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:

Types of Carry Permit Systems (2024)
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

States That Were May-Issue Before Bruen
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:

  1. Arbitrary Denials: Similar applicants treated differently
  2. Discrimination: Wealthy/connected favored
  3. Corruption Risk: Bribery scandals in NYC, California
  4. 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

Types of 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:

  1. Text: "Bear arms" includes public carry
  2. History: No tradition of requiring special need
  3. Discretion: Made right subject to official grace
  4. 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:

Controversial New Requirements
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:

Training Hour Requirements (Shall-Issue States)
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

State Reciprocity Approaches
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/.