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By: Michael Kinane, Volume 106 Staff Member


On November 3, 2021, the Supreme Court heard oral argument in New York State Rifle & Pistol Association, Inc. v. Bruen.[1] New York currently requires that applicants for conceal and carry firearm licenses show “proper cause” for the license.[2] As license issuance is left to the discretion of a licensing officer, New York is known as a “may-issue” state, along with seven other states.[3] In contrast, states that issue conceal and carry licenses to all applicants that meet requirements[4] set by law are known as “shall-issue” states.[5] The issue in NYSPRA II is whether New York’s denial of applicants seeking a conceal and carry license on self-defense grounds violates the Second Amendment.[6] Further distilled, the central inquiry is (1) whether the ability to conceal and carry a firearm is core to the Second Amendment and (2) whether the impediments imposed by New York’s “may-issue” regime—particularly the discretion of the licensing officer—turns the right in question into a privilege, which is unconstitutional.[7]

NYSRPA II is the first gun rights case heard by the Court in over a decade. In 2008, the Court held in District of Columbia v. Heller that the Second Amendment protects an individual’s right to possess a firearm unconnected with service in a militia and use that arm for traditionally lawful purposes, such as self-defense within the home.[8] This decision was followed by McDonald v. City of Chicago, where the Court held that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized by Heller into a right that the states must respect.[9]

In the simplest terms, the Court has three options for its decision in NYSPRA II. The first and least likely decision is to affirm the lower court’s decision that the New York law is constitutional. The second option is to strike down the New York law as facially unconstitutional, holding that most people[10] have an unlimited constitutional right to conceal and carry a firearm in public on self-defense grounds.[11] However, this Post advocates for the Court to pursue a third option, holding that, while “may-issue” conceal and carry laws violate the Second Amendment, “shall-issue” laws do not.


Since Heller, lower courts have adopted a two-pronged approach to Second Amendment challenges. First, courts decide if the Second Amendment applies to the instant case.[12] If so, courts often have applied intermediate scrutiny when considering whether the contested law furthers the government’s interest—such as crime control—and whether the law in question falls within the historical scope of the Second Amendment.[13] Yet even with a generally accepted test applied by circuit courts, a circuit split has developed over the issue of whether the Second Amendment protects the right to carry a gun outside the home.[14] The inquiry likely to be central to the Court’s decision is twofold. First, like its inquiry in Heller,[15] is whether the Framers held that an individual may use his weapon for self-defense in any reasonable place[16] to be equally as core to the Second Amendment as the concept of self-defense. If the answer is yes, then the second question is if New York’s regime turns the right to conceal and carry into a privilege.


Even courts that have held “may-issue” regimes constitutional have stated that the Second Amendment rights conferred by Heller likely apply beyond the boundaries of the home.[17] The relevant history reviewed by lower courts,[18] the parties in NYSPRA II, and amici is murky. However, there is evidence that at the time of the Founding, it was a well understood right that free Protestant adults could bear arms to defend themselves outside the home against Native Americans, European invaders, and other individuals.[19] Beyond the inquiry into whether pre-independence law banned conceal and carry, the rationale behind such laws is also unsettled. While defendants here concede that one is more likely to get a conceal and carry license if she lives in rural New York instead of a city, they claim that such a practice is consistent with historical regulation that banned guns in marketplaces because nearby law enforcement and other people are a sufficient deterrent to attack, minimizing any self-defense need.[20] However, the conservative justices were skeptical of this rationale, with Chief Justice Roberts asking, “[H]ow many muggings take place in the forest?” demonstrating the non-sensical nature of New York’s regime.[21] Given the historical and practical tying of conceal and carry to self-defense, conceal and carry of a firearm is core to the Second Amendment.

So why are “may-issue” regimes unconstitutional but “shall-issue” regimes are not? The parties do not dispute that Heller permits states to limit the exercise of the Second Amendment. The determinative issue is the inconsistency of applying such limits not only across the states but within cities and counties. This inconsistency is derived from the discretion given to licensing officers.[22] Noted by Justice Sotomayor, there are no constitutional rights conditioned on permitting different jurisdictions to pass different regulations.[23] There is no scenario where inconsistent use of discretion on one’s Second Amendment right is constitutional, so on their face, “may-issue” laws are categorically unconstitutional. Yet, because of the lack of individual discretion, “shall-issue” regimes are constitutional under Heller.

All is not lost for advocates of stricter gun laws. Most “may-issue” states will likely be able to transition to “shall-issue” regimes.[24] Further, such states will likely be able to follow the District of Columbia in adding a myriad of objective requirements by statute to receive a conceal and carry permit.[25] Such action by former “may-issue” states after the NYSPRA II decision is sure to invite constitutional challenges. But as it stands, the implementation of an onerous “shall-issue” regime by statute would likely not be at risk of being found unconstitutional for several years.


It is inappropriate to approach any discussion on the NYSPRA II decision with blinders to current events. George Floyd’s murder and the COVID-19 pandemic are associated with a significant spike in gun sales.[26] The year 2020 was one of the deadliest gun violence years, and 2021 is on pace to be worse.[27] The January 6, 2021 insurrection highlights that there are dangerous and armed factions in the United States that view their illegal actions as resistance against tyranny.[28] These facts are tragic. But the silver lining may be that they provide the Court the necessary grounds to reject the NYSPRA II petitioner’s request for broad relief and instead issue a moderate—and manageable—expansion of constitutional gun rights, as advocated by this Post.


[1] N.Y. State Rifle & Pistol Ass’n v. Beach, 818 Fed. App’x 99 (2d Cir. 2020), cert. granted, N.Y. State Rifle & Pistol Ass’n v. Bruen, 141 S. Ct. 2566 (U.S. Apr. 26, 2021) (No. 20-843). This case is also known as NYSRPA II, to distinguish it from N.Y. State Rifle & Pistol Ass’n, Inc. v. City of N.Y., 140 S.Ct. 1525 (2020).

[2] N.Y. Penal Law § 400.00(2)(f). New York courts have interpreted this statute to require that “applicant[s] must demonstrate a special need for self-protection distinguishable from that of the general community to satisfy the proper cause standard.” N.Y. State Rifle & Pistol Ass’n, Inc. v. Beach, 354 F. Supp. 3d 143, 146 (N.D.N.Y. 2018), aff’d, 818 F. App’x 99 (2d Cir. 2020) (quotations and citation omitted).

[3] California, Delaware, Hawaii, Maryland, Massachusetts, New Jersey, and Rhode Island have similar laws. Adam Liptak, Supreme Court to Hear Case on Carrying Guns in Public, N.Y. Times (Apr. 26, 2021),[].

[4] For example, in Minnesota, a “shall-issue” state, an applicant must be twenty-one years old, complete a training class, must not be in a gang database, and must not be prohibited from firearm possession by a state or federal court order. Permit to Carry FAQ, Bureau of Crim. Apprehension, []. These are typical “shall-issue” state requirements.

[5] 43 states have a “shall-issue” regime or no regulation on open/concealed carry. Liptak, supra note 3.

[6] N.Y. State Rifle & Pistol Ass’n, Inc. v. Corlett, 141 S. Ct. 2566 (2021).

[7] Transcript of Oral Argument at 121, N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, No. 20-843, ___ U. S. ___ (20__).

[8] 554 U.S. 570, 628 (2008). However, it should be noted that the Court expressly stated that an individual’s Second Amendment right was not unlimited. Id. at 595. The Court recognized a non-exhaustive list of historical and acceptable Second Amendment limitations, including: (1) when an individual is a felon; (2) when an individual is mentally ill; (3) prohibiting carrying firearms into “sensitive places such as schools and government buildings”; (4) imposing conditions and qualifications on the commercial sale of arms; and (5) prohibiting the possession of weapons that are not in common use. Id. at 626­–28.

[9] 561 U.S. 742, 791 (2010).

[10] The Court has repeatedly recognized that government limitations on firearm possession by people like convicted felons or those declared mentally unfit are constitutional. See Heller, 554 U.S. at 626–28.

[11] See James Bishop, Note, Hidden or on the Hip: The Right(s) to Carry After Heller, 97 Cornell L. Rev. 907, 910 (2012).

[12] See Sarah Herman Peck, Post-Heller Second Amendment Jurisprudence, Cong. Rsch. Serv. 25 (2019), [].

[13] Id.

[14] The First, Second, Third, Fourth, and Ninth Circuits have held constitutional good cause requirements for the public carry of concealed firearms. See Hightower v. City of Boston, 693 F.3d 61 (1st Cir. 2012); N.Y. State Rifle & Pistol Ass’n, Inc. v. Beach, 818 F. App’x 99, 100 (2d Cir. 2020); Drake v. Filko, 724 F.3d 426 (3d Cir. 2013); Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013); Young v. Hawaii, 992 F.3d 765 (9th Cir. 2021). However, the D.C. Circuit has struck down good cause requirements. See Wrenn v. District of Columbia, 864 F.3d 650 (D.C. Cir. 2017). Prior to Wrenn, the Seventh Circuit struck down a broad ban on carrying firearms in public. See Moore v. Madigan, 702 F.3d 933, 935–36 (7th Cir. 2012). Contra Peruta v. Cnty. of San Diego, 824 F.3d 919, 937–39 (9th Cir. 2016) (en banc).

[15] Heller, 554 U.S. at 628.

[16] The Court is likely to not overrule Second Amendment limitations regarding “sensitive places.” Id. at 626. Commentators have suggested that given the questioning at oral argument, the NYSPRA II decision may also provide guidance on how to determine a sensitive place if one has a right to conceal and carry. A Case that Could Transform America’s Relationship with Guns, The Daily, N.Y. Times, 26:03 (Nov. 8, 2021), [].

[17] Filko, 724 F.3d at 430.

[18] See the reliance on the 1328 Statute of Northampton for upholding a “may-issue” regime in Peruta, 824 F.3d at 929–33.

[19] Ryan Notarangelo, Note, Carrying the Second Amendment Outside of the Home: A Critique of the Third Circuit’s Decision in Drake v. Filko, 64 Cath. U. L. Rev. 235, 241–43 (2014).

[20] Transcript of Oral Argument at 63–64, N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, No. 20-843, ___ U. S. ___ (20__).

[21] Id. at 65. Justice Alito also was skeptical, shown by his hypothetical of the nurse walking home through a high crime area of New York City. Id. at 67–68.

[22] Defendants claim local discretion to be a feature of its regime. Transcript of Oral Argument at 75–76, N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, No. 20-843, ___ U. S. ___ (20__). But it is clearly a bug.

[23] Id. at 76–77.

[24] Jack M. Amaro, Note, “Good Reason” Laws Under the Gun: May-Issue States and the Right to Bear Arms, 94 Chi.-Kent L. Rev. 27, 48 (2019).

[25] Id.

[26] Chris Arnold, Pandemic and Protests Spark Record Gun Sales, NPR (July 16, 2020), [] (claiming that three million more guns than expected were sold in 2020).

[27] Reis Thebault, Joe Fox & Andrew Ba Tran, 2020 Was the Deadliest Gun Violence Year in Decades. So Far, 2021 Is Worse, Wash. Post (June 14, 2021), [].

[28] See Luke Mogelson, Among the Insurrectionists, New Yorker (Jan. 15, 2021), [].