The Constitutional Incongruity of 'May-Issue' Concealed Carry Permit Laws

Abstract

In 2019, 15,668 Americans were killed by guns. Given this epidemic of gun violence, it is no surprise when legislatures enact gun control measures; in fact, they should be applauded for doing so. However, the right to keep and bear arms is a fundamental constitutional right protected by the Second Amendment. While the precise scope of this right is unclear, it appears to include at least some right to carry guns outside of the home. States have three categories of licensing schemes for those who wish to carry guns in public. In unrestricted or “constitutional carry” jurisdictions, citizens of the state do not need any license to carry. In shall-issue jurisdictions, citizens are required to have a permit, but the permitting entity has no discretion; provided that the applicant meets certain requirements, the government must issue the permit. In may-issue jurisdictions, the permitting entity has discretion as to whether to issue the permit, even if the applicant meets all the conditions. Most may-issue jurisdictions require applicants to prove that they have a good reason for wanting to carry a gun, such as a compelling need for self-defense. Even when they do not have this requirement, they give the permitting authority discretion as to whether to issue the license. I argue in this Article that may-issue laws are unconstitutional. I examine four other fundamental constitutional rights: the rights to free speech, free exercise of religion, freedom from unreasonable searches and seizures, and obtain access to an abortion. While the government may constitutionally limit each of these rights, it may not do so based on the subjective decisions of government officials, and certainly not based on the otherwise-lawful exercise of that right. Therefore, I argue, if the right to carry a gun outside the home is protected by the Second Amendment, then laws that require citizens to prove a good reason for needing to exercise that right are unconstitutional.