“May issue” concealed carry laws are out, thanks to the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen, but they’re not the laws that are likely to be implicated by the Court’s opinion. We’ve already seen SCOTUS vacate lower court decisions upholding bans on so-called assault weapons and “large capacity” magazines, and Bruen has been referenced in new challenges to the “sensitive places” and “good moral character” or “suitability” concealed carry restrictions slapped on the books in blue states like California, New York, and New Jersey in recent weeks as well.
The pro-gun control website The Trace reports that anti-gun activists are also worried that another subjective and arbitrary gun control law on the books in a handful of states is also in danger thanks to the Bruen decision: permits to purchase a firearm.
Of the 14 states that have such a policy, three — Massachusetts, New Jersey, and New York — are may-issue, giving authorities the discretion to deny applicants a license in the interest of public safety, again based on criteria beyond basic requirements. Such criteria includes arrests that don’t result in convictions and other documented instances of violent behavior, including domestic violence. Now that the court has struck down may-issue for concealed carry, these last vestiges of the policy may be ripe for a court challenge as well, legal experts say.
“I wouldn’t be surprised, given the similarity,” said Alexander McCourt, an assistant professor at Johns Hopkins University’s Bloomberg School of Public Health. In many permit-to-purchase states, the handgun purchasing permit and concealed carry permit processes are one and the same, involving some of the same paperwork and evaluated by the same issuing authority, McCourt said. Several permit-to-purchase states also require handgun safety training, fingerprints, photographs, proof of residence, and waiting periods to own or buy a gun, just as they do for concealed carry permits. “There’s just a lot of parallels,” he said.
Issuing authorities in some of the permit-to-purchase states without may-issue still wield the discretion to deny permits, in the form of suitability and character requirements. In North Carolina, where purchase permits are required for handguns only, some sheriffs require applicants to be of “good moral character.” It’s unclear exactly how issuing authorities determine this, but it’s not “arbitrary discretion,” McCourt said. “They have to at least articulate a reason that could then be appealed and challenged.” McCourt expects suitability and character requirements to be challenged in court, as well.
As well they should. As The Trace acknowledges (somewhat surprisingly, I have to say), the only real historical analogues to the current permit to purchase laws are some 19th Century statutes that were put in place specifically to prevent black Americans from exercising their right to keep and bear arms.
In 1828, Florida passed a law requiring formerly enslaved people to obtain a license from a justice of the peace in order to use and carry a gun. Delaware followed three years later. In 1865, just as the Civil War drew to a close, Mississippi enacted a law requiring free Black people to obtain a license from “the board of police of his or her county” to keep “firearms of any kind, or any ammunition.” That same year in Louisiana, Black residents were required to seek approval from police and their employer if they wanted to own a gun.
“This is where the new methodology runs into trouble, because we have a history of racist gun laws,” said Adam Winkler, a professor at UCLA School of Law. “How do you even conceptualize those in a history-and-tradition [context]? On one hand, you’d say to ignore them, because they’re racist,” and thus unconstitutional.
That’s really the only hand you need, to be honest. Nevertheless, gun control groups appear ready (if not exactly eager) to cite these racist gun control laws as justification for the current crop of permit to purchase mandates.
David Pucino, the deputy chief counsel at Giffords Law Center, the legal arm of the gun reform group, said that according to Justice Clarence Thomas’s majority opinion in Bruen, historical analogues don’t have to be exact to adhere to the methodology of Bruen — the intent of the law and the context around its enactment is what matters. “You don’t necessarily have to look for the existence of the exact same law hundreds of years ago,” he said. “It’s the how and the why that’s going to be the key to the historical analogue.”
In its present-day iteration, permit-to-purchase is viewed by lawmakers and gun safety advocates as a way to ensure that guns don’t get into the hands of someone who may use them for harm. Most states require only a criminal background check for a gun sale through a federally licensed dealer. Twenty-one states require background checks with private gun sales. In permit-to-purchase states, retail or private sellers can’t transfer a gun unless the buyer has a law enforcement-issued license, and applicants are often required to show up in person at a police station to apply. Depending on the state, the licenses are valid anywhere from 30 days to 10 years, and applicants must get rechecked upon renewal.
In its present day iteration, permit to purchase still impacts black Americans more than white would-be gun owners. A 2021 study that looked at approval rates for pistol purchase permits in Wake County, North Carolina, for example, found that black applicants were nearly three times as likely to be denied compared to their white counterparts.
The fundamental problem with these laws is that they continue to treat gun ownership as a privilege to be doled out by local sheriffs or the whims of a police chief instead of the constitutionally-protected right that it is. States with these permit to purchase laws start from the premise that you don’t have a right to keep or bear arms. Instead, you must first prove yourself worthy before you can even keep a gun in your home. In the case of North Carolina’s pistol purchase permit law the reasoning is even more absurd. There’s no permit required to purchase or possess a long gun in the home, but if you want a handgun, which is the most common firearm for self-defense, you have to get permission from local law enforcement beforehand.
Gun control activists are right to think that these laws are in danger of being struck down by the courts, but if that happens is will be cause for celebration, not concern. The average law-abiding citizen should face no government-imposed impediments, the subjective and arbitrary opinions of law enforcement, or be forced to navigate a maze of red tape in order to exercise their Second Amendment rights, and it’s long past time for these permit to purchase laws to be tossed onto the trash heap of history.