Shall-Issue vs May-Issue
Concealed carry licensing systems vary from shall-issue (objective criteria) to may-issue (discretionary approval). NYSRPA v. Bruen (2022) fundamentally changed this landscape by ruling that discretionary may-issue systems violate the Second Amendment.
Overview of Licensing Systems
Four Categories of Carry Laws
States fall into four main categories for public carry:
| System Type | Description | Number of States | Constitutional Status |
|---|---|---|---|
| Constitutional Carry | No permit required for law-abiding adults | 29 states | Permitted |
| Shall-Issue | Must issue if objective criteria met | 16 states + DC | Permitted |
| May-Issue (Pre-Bruen) | Discretionary, "good cause" required | 0 states | Unconstitutional |
| No-Issue | No concealed carry permits | 0 states | Unconstitutional |
Historical Development
19th Century
Many states prohibited concealed carry entirely or required showing "good cause"
1980s-1990s
Shall-issue movement gained momentum, Florida (1987) model widely copied
2000s-2010s
Constitutional carry movement began, continued expansion of shall-issue
2022 - Bruen
Supreme Court invalidated may-issue licensing schemes
Shall-Issue Systems
Definition and Principles
Shall-issue states must grant permits to applicants who meet objective criteria:
- Objective Standards: Clear, defined requirements
- No Discretion: Officials cannot deny based on subjective judgment
- Presumption of Issuance: Default is approval if criteria met
- Burden on State: Must prove disqualification
Typical Requirements
Common Requirements
- Minimum age (usually 21)
- Residency in state
- Background check (NICS)
- Fingerprinting
- Training course
- Application fee
- Not prohibited person
Variable Requirements
- Live-fire qualification
- Mental health records check
- Character references
- Proof of competence
- Liability insurance
- Renewal periods
- Photograph requirements
Appeal Rights
Shall-issue systems typically include:
- Written denial with specific reasons
- Administrative appeal process
- Judicial review available
- Time limits for agency action
Legal Standard
"The state must issue a concealed-carry license if the applicant satisfies certain threshold requirements, without granting licensing officials discretion to deny licenses based on a perceived lack of need or suitability." — NYSRPA v. Bruen
May-Issue Systems (Historical)
How May-Issue Worked
Before Bruen, may-issue states required:
- "Good Cause"/"Proper Cause": Special need beyond general self-defense
- Discretionary Approval: Officials decided who "needed" to carry
- Burden on Applicant: Prove exceptional circumstances
- Subjective Standards: "Good moral character," "suitable person"
Former May-Issue States
| State | Standard Required | Post-Bruen Status |
|---|---|---|
| California | "Good cause" | Shall-issue (with restrictions) |
| Hawaii | "Exceptional case" | Shall-issue |
| Maryland | "Good and substantial reason" | Shall-issue |
| Massachusetts | "Proper purpose" | Shall-issue (with restrictions) |
| New Jersey | "Justifiable need" | Shall-issue (with restrictions) |
| New York | "Proper cause" | Shall-issue (with restrictions) |
Problems with May-Issue
Critics identified several issues:
- Arbitrary Denials: Similar applicants treated differently
- Discrimination: Wealthy/connected favored
- Corruption Risk: Bribery scandals in NYC, California
- Constitutional Issue: Right became privilege
"[T]he licensing officer has virtually unbridled discretion to grant or deny a concealed carry permit... This discretionary regime makes the right to armed self-defense hollow for most New Yorkers."
— Petitioners' Brief, NYSRPA v. Bruen
Constitutional Carry
Definition
Constitutional carry (also called "permitless carry") allows law-abiding adults to carry concealed without a permit:
- No License Required: For residents who can legally possess firearms
- Age Requirements: Usually 21, some states 18
- Permits Still Available: For reciprocity with other states
- Prohibited Places: Still apply regardless
Growth of Constitutional Carry
Constitutional Carry Expansion
- 2002: 2 states (Vermont, Alaska)
- 2010: 4 states
- 2015: 8 states
- 2020: 16 states
- 2024: 29 states
Variations in Constitutional Carry
| Type | Description | Examples |
|---|---|---|
| Unrestricted | No permit needed, residents and non-residents | Vermont, Wyoming |
| Residents Only | Permitless carry for state residents only | Tennessee, Montana |
| Partial | Limited to certain areas or situations | Alabama (certain locations) |
| Age-Restricted | Different ages for permitless vs. permit | Indiana (18 with permit, 21 without) |
The Bruen Decision
Core Holding
"We therefore turn to whether the plain text of the Second Amendment protects Koch's and Nash's proposed course of conduct—carrying handguns publicly for self-defense. We have little difficulty concluding that it does."
— Justice Thomas, NYSRPA v. Bruen, 597 U.S. 1, 32 (2022)
Why May-Issue Failed
The Court found may-issue unconstitutional because:
- Text: "Bear arms" includes public carry
- History: No tradition of requiring special need
- Discretion: Made right subject to official grace
- Discrimination: Favored some citizens over others
What Bruen Permits
States may still impose:
- Objective licensing requirements
- Background checks
- Mental health records checks
- Training requirements
- Fingerprinting
- Reasonable fees
- Renewal requirements
What Bruen Prohibits
States cannot:
- Require showing special need
- Grant officials unbridled discretion
- Make self-defense insufficient reason
- Create de facto bans through impossible standards
Important Distinction
Bruen doesn't require constitutional carry. States may require permits, but must issue them to qualified applicants without requiring special need.
Current State Landscape
Post-Bruen Responses
Former may-issue states responded differently:
Compliance Approach
- Removed "good cause" requirements
- Maintained other objective criteria
- Streamlined application process
- Example: Maryland
Resistance Approach
- Added new requirements
- Expanded sensitive places
- Increased training hours
- Example: New York, New Jersey
New Requirements Post-Bruen
Some states added requirements being challenged:
| Requirement | States | Legal Status |
|---|---|---|
| Social media review | New York | Challenged in court |
| Character references (4+) | New York | Partially enjoined |
| 16+ hours training | New York, California | Under litigation |
| Liability insurance | New York, New Jersey | Challenged |
| In-person interview | Several states | Generally upheld |
Permit Statistics Changes
Post-Bruen permit issuance in former may-issue states:
- Maryland: 500% increase in applications
- New Jersey: From ~1,500 to 30,000+ active permits
- Massachusetts: Significant increase in Boston area
- Hawaii: From near-zero to hundreds issued
Common Requirements
Training Requirements by State
States vary widely in training mandates:
| Hours Required | Number of States | Examples |
|---|---|---|
| None | 8 states | Pennsylvania, Georgia |
| 1-4 hours | 5 states | Michigan, South Carolina |
| 5-8 hours | 7 states | Texas, North Carolina |
| 9-16 hours | 4 states | Illinois, New Mexico |
| 16+ hours | 3 states | New York, California |
Background Check Depth
Basic NICS Check
- Federal criminal history
- Prohibited person status
- Usually instant/3-day
- Most states
Enhanced Checks
- State criminal history
- Mental health records
- Local police input
- Can take weeks/months
Fees and Costs
Total costs vary significantly:
- Low-Cost States: $10-50 (Indiana, South Dakota)
- Moderate-Cost: $50-150 (most shall-issue states)
- High-Cost: $300+ (California, Massachusetts)
- Additional Costs: Training, fingerprinting, photos
Interstate Reciprocity
How Reciprocity Works
States recognize other states' permits through:
- Formal Agreements: Negotiated reciprocity
- Statutory Recognition: Automatic if standards met
- Universal Recognition: Honor all state permits
- No Recognition: Only own state's permits
Reciprocity Patterns
| Approach | Description | Number of States |
|---|---|---|
| Universal | Recognize all state permits | ~20 states |
| Conditional | If state recognizes theirs | ~15 states |
| Selective | Only specific state agreements | ~10 states |
| None | No out-of-state recognition | ~5 states |
Constitutional Carry and Travel
Important considerations:
- Constitutional carry doesn't transfer across state lines
- Need permit for reciprocity in other states
- Must follow visited state's laws
- Duty to inform varies by state
Travel Warning
Always check current reciprocity agreements before traveling. Laws change frequently, and violations can result in serious criminal charges.
How to Cite This Page
APA: SecondAmendment.net. (2024). Shall-Issue vs May-Issue. Retrieved from https://secondamendment.net/concepts/shall-issue-may-issue/
MLA: "Shall-Issue vs May-Issue." SecondAmendment.net, 2024, secondamendment.net/concepts/shall-issue-may-issue/.
Chicago: SecondAmendment.net. "Shall-Issue vs May-Issue." Accessed [Date]. https://secondamendment.net/concepts/shall-issue-may-issue/.