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Why “May-Issue” Must Fail

Wednesday, November 21, 2018

When people talk about limitations on the right to freedom of speech, they often point to the fact that you can’t yell “Fire!” in a crowded theatre. Unless there is a fire, of course.

While the right to a free press is broad, the media can be prohibited from publishing or broadcasting something that would lead to violent or illegal action.

There are countless Supreme Court rulings spanning more than two centuries that speak to these rights, and they have helped to refine and define the protections enshrined in the First Amendment.

But what about the Second Amendment?

In the 2008 landmark ruling in District of Columbia v. Heller, which struck down a handgun ban in our nation’s capital, the Supreme Court held that the fundamental right to self-defense was at the core of the Second Amendment. Two years later, in McDonald v. Chicago, the Court applied the Heller ruling to the states.

After a decade under Heller, however, our nation’s highest court has yet to take up another major case challenging the constitutionality of a law regulating firearms. This is especially problematic because activist judges in lower courts regularly ignore the findings in Heller, as well as the standards by which the majority decided that banning handguns violates the core principle of the Second Amendment — the right to self-defense.

This unacceptable stagnation of the precedent set in Heller needs to end. A case challenging the constitutionality of “may-issue” carry permits should be high on the court’s agenda.

Laws establishing a “may-issue” standard for the acquisition of permits to carry firearms are anathema to the concept of the fundamental right to self-defense. Such schemes fail to set clear standards for the issuance or denial of permits. Inevitably, they allow for arbitrary decisions made by government employees as to whether a citizen will be allowed to exercise her or his right to self-defense.

Furthermore, “may-issue” permit systems are a breeding ground for corruption. It is often said that such systems are easily navigated by the wealthy or well-connected, leaving the average citizen unable to “qualify” to exercise their right to self-defense away from home.

In fact, the New York Police Department’s gun-licensing division was, once again, rocked this year with an investigation into allegations of widespread bribery and corruption. In exchange for an approved license application, some issuing officers were said to have accepted “bribes…in just about every form — good old-fashioned cash, stuffed in envelopes, sometimes hidden in magazines; expensive liquor; luxury watches; free vacations; and even free guns.”

Of course, there have been opportunities for the Supreme Court to take up cases that hinged on a correct application of Heller, including challenges to “may-issue” regimes. Some justices have shown signs of frustration that none of these have reached their docket.

Justice Clarence Thomas has written several times in dissent when the court has chosen to not review Second Amendment cases from lower courts. His feelings of exasperation over the failure of the court to expand and expound on Heller over the last decade are clear. Similarly, he has made clear his feeling that lower courts are ignoring Heller.

Last year, Thomas was joined by Justice Neil Gorsuch in dissenting with the court’s decision to not take up a Ninth Circuit ruling that let California’s “may-issue” permit system remain in place. Their dissent described the Ninth Circuit’s opinion as “indefensible” and lamented the “distressing trend” of “the treatment of the Second Amendment as a disfavored right.”

There are, however, cases on the horizon that challenge “may-issue” permit laws that the Supreme Court could very well choose to take up. The First Circuit recently held that the restrictive “may-issue” permit schemes of Boston and Brookline (Massachusetts) did not violate the Second Amendment.

As is the case with most “may-issue” laws, Boston and Brookline require applicants for carry permits to prove a need, which is an arbitrary standard that any two people are unlikely to agree upon. Requiring a citizen to “prove” they should be “allowed” to exercise a fundamental right should be prima facie unconstitutional. In contrast, a “shall-issue” law requires the government to give a specific, clearly defined reason to deny an applicant the exercise of their constitutional right.

The plaintiffs in the Boston/Brookline case indicate they will appeal to the Supreme Court, and similar cases in other states are at various stages in the process. We hope that this case or one like it will finally give the Supreme Court the opportunity to put an end to the unconstitutional practice of allowing state and local governments to arbitrarily deny law-abiding Americans our right to bear arms for personal protection.

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Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.