In the wake of the Bruen decision, in which the Supreme Court blessed “shall issue” license to carry regimes, several blue states have adopted laws requiring a permit to simply purchase and possess a firearm.
Delaware is one of them, and the Third Circuit Court of Appeals is currently considering a legal challenge to the requirement after U.S. District Judge Maryellen Noreika denied a request by the plaintiffs for expedited injunctive relief. This week the attorneys general of New Jersey, D.C., California, Colorado, Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, Nevada, New York, Oregon, Rhode Island, Vermont, Virginia, and Washington filed an amicus brief in support of the Delaware law, arguing that shall-issue licensing laws are “facially consistent with the Second Amendment.”
Both logic and the Supreme Court’s decision in Bruen provide the roadmap for distinguishing between non-infringing shall-issue licensing regimes and impermissible measures. In Bruen, the Court struck down a New York law which empowered licensing authorities to assess whether a citizen “demonstrate[d] a special need for self-defense,” then a necessary prerequisite for obtaining a New York permit.
… the only inconvenience any otherwise law-abiding citizen could expect from a shall-issue regime itself is paperwork and a period between application and permit issuance. Accordingly, the shall-issue regime does not infringe the right because it is only the application-and-review process by which the State assesses each individual’s compliance with statutory disabilities, permitting law-abiding citizens to have weapons but keeping them away from dangerous ones. There is no infringement on any right, just a delay in its exercise to ensure that dangerous people do not possess firearms. So shall-issue regimes “do not necessarily prevent” the “exercise[]” of the“Second Amendment right to public carry”; they merely confirm that the individuals obtaining firearms are the types of “law-abiding, responsible citizens” that enjoy Second Amendment protections.
The Supreme Court held that “shall issue” licensing regimes for carrying a firearm were presumptively constitutional. It said nothing about licensing regimes for possessing a firearm in the home. Even assuming for the sake of argument that Bruen blesses “shall issue” licensing schemes for keeping arms, though, is Delaware’s permit-to-purchase law really “shall issue” given that police can deny a permit to someone based on a subjective determination that a person “poses a danger of causing physical injury to self orothers by owning, purchasing, or possessing firearms”?
The anti-gun AGs say “yes.”
As to this law, the challengers ignore the express demand that any finding of dangerousness must, under the statute, be “supported by probable cause,” a determination that is thensubject to judicial review. And more generally, the challengers overlook that Bruen further explained that “a ‘suitable person’” standard [that] precludes permits only to those “individuals whose conduct has shown them to be lacking the essential character of temperament necessary to be entrusted with a weapon” is not impermissibly discretionary.
That’s not at all what the Supreme Court said in Bruen. It noted that only a handful of “shall issue” states had language about suitability, but that even with that language the law essentially functioned as a non-discretionary “shall issue” system. The reference to “individuals whose conduct has shown them to be lacking the essential character of temperament necessary to be entrusted with a weapon” comes from Connecticut’s law, which wasn’t challenged in Bruen. And while the Court may not have said that Connecticut’s “suitability” language violates the Constitution, it also did not subject that statute to the text, history, and tradition test laid out by the Court in Bruen.
The anti-gun attorneys general then caution the Third Circuit not to upset the applecart by finding Delaware’s permit-to-purchase scheme a violation of the Second Amendment.
Since Bruen, no court has held that a shall-issue regime is facially unconstitutional. A contrary ruling here would be startling, creating a circuit split and unsettling stable law. And it could call into question the various shall-issue permitting laws across the country, imperiling the Amici’s historically broad authority to protect their citizens from danger. That is true especially in the Third Circuit, where each State has a shall-issue regime. And certainly for Delaware, holding that its shall-issue regime is facially unconstitutional may well lead to a rise in lethal violence perpetrated by those who have historically been disarmed or do not understand how to safely operate a firearm.
Historically? The state’s permit-to-purchase scheme has been in place for less than a year.
The attorneys general are clearing trying to lump in a permit-to-carry with a permit-to-purchase, suggesting that if Delaware’s permit-to-purchase law fails so too must its “shall issue” license to carry. The Supreme Court, though, made it clear that it was blessing “shall issue” licensing regimes for public carry, not for private possession in the home.
Admittedly, the Court didn’t do gun owners any favor by casually dismissing the “suitability’ language found in a handful of ostensibly “shall issue” licensing regimes; language the gun control lobby is using to its full advantage in states like Delaware. The Third Circuit Court of Appeals, though, has the change to undo some of that damage by granting the plaintiffs’ request for an injunction and determining the permit-to-purchase law is indeed a violation of our right to keep arms.
Editor’s Note: The radical Left will stop at nothing to enact their radical gun control agenda and strip us of our Second Amendment rights.
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