Firearms, State Borders, and Article IV Privileges and Immunities

The Constitution provides that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”  Does this mean that a state requiring concealed carry licenses must maintain a process by which nonresidents can obtain such a license?  And, relatedly, must a state recognize a gun-carry license issued by another state in some, or all, circumstances?  After Bruen, the use of the Privileges and Immunities Clause in gun cases is almost certain to gain momentum—and recently-filed litigation challenging New York’s de facto concealed carry ban for nonresidents demonstrates how this provision may become relevant.

While arguments under the Privileges and Immunities Clause have surfaced in gun cases over the years, they’ve generally been unsuccessful.  Per the Court’s precedent, the protected privileges and immunities are those “activities that are sufficiently basic to the livelihood of the Nation”—and, most often, those that relate to an economic union among the states.  In past cases, the Supreme Court has held that the clause

provides important protections for nonresidents who enter a State whether to obtain employment, to procure medical services, or even to engage in commercial shrimp fishing. Those protections are not “absolute,” but the Clause “does bar discrimination against citizens of other States where there is no substantial reason for the discrimination beyond the mere fact that they are citizens of other States.” There may be a substantial reason for requiring the nonresident to pay more than the resident for a hunting license, or to enroll in the state university, but . . . [p]ermissible justifications for discrimination between residents and nonresidents are simply inapplicable to a nonresident’s exercise of the right to move into another State and become a resident of that State.

Prior to Bruen and the Court’s decision in that case that “th[e] definition of ‘bear’ naturally encompasses public carry,” courts frequently concluded that carrying a concealed firearm for personal self-defense was not the type of basic right protected by the Privileges and Immunities Clause.  For example, the Seventh Circuit in a 2019 decision noted that it was “unaware of a decision holding that a privilege of citizenship includes a right to engage in the public carry of a firearm, or, even more specifically, the right to carry a concealed firearm in another state.”

New York does not grant concealed carry licenses in any form to nonresidents who are not employed in the state.  As the Second Circuit observed in a 2005 case, Balch v. Pataki, a Virginia resident (and veteran Navy officer with a top-secret security clearance) who wanted to carry a concealed handgun while visiting his parents in New York was “neither a New York resident nor worker” and thus statutorily ineligible to carry a concealed firearm in the state.  And New York law continues to provide no process for applying for a concealed carry license other than through “the licensing officer in the city or county, as the case may be, where the applicant resides, is principally employed or has his or her principal place of business.” 

New York’s approach is not unique—Hawaii, for example, similarly does not grant concealed carry permits to nonresidents.  But most states do not have such a restriction, either because they have moved to a permitless carry system or because they maintain a process through which a nonresident can apply for and obtain a concealed carry permit.  New Jersey, for example, instructs nonresidents seeking a permit to “apply to the New Jersey State Police station nearest to their geographic location.”  And Massachusetts similarly maintains a process for non-residents to apply for a carry permit—though the permit must be renewed more frequently than a resident permit and carries a higher application fee.

When New York’s non-resident exclusion was challenged in Balch, the plaintiff brought claims under both the Second Amendment and the Privileges and Immunities Clause.  Before Heller and McDonald, the court made quick work of the Second Amendment claim.  Balch also suggested “that New York’s licensing scheme unconstitutionally discriminate[d] against both his protected rights under the Privileges and Immunities Clause and the ‘right to travel’ secured therein.”  The Second Circuit seemed skeptical that the right to carry a concealed handgun was protected by the Privileges and Immunities Clause in the first place, but proceeded to “assume, without deciding, that entitlement to a New York carry license is a privilege under Article IV.”  Recognizing that New York’s framework clearly discriminated against nonresidents by generally barring them from obtaining concealed carry licenses, the panel nevertheless found that the state’s interest in monitoring licensee behavior was sufficient to support that disparate treatment.  In other words, New York had tailored its approach to a state “interest in continually obtaining relevant behavioral information” by limiting licensees to in-state residents and those employed in the state for whom New York would be able to consistently monitor firearm-related behavior.

Now, a new lawsuit challenging the nonresident concealed carry license prohibition has been filed in the Western District of New York by the Firearms Policy Coalition and a group of individual plaintiffs who are Pennsylvania residents with concealed carry permits in that state and wish to carry concealed firearms while visiting New York for pleasure or business.  The complaint in Shaffer v. Quattrone brings both a Second Amendment and Privileges and Immunities claim.[1]  The plaintiffs argue that “New York’s licensing scheme violates the Privileges and Immunities Clause because it favors New York residents and discriminates against non-residents in the exercise of a fundamental right.”

The New York complaint comes on the heels of a Massachusetts trial court decision last August that granted a Second Amendment challenge to a prosecution for unlicensed gun carrying by a New Hampshire resident residing close to the state border.  The defendant in that case did not obtain a Massachusetts carry permit despite the state maintaining an application process for nonresidents.  The court there held that “[a] law-abiding resident of New Hampshire who is exercising his Constitutional right should not become a felon by exercising that right while he is traveling through Massachusetts merely because he has not obtained a Massachusetts license to carry.”  And the judge observed that, in his view, any separate nonresident licensing requirements “would inexplicably treat Second Amendment rights differently than other individually held rights.”  The Massachusetts Supreme Court heard oral argument in that case in September—considering in more depth how Bruen might impact nonresident firearm licensing—and some reporting has suggested that “the justices appeared unexpectedly skeptical of the state’s mandate that non-residents get a temporary license to carry weapons.”[2]

Post-Bruen, it seems likely that courts will tread cautiously with the threshold question of whether the Privileges and Immunities Clause protects the right to carry a concealed handgun in some form.  This is especially true in states where open carry is prohibited.  New York, for example, prohibits the open carry of handguns—so the state’s concealed-carry licensing system is the only way for someone in the state to exercise his or her public carry rights.  Given the Supreme Court’s emphasis in Bruen that the Second Amendment’s public carry right is not a “second-class right,” one might reasonably expect courts to take more seriously claims that public gun carry is a protected privilege and immunity.

As with the Second Amendment, however, the right to be free from nonresident discrimination under the Privileges and Immunities Clause is not absolute.  The Balch court, for example, noted that “the State may defeat the challenge by showing sufficient justification for the discrimination.”  The Supreme Court’s 1978 decision in Baldwin v. Fish & Game Commission is instructive on this point.  There, the justices upheld Montana’s decision to charge nonresidents approximately 25 times more than residents for an elk hunting license.  Apart from whether elk hunting was sufficiently important or “basic” to fall within the clause’s protection, the Court emphasized that Montana’s elk population was “finite and must be carefully tended in order to be preserved.”  And the justices explained that the Court had previously sanctioned the discriminatory treatment of nonresidents upon a sufficient showing of danger or potential harm stemming from nonresident activities.    

Baldwin and other cases demonstrate a general distinction between absolute nonresident discrimination (i.e., only Montanans can hunt elk), and relative nonresident discrimination (i.e., nonresidents can hunt elk too, but they have to pay more)—with seemingly more regulatory flexibility in the latter category.  That would suggest that Massachusetts’ law might be permissible under the Privileges and Immunities Clause while New York’s is on shakier ground.  As to the monitoring rationale the court accepted in Balch, it’s less clear post-Bruen that New York could claim to be closely monitoring all concealed carry license-holders constantly—as opposed to the type of upfront monitoring during the application process that could seemingly be replicated for nonresidents.  Rather, the state’s arguments may focus more on the burden of instituting a nonresident licensing process.

Another takeaway here relates to the interplay between the Second Amendment and the Privileges and Immunities Clause.  Privileges and Immunities jurisprudence continues to employ a tailoring analysis where the state can discriminate more against nonresidents the stronger its policy justification.  This enables plaintiffs in these cases to take advantage of both historical and scrutiny-based arguments.  The Massachusetts case should be an interesting signal of where the history points in this area.  On one hand, historical carry restrictions often exempted those traveling a long distance (including across state or territorial borders).  On the other hand, at the level of underlying principles, states in the early-to-mid 1800s began to employ vastly different regulatory approaches—including for public carry—without exempting out-of-state visitors from those requirements.  But regardless of the Second Amendment outcome, the Privileges and Immunities argument in a case like Shaffer will depend solely on the strength of the state’s policy justification for barring nonresidents from concealed carry altogether.