May or Shall? Supreme Court Weighs the Future of Concealed Carry

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Authored by: Jackson C. Burrow

Articles Editor, American Journal of Trial Advocacy


          On November 3, 2021, the Supreme Court heard oral arguments regarding a case with massive implications for Second Amendment rights.[i]  Specifically, the right to conceal carry a firearm and what limitations states might have in restricting said right.[ii]  This issue comes from a restrictive law in New York which requires anyone wishing to possess a concealed carry permit to show “proper cause”.[iii]  Many commentators refer to states such as New York who give complete discretion to state officials to determine who qualifies for a permit on a case by case basis as “may issue” states, while “shall issue” states are required to issue permits to anyone who meets the minimum statutory requirements.[iv]  While New York’s law is at the heart of this case, a handful of other states with similar laws would be affected by a decision in favor of the challengers.[v]

            The challengers of New York’s “may issue” statute are the New York State Rifle & Pistol Association (NYSRPA) as well as Robert Nash and Brandon Koch.[vi]  Nash and Koch were both denied concealed carry permits under the law.[vii]  They challenged the law and the Court of Appeals for the 2nd Circuit affirmed the District Court for the Northern District of New York’s ruling to throw out the case.[viii]  The 2nd Circuit relied on their prior decision in Kachalsky v. County of Westchester which held that New York’s “proper cause” requirement did not violate the Second Amendment.[ix]  The Court in Kachalsky analyzed the rule under District of Columbia v. Heller[x] and found that it was not applicable to New York’s right to restrict the ability to carry handguns in public but rather only in the home.[xi]  They went on to apply heightened scrutiny and found that the law was substantially related to the state’s interest in protecting public safety.[xii]  After the 2nd Circuit’s decision, the challengers appealed to the Supreme Court which led to the Court granting certiorari.[xiii]  

NYSRPA’s Argument

          The challenger’s claim that the law is unconstitutional for two main reasons.  First, they claim that “may issue” laws are antithetical to the idea of the Second Amendment and use the Court’s prior holding in Heller to support their claim.[xiv]  Specifically, they argue that based on the decision in Heller, the right to carry a firearm outside of the home is a constitutional right and that this right “is not some extraordinary action that requires an extraordinary demonstration of need” as required by the statute.[xv]  Next, they give a historical analysis.  NYSRPA began with the fact that not only did the early American colonies allow gun possession, but some actually required it.[xvi]  They went on to give deference to the historical analysis in Heller[xvii], specifically the view of Second Amendment rights post-reconstruction which saw those rights as being critical to freed slaves ability to protect themselves.[xviii]  The challengers stated that the historical analysis given in Heller established that the Second Amendment “protects an individual right to carry firearms outside the home for purposes of self-defense.”[xix]

Supreme Court’s Issues with NYSRPA’s Argument

            Most of the justices who had issues with NYSRPA’s argument were on the benches liberal side. To begin, Justice Sotomayor challenged the historical perspective of the challengers.[xx] She began at our founding and onto present time and highlighted the multiple instances in which states had broad discretion to impose different gun restrictions as they saw fit.[xxi]  She also seemed to be persuaded by the 2nd Circuit’s opinion in Kachalsky that claimed Heller was limited to prohibitions inside of the home rather than those outside.[xxii]  Also, justices from both sides of the bench questioned what limits could be imposed to concealed carry, especially in sensitive areas such as “courthouses, schools, and airports.”[xxiii]

New York’s Argument

          The state of New York argued that while they do agree there is a right to carry a firearm outside of the home for purposes of self-defense, the right is not absolute.[xxiv]  The state began by giving their own historical analysis, stating that “from the founding era through the 20th Century, at least 20 states have at one time or another either prohibited all carrying of handguns in populous areas or limited it to those with good cause.”[xxv]  They went on to argue that New York is simply following the tradition of states regulating public carry and that other states also have “may issue” requirements similar to theirs.[xxvi]  They claimed that it also made more sense to have lower acceptance rates for permit applications to citizens in high density areas because of the availability of law enforcement and the high risk of injury if concealed carry were allowed in such areas.[xxvii]

Supreme Court’s Issues with New York’s Argument

            The court seemed to have more issues with New York’s argument, specifically the conservative justices.[xxviii]  Chief Justice Roberts stated that Heller held that the basis for the Second Amendment was the right to self-defense and that by giving preference in permits to those in rural areas rather than high-density ones, New York limited citizens ability to defend themselves in areas where violence or crime is more likely to occur.[xxix]  New York responded that there was a higher risk of gun violence in higher density areas if large amounts of people carried firearms, the Court found this argument unconvincing.[xxx]  Justice Alito argued that it made no sense for the State to limit law-abiding citizens from exercising their Second Amendment right when there were high numbers of illegal firearms on the streets of New York.[xxxi]  Justice Kavanaugh doubted the constitutionality of the State giving an individual officer the discretion to subjectively deny an application for a concealed carry permit at will.[xxxii]  Finally, Chief Justice Roberts questioned why a citizen should be required to prove they should be able to exercise a clear constitutional right.[xxxiii]

Broader Implications

            Depending on the holding in this case, “may issue” laws across the country will either be held a permissible exercise of states’ rights or an unconstitutional restriction on Second Amendment freedoms.  If the latter is held true, the eight states as well as the District of Columbia which have “may issue” laws currently in place would be required to transition to “shall issue” systems.[xxxiv]  Regardless, this decision will have massive implications for Second Amendment rights in a way that our country hasn’t seen since Heller

[i] N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, No. 20-843 (U.S. argued Nov. 3, 2021) (Ballotpedia). 

[ii] Amy Howe, In Major Second Amendment Case, Court will Review Limits on Carrying a Concealed Gun in Public, ScotusBlog, Oct. 27, 2021,

[iii] NY Penal Law § 400.00(2)(f) (“A license for a pistol or revolver, shall be issued to . . . [H]ave and carry concealed, without regard to employment or place of possession, by any person when proper cause exists for the issuance thereof.”). 

[iv] May-Issue vs. Shall-Issue Concealed Carry States, U.S. Concealed Carry Ass’n, April 20, 2019,

[v]  Guns in Public: Concealed Carry, Giffords Law Center, (last visited Feb. 4, 2022) (“[E]ight states and the District of Columbia have may issue laws.”). 

[vi] Howe, supra note 2. 

[vii] Id. 

[viii] N.Y. State Rifle & Pistol Ass’n v. Beach, 19-156-cv, (2d Cir. 2020).

[ix] 701 F.3d 81 (2d Cir. 2012). 

[x] 554 U.S. 750 (2008).

[xi] Id. at 94. 

[xii] Id. at 98. 

[xiii] Howe, supra note 2.

[xiv] 554 U.S. 750 (2008).

[xv] Bruen, supra note 1, at 5.

[xvi] Howe, supra note 2. 

[xvii] Bruen, supra note 1, at 4. 

[xviii] Howe, supra note 2. 

[xix] Bruen, supra note 1, at 4. 

[xx] Amy Howe, Majority of Court Appears Dubious of New York Gun-Control Law, but Justices Mull Narrow Ruling, ScotusBlog, Nov. 3, 2021,

[xxi] Id. 

[xxii] Bruen, supra note 1, at 19. 

[xxiii] Howe, supra note 20. 

[xxiv] Howe, supra note 2. 

[xxv] Bruen, supra note 1, at 59. 

[xxvi] Id. at note 8-17. 

[xxvii] Howe, supra note 2.  

[xxviii] Howe, supra note 20. 

[xxix] Bruen, supra note 1, at 62. 

[xxx] Id. at 65-66. 

[xxxi] Id. at 67-69. 

[xxxii] Id. at 72. 

[xxxiii] Id. at 94. 

[xxxiv] The Ball is in the Supreme Court – Implications of the NYSRPA v. Bruen Case, The Campaign to Keep Guns off Campus, Nov. 12, 2021,

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