Contributions

Permitting Around the Constitution: Gun License Process After Heller

by Deepa Devanathan1

In 2008, the Unit­ed States Supreme Court held that the right of law-abid­ing, respon­si­ble cit­i­zens to use arms in defense of hearth and home is at the core of the Sec­ond Amend­ment.2 Two years lat­er, the Court extend­ed the Sec­ond Amend­ment right to bear arms in self-defense of hearth and home to the states.3 Since then, there has been a flur­ry of lit­i­ga­tion at the fed­er­al dis­trict court and cir­cuit court lev­els over whether state per­mit schemes that require cit­i­zens to receive a per­mit before being able to car­ry a gun in pub­lic are con­sti­tu­tion­al.4 After a few years of lit­i­ga­tion, the ques­tion has become when a pub­lic car­ry per­mit scheme is con­sti­tu­tion­al and when it is uncon­sti­tu­tion­al.

Find­ing the line between con­sti­tu­tion­al and uncon­sti­tu­tion­al in the realm of pub­lic car­ry per­mit schemes is essen­tial to ensur­ing that states respect Sec­ond Amend­ment rights while pre­vent­ing gun vio­lence, an issue that has plagued our coun­try since the 20th cen­tu­ry. Mass shoot­ings have only become more preva­lent and dan­ger­ous, and states are des­per­ate for clear con­sti­tu­tion­al rules as to where, how, and when they can reg­u­late gun pos­ses­sion.5 How­ev­er, based on the cir­cuit court rul­ings on pub­lic car­ry per­mit schemes, those con­sti­tu­tion­al rules are not clear.6

This Con­tri­bu­tion argues that to prop­er­ly bal­ance Sec­ond Amend­ment rights with a State’s need to pro­tect peo­ple from gun vio­lence, gun per­mit schemes that cov­er both open car­ry and con­cealed car­ry must include a pro­ce­dur­al right to appeal a local official’s deci­sion deny­ing a per­mit and must include a “good cause”7 require­ment that is writ­ten with suf­fi­cient clar­i­ty so as to ensure that per­mits actu­al­ly reach those who need them.

* * * * *

The Sec­ond Amend­ment pro­vides: “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.”8 The Supreme Court held that the lan­guage of the Amend­ment con­fers not mere­ly a col­lec­tive right, but guar­an­tees “the indi­vid­ual right to pos­sess and car­ry weapons in case of con­fronta­tion.”9

The Sec­ond, Third, Fourth, and Ninth Cir­cuits all looked at pub­lic car­ry per­mit schemes and found them to be con­sti­tu­tion­al.10 How­ev­er, those per­mit schemes all had “good cause” require­ments, i.e. require­ments that ask appli­cants to show a good rea­son for their need to car­ry a gun in pub­lic, and addi­tion­al checks on local dis­cre­tion to con­fer per­mits, such as a right to appeal.11 By com­par­i­son, the D.C. Cir­cuit and the Sev­enth Cir­cuit looked at pub­lic car­ry per­mit schemes and found them to be uncon­sti­tu­tion­al because they essen­tial­ly banned peo­ple from bear­ing arms in pub­lic for self-defense.12

* * * * *

To find clear con­sti­tu­tion­al rules on pub­lic car­ry, there must first be the right to gun pos­ses­sion of this kind in the text of the Con­sti­tu­tion. The Supreme Court’s deci­sion in Dis­trict of Colum­bia v. Heller directs con­sid­er­a­tion of “both text and his­to­ry” when inter­pret­ing the Sec­ond Amend­ment, bear­ing in mind that “con­sti­tu­tion­al rights are enshrined with the scope that they were under­stood to have when the peo­ple adopt­ed them.”13

The text and his­tor­i­cal under­stand­ing of the Sec­ond Amend­ment both point to a core right to bear arms in pub­lic for self-defense. The Sec­ond Amendment’s inclu­sion of the right to “bear” as well as “keep” arms indi­cates that the right to bear arms extends out­side of the home for self-defense. The Court, through Jus­tice Scalia, has held that at the time of the found­ing, and now, the term “bear” mans to “car­ry.”14 Notably, Jus­tice Gins­burg shares this under­stand­ing of the mean­ing of “bear”: to “‘wear, bear, or car­ry … upon the per­son or in the cloth­ing or in a pock­et, for the pur­pose … of being armed and ready for offen­sive or defen­sive action in a case of con­flict with anoth­er per­son.”15 When Jus­tice Scalia and Jus­tice Gins­burg agree on the tex­tu­al and his­tor­i­cal mean­ing of the Sec­ond Amend­ment, we are wise to pay atten­tion.

There is a rebut­table pre­sump­tion that every clause and term in the Con­sti­tu­tion has mean­ing: “It can­not be pre­sumed that any clause in the con­sti­tu­tion is intend­ed to be with­out effect; and there­fore such con­struc­tion is inad­mis­si­ble, unless the words require it.”16 If there is already a pro­vi­sion to “keep” arms that applies to cas­es of self-defense in the house, then the term “bear” has no mean­ing in the house because it is redun­dant and an awk­ward fit; peo­ple “keep” guns in the house but they typ­i­cal­ly do not “car­ry” them.17 There­fore, the pro­vi­sion pro­vid­ing a right to “bear” arms must apply out­side of the house where peo­ple can­not “keep” guns but must, instead, “bear” guns for self-defense.

As the Sev­enth Cir­cuit held, a right to keep and bear arms for per­son­al self-defense in the eigh­teenth cen­tu­ry could not ratio­nal­ly have been lim­it­ed to the home.18 When the Con­sti­tu­tion was writ­ten, even peo­ple who feared harm would have to leave their hous­es and would have to rely on a right to bear arms in pub­lic for self-defense to pro­tect them­selves.19 This mobil­i­ty is as preva­lent if not more preva­lent today. With the growth of infra­struc­ture and meth­ods of trans­porta­tion, Amer­i­cans are more and more often not in their hous­es, indi­cat­ing that the neces­si­ty of extend­ing Sec­ond Amend­ment pro­tec­tions for using arms in self-defense to the pub­lic sphere.

Sen­si­bly, then, sev­er­al courts have read the Sec­ond Amend­ment as bestow­ing a right to bear arms in pub­lic for self-defense. After a thor­ough tex­tu­al and his­tor­i­cal analy­sis, the Ninth Cir­cuit con­clud­ed that car­ry­ing a gun out­side the home for self-defense comes with­in the mean­ing of “bear[ing] Arms.”20 Addi­tion­al­ly, cir­cuit courts have held that the Sec­ond Amend­ment does pro­tect, to some degree, the right to car­ry arms in pub­lic for self-defense.21

Author­i­ty all thus points to the con­clu­sion that the Sec­ond Amend­ment right must extend out­side the home. The only ques­tion, then, is the extent to which state actors can lim­it that right, and under what con­di­tions they can do so.

* * * * *

Reg­u­la­tions on the Sec­ond Amend­ment right to car­ry guns in pub­lic for self-defense can be con­sti­tu­tion­al if they do not sub­stan­tial­ly bur­den people’s Sec­ond Amend­ment rights and thus pass con­sti­tu­tion­al scruti­ny.22 If a state per­mit­ting law is to meet this stan­dard, it can­not con­di­tion the issuance of con­cealed car­ry and open car­ry per­mits on applicant’s show­ing of some­thing as broad as, say, a “unique, com­pelling, and jus­ti­fi­able need” with no right to appeal of a denial of a per­mit. Oth­er­wise, the local official’s deci­sion could effec­tive­ly amount to a total ban, or close to it, and thus not sur­vive inter­me­di­ate or strict scruti­ny.

First, a per­mit scheme that cov­ers con­cealed car­ry and open car­ry, that requires peo­ple to prove a “unique, com­pelling, and jus­ti­fi­able need,” and that does not con­tain a right to appeal is uncon­sti­tu­tion­al because it amounts to a total ban on people’s rights to car­ry guns in pub­lic for self-defense. In Heller, the Court held that if a law total­ly destroys a right, then it is uncon­sti­tu­tion­al per se, and courts do not have to engage in bal­anc­ing of inter­ests.23 Requir­ing peo­ple to prove a “unique, com­pelling, and jus­ti­fi­able need” nec­es­sar­i­ly requires peo­ple to prove that they have a need that is dif­fer­ent from those of ordi­nary cit­i­zens. The per­mit­ting scheme, thus, is premised on the incor­rect assump­tion that ordi­nary cit­i­zens may be pre­vent­ed from exer­cis­ing their con­sti­tu­tion­al right to bear arms in pub­lic for self-defense until they receive a state’s per­mis­sion to do so.24 Such a premise flies in the face of the entire pur­pose of the indi­vid­ual rights that the Con­sti­tu­tion pro­tects: they are the rights to act with­out gov­ern­ment inter­ven­tion, not rights to take action only with the government’s per­mis­sion.

Fur­ther, con­di­tion­ing per­mit­ting on a stan­dard too ambigu­ous­ly stat­ed is func­tion­al­ly equiv­a­lent to a total ban. If the state per­mit­ting stan­dard requires “unique, com­pelling, and jus­ti­fi­able need” before some­one can obtain per­mis­sion to car­ry a firearm in pub­lic, that is tan­ta­mount to a non-def­i­n­i­tion. Sim­ply put, it’s over­broad: the gov­ern­ment actor deter­min­ing whether to issue a per­mit would essen­tial­ly be free to do as he wished. The Court has often held uncon­sti­tu­tion­al vague laws on the grounds that they are sus­cep­ti­ble to arbi­trary enforce­ment.25 A poten­tial rem­e­dy for this would be to include a right to appeal, as is the case in oth­er per­mit schemes such as New York’s per­mit scheme.26 The New York Penal Law at issue in Kachal­sky allows for appeals of a per­mit appli­ca­tion denial to a state court.27

Sec­ond, assum­ing arguen­do that such a per­mit scheme is not a total ban, it is uncon­sti­tu­tion­al because it still could not pass inter­me­di­ate scruti­ny. For any restric­tion on the right to car­ry arms to pass con­sti­tu­tion­al muster, it must be sub­stan­tial­ly relat­ed to the achieve­ment of an impor­tant gov­ern­men­tal inter­est.28 Indeed, the Supreme Court has rec­og­nized that the Gov­ern­ment has a substantial—and even compelling—interest in pub­lic safe­ty and crime pre­ven­tion.29

Although there is an impor­tant state inter­est in pro­tect­ing pub­lic safe­ty, an over­ly restric­tive per­mit scheme is not sub­stan­tial­ly relat­ed to that impor­tant gov­ern­men­tal inter­est because it is not a rea­son­able fit. Such a per­mit scheme is under­in­clu­sive because it fails to allow cit­i­zens who need firearms for their own safe­ty to car­ry them, and it is over­in­clu­sive because of the high show­ing it requires; prov­ing a unique, com­pelling, and jus­ti­fi­able need, mak­ing appli­cants prove that they are the only ones who have a need for self-defense. Such a task is near­ly impos­si­ble. Addi­tion­al­ly, the dif­fi­cult stan­dard may lead to people’s resort­ing to ille­gal means to obtain guns, which would only increase vio­lence and injure pub­lic safe­ty.30 The nar­row­ness of the per­mit scheme makes the per­mit scheme an unrea­son­able and pos­si­bly coun­ter­pro­duc­tive means to an impor­tant end.

Third, such a per­mit scheme is uncon­sti­tu­tion­al because it does not pass strict scruti­ny. If the per­mit scheme does not pass inter­me­di­ate scruti­ny it can­not pass strict scruti­ny.31 How­ev­er, even if the per­mit scheme pass­es inter­me­di­ate scruti­ny, it does not pass strict scruti­ny because it is not nar­row­ly tai­lored to the com­pelling pub­lic inter­est. The stan­dard of “unique, com­pelling, and jus­ti­fi­able” is dis­pos­i­tive of the per­mit scheme’s fail­ing strict scruti­ny because such a stan­dard is too vague to be nar­row­ly tai­lored to curb­ing gun vio­lence. If the gov­ern­ment inter­est is in curb­ing gun vio­lence and keep­ing peo­ple safe, then the stan­dard that the gov­ern­ment uses to allow res­i­dents to car­ry guns has to be spe­cif­ic enough to include those who have a legit­i­mate inter­est in self-defense and to exclude those who do not.

* * * * *

Per­mit schemes that cov­er both open car­ry and con­cealed car­ry but that do not include a right to appeal or a clear, reach­able stan­dard are uncon­sti­tu­tion­al because they amount to a total ban on the right to car­ry guns in pub­lic for self-defense. Even if they are not deemed to go so far, they don’t pass strict or inter­me­di­ate scruti­ny. Gun vio­lence absolute­ly must be curbed. How­ev­er, uncon­sti­tu­tion­al per­mit schemes not only fail to curb gun vio­lence, but they fail while in turn doing vio­lence to rights enshrined in the Con­sti­tu­tion.


Notes:

1. Deepa Devanathan is a 2L at New York Uni­ver­si­ty School of Law.  This Con­tri­bu­tion is a com­men­tary on the 2018 Evans A. Evans Con­sti­tu­tion­al Law Moot Court Com­pe­ti­tion host­ed by the Uni­ver­si­ty of Wis­con­sin Moot Court Board. The views expressed in this arti­cle do not nec­es­sar­i­ly rep­re­sent the views of the author on this point of law. Rather, this arti­cle is a dis­til­la­tion of one side of an argu­ment assigned to the author at the 2018 Evan A. Evans Con­sti­tu­tion­al Law Moot Court Com­pe­ti­tion.
2. Dis­trict of Colum­bia v. Heller, 554 U.S. 570, 592 (2008).
3. McDon­ald v. City of Chica­go, 561 U.S. 742, 767 (2010).
4. See, e.g., Kachal­sky v. Coun­ty of Westch­ester, 701 F.3d 81, 88 n.8 (2nd Cir. 2012); Drake v. Filko, 724 F.3d 426, 431 (3d Cir. 2013); Wool­lard v. Gal­lagher, 712 F.3d 865 (4th Cir. 2013); Peruta v. Coun­ty of San Diego, 742 F.3d 1144 (9th Cir. 2014), rev’d en banc, 824 F.3d 919 (9th Cir. 2016).
5. Cur­rent sta­tis­tics show that on aver­age 318 peo­ple in Amer­i­ca are shot every day and that 96 peo­ple in Amer­i­ca die every day from gun vio­lence. Brady Cam­paign to Pre­vent Gun Vio­lence, Key Gun Vio­lence Sta­tis­tics, http://www.bradycampaign.org/key-gun-violence-statistics (last vis­it­ed April 10, 2018).
6. See infra.
7. A “good cause” require­ment is one that requires appli­cants to prove that they have a good rea­son to have a gun for self-defense in pub­lic.
8. U.S. Con­st. amend. II.
9. Dis­trict of Colum­bia v. Heller, 554 U.S. 570, 592 (2008).
10. See Kachal­sky v. Coun­ty of Westch­ester, 701 F.3d 81, 88 n.8 (2nd Cir. 2012); Drake v. Filko, 724 F.3d 426, 431 (3d Cir. 2013); Wool­lard v. Gal­lagher, 712 F.3d 865, 868–69 (4th Cir. 2013); Peruta v. Coun­ty of San Diego, 742 F.3d 1144, 1149 (9th Cir. 2014), rev’d en banc, 824 F.3d 919 (9th Cir. 2016).
11. See id.
12. See Wrenn v. Dis­trict of Colum­bia, 864 F.3d 650, 667 (D.C. Cir. 2017); Moore v. Madi­gan, 702 F.3d 933, 942 (7th Cir. 2012).
13. Heller, 554 U.S. at 595.
14. Id. at 584.
15. Mus­carel­lo v. Unit­ed States, 524 U.S. 125, 143 (1998) (Gins­burg, J., dis­sent­ing) (quot­ing Black’s Law Dic­tio­nary 214 (6th ed. 1998)).
16. Mar­bury v. Madi­son, 5 U.S. (1 Cranch) 137, 174 (1803).
17. See Moore, 702 F.3d at 936.
18. Id.
19. Id.
20. See Peruta v. Coun­ty of San Diego, 742 F.3d 1144, 1167 (9th Cir. 2014), rev’d en banc, 824 F.3d 919 (9th Cir. 2016).
21. See, e.g., Drake v. Filko, 724 F.3d 426, 431 (3d Cir. 2013) (not­ing that the Sec­ond Amend­ment “may have some appli­ca­tion beyond the home.” (empha­sis in orig­i­nal)); Wool­lard v. Gal­lagher, 712 F.3d 865, 876 (4th Cir. 2013) (“We … assume that the Heller right exists out­side of the home …”).
22. See Heller v. Dis­trict of Colum­bia (Heller II), 670 F.3d 1244, 1252 (D.C. Cir. 2011); see, e.g., Unit­ed States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013); Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alco­hol, Tobac­co, Firearms, & Explo­sives, 700 F.3d 185, 194 (5th Cir. 2012) (“A two-step inquiry has emerged as the pre­vail­ing approach”); Unit­ed States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012);  Ezell v. City of Chica­go, 651 F.3d 684, 701–04 (7th Cir. 2011); Unit­ed States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010); Unit­ed States v. Reese, 627 F.3d 792, 800–01 (10th Cir. 2010); Unit­ed States v. Marz­zarel­la, 614 F.3d 85, 89 (3d Cir. 2010).
23. See Dis­trict of Colum­bia v. Heller, 554 U.S. 570, 679 (2008) (“The District’s total ban on hand­gun pos­ses­sion in the home amounts to a pro­hi­bi­tion on an entire class of “arms” that Amer­i­cans over­whelm­ing­ly choose for the law­ful pur­pose of self-defense. Under any of the stan­dards of scruti­ny the Court has applied to enu­mer­at­ed con­sti­tu­tion­al rights, this prohibition–in the place where the impor­tance of the law­ful defense of self, fam­i­ly, and prop­er­ty is most acute–would fail con­sti­tu­tion­al muster.”).
24. See Wrenn v. Dis­trict of Colum­bia, 864 F.3d 650, 666 (D.C. Cir. 2017) (“the good-rea­son law is nec­es­sar­i­ly a total ban on most D.C. res­i­dents’ right to car­ry a gun in the face of ordi­nary self-defense needs, where these res­i­dents are no more dan­ger­ous with a gun than the next law-abid­ing cit­i­zen.”).
25. See, e.g., Kolen­der v. Law­son, 461 U.S. 352, 355 (1983).
26. See Kachal­sky v. Coun­ty of Westch­ester, 701 F.3d 81, 88 n.8 (2nd Cir. 2012).
27. See id.; In re Kaplan v. Brat­ton, 249 A.D.2d 199, 201 (1998) (describ­ing judi­cial review of an admin­is­tra­tive deter­mi­na­tion under NY Penal Law Sec­tion 400.00(2)(f) and apply­ing an arbi­trary and capri­cious stan­dard).
28. See Kachal­sky, 701 F.3d at 96–97; Unit­ed States v. Mas­cian­daro, 638 F.3d 458, 471 (2d Cir. 2011); Unit­ed States v. Skoien, 614 F.3d 638, 641–42 (7th Cir. 2010).
29. See Schenck v. Pro-Choice Net­work, 519 U.S. 357, 376 (1997) (“gov­ern­men­tal inter­ests … may include an inter­est in pub­lic safe­ty and order”); Schall v. Mar­tin, 467 U.S. 253, 264 (1984); Hodel v. Va. Sur­face Min­ing & Recla­ma­tion Ass’n, 452 U.S. 264, 300 (1981) (“Pro­tec­tion of the health and safe­ty of the pub­lic is a para­mount gov­ern­men­tal inter­est”).
30. Empir­i­cal research shows that most crim­i­nals who use firearms do not get their guns from legal sources.  See gen­er­al­ly Philip J. Cook et al., Sources of Guns to Dan­ger­ous Peo­ple: What We Learn by Ask­ing Them, 79 Pre­ven­ta­tive Med­i­cine 28 (2015).  A “unique, com­pelling, and jus­ti­fi­able need” require­ment will thus have lit­tle impact to no impact in mak­ing sure guns are kept out of the hands of those who should not have them.
31. See, e.g., Plyler v Doe, 457 U.S. 202, 216–17 (1982).