs unilaterally loosen their criteria, New Jersey judges will likely override their license approvals; and if state judges unilaterally try to issue more licenses over initial denials by police, the police chiefs can appeal their decision to issue licenses (and they usually prevail). To moot Supreme Court review, the New Jersey legislature would likely have to change state law. After the New York case, the Supreme Court should consider a Second Amendment petition that does not allow for easy gamesmanship by the parties.