A SCOTUS petition argues that the Second Amendment requires carry-permit reciprocity

Four years ago in New York State Rifle & Pistol Association v. Bruen, the Supreme Court said the Second Amendment precludes states from requiring that people demonstrate a “special need” before they are allowed to carry handguns in public for self-defense. But it added that “nothing in our analysis should be interpreted to suggest the unconstitutionality” of licensing regimes “designed to ensure only that those bearing arms in the jurisdiction are, in fact, ‘law-abiding, responsible citizens.'”

Two pending cases raise interesting questions about the constraints that Bruen imposes on state carry-permit policies. In Johnson v. Jacobson, a long-haul trucker with carry permits issued by Florida and Georgia is asking the Supreme Court to reject Minnesota’s insistence that he also obtain a license from that state if he wants to bear arms there. And in Pratt v. Westbrook, an unsuccessful carry permit applicant is asking the Supreme Judicial Court of Massachusetts to hold that the state’s “suitability” requirement violates the Second Amendment.

Jeffrey Johnson, who is represented by the Liberty Justice Center (LJC), hauls cargo “across the United States and makes regular, annual trips to or through Minnesota,” according to the Supreme Court petition he filed on Tuesday. “Because of the dangers posed to long-haul truck drivers, Johnson always carries a handgun with him for self-defense. But when he travels to Minnesota, state law requires him to unload his weapon and secure it in a container because Minnesota does not grant firearm license reciprocity to fifteen states, including Florida and Georgia.”

That situation, the LJC argues, is inconsistent with the Second Amendment. “Once a person proves he is a law-abiding citizen, he is entitled to carry a gun in public for self-defense,” says LJC Senior Counsel Ryan Morrison. “Constitutional rights, the Second Amendment included, do not require someone to prove their worthiness to exercise their civil liberties over and over again. Forcing someone to carry a Rolodex of firearm licenses to maintain his constitutional rights across the nation reduces the Second Amendment to second-class status and subjects it to an entirely different body of rules than the other rights secured by the Constitution.”

Florida and Georgia both allow legal gun owners to publicly carry firearms without a license. But they issue carry permits to people who want to bear arms in other states with different requirements. To qualify for a Florida concealed weapon license, an applicant must be a U.S. citizen or legal permanent resident who is at least 21 years old (18 for honorably discharged military veterans), has no disqualifying criminal or psychiatric records, and is not subject to a domestic violence restraining order. He also must “demonstrate competency with a firearm.” Georgia has similar requirements, although it issues carry permits only to state residents.

As Minnesota sees it, those criteria are not strict enough: Although Minnesota recognizes carry permits issued by 33 other states, neither Florida nor Georgia made the cut. And according to the U.S. Court of Appeals for the 8th Circuit, that is Minnesota’s call to make.

“When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct,” the Supreme Court held in Bruen. The government then “must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.'”

Johnson’s Second Amendment challenge “fails at Bruen step one because Minnesota’s reciprocity statute, standing alone, does not regulate arms-bearing conduct,” the 8th Circuit ruled last May. “Though publicly carrying a firearm in Minnesota is covered by the Second Amendment’s text, that conduct is regulated by Minnesota’s permitting requirement, and Johnson repeatedly concedes that Minnesota’s shall-issue permitting requirement does not violate the Second Amendment.”

Minnesota’s reciprocity policy, by contrast, “does not regulate any conduct covered by the Second Amendment’s text, which says nothing about permitting reciprocity,” the appeals court said. “By allowing permitholders from recognized states to use their out-of-state permits as if they were Minnesota permits, the reciprocity statute exempts qualified individuals from Minnesota’s permit application process. And because the reciprocity statute merely creates an exemption from the permitting process, it does not restrict any arms-bearing conduct.”

That reasoning is erroneous, Johnson’s petition argues, because “Minnesota’s licensing regime and its reciprocity statute are separate laws that can grant or deny Second Amendment rights independent of one another.” Johnson “could carry his firearm in Minnesota if he obtained a Minnesota license,” but he also could do so if “his Florida or Georgia license [were] recognized by the reciprocity statute.” Each law therefore “independently restricts Johnson’s right to bear arms, which is conduct that ‘falls within the plain text of the Second Amendment.'”

Last June in Wolford v. Lopez, the petition notes, the Supreme Court recognized that “the Second Amendment has the same meaning in all parts of the United States.” Yet the 8th Circuit’s decision “makes the Second Amendment the only enumerated right that a state may extinguish based solely on which sister state issued a citizen’s credentials, with no analogue anywhere else in this Court’s constitutional jurisprudence.”

The case raises an issue that “recurs constantly nationwide,” since “millions of Americans hold state-issued firearm permits and cross state lines for work and travel every day,” the petition says. “The Eighth Circuit ruling will subject them to an inconsistent patchwork of reciprocity rules that only this Court can resolve.”

Unlike Johnson, Randy Westbrook lives in the state where he wants to carry a handgun. But Holyoke Police Chief David Pratt rejected Westbrook’s application for a Massachusetts carry permit after determining that he did not meet the state’s “suitability” requirement. That provision, part of a law that state legislators enacted after Bruen, authorizes local licensing officials to reject applications based on “reliable, articulable and credible information that the applicant has exhibited or engaged in behavior that suggests that, if issued a license, the applicant may create a risk to public safety or a risk of danger to themselves or others.”

More than 13 years before Pratt rejected Westbrook’s application, the police chief noted, Westbrook had been charged with domestic assault and aggravated assault and battery. Prosecutors dropped the first charge, and the other was resolved by a “continuance without a finding” (CWOF), meaning Westbrook was not convicted but admitted facts sufficient to establish his guilt. In 2014, drug charges against Westbrook likewise were resolved by a CWOF.

“I look at the facts of the cases that are presented to me in each individual case, and I make a decision based on that,” Pratt testified when Westbrook challenged the denial of his application. Pratt said his determinations of “unsuitability” were based not on any specific criteria but on his “31 years of police experience.”

Although a district court judge ruled that the state’s “suitability” requirement was unconstitutional, a Hampden County Superior Court judge disagreed, and the Supreme Judicial Court (SJC) granted Westbrook’s application for direct appellate review. The SJC is scheduled to hear oral argument in the case on October 7.

In a brief supporting Westbrook’s appeal filed last week, the Second Amendment Foundation (SAF) and several other gun rights groups emphasize that he was never convicted of the offenses that Pratt cited. “Factors other than consciousness of guilt—including expedience or avoidance of publicity—may motivate a defendant to admit to sufficient facts in exchange for a continuance and eventual dismissal,” the brief says, quoting a 1986 SJC decision. “Criminal charges not resulting in conviction do not provide adequate or reliable evidence that the alleged crime was committed.”

Since the state chose to “make these deals with Mr. Westbrook rather than pursue convictions or guilty pleas,” the SAF argues, it “cannot renege on them and insist that just one constitutional right is not part of the deal. If it wanted to permanently disarm Mr. Westbrook, it should have pursued a conviction. The Commonwealth chose to do otherwise, and Mr. Westbrook’s charges were dismissed, leaving his constitutional rights intact.”

The “suitability” requirement is “plainly unconstitutional” as applied to Westbrook, the SAF says, “but it is also facially unconstitutional insofar as it allows licensing authorities to determine if someone is unsuitable through non-objective criteria including whether they ‘may create a risk to public safety.’ Only objective criteria are permissible grounds to deny someone a permit, such as denying an applicant based on their conviction of a violent crime [or] an involuntary commitment to a mental institution.”

Licensing officials such as Pratt “should be serving a ministerial function, checking whether the applicant meets any of an objective list of criteria that call for automatic denial,” the SAF argues. “Once they depart from that and instead begin determining whether someone might be a threat to public safety, they are engaging in the exact sort of subjective suitability determination that Bruen expressly forbids.”

In Bruen, the Supreme Court noted that “the vast majority of States—43 by our count—are ‘shall issue’ jurisdictions, where authorities must issue concealed-carry licenses whenever applicants satisfy certain threshold requirements, without granting licensing officials discretion to deny licenses based on a perceived lack of need or suitability.” Those laws, a footnote emphasized, “appear to contain only ‘narrow, objective, and definite standards’ guiding licensing officials,” as opposed to “requiring the ‘appraisal of facts, the exercise of judgment, and the formation of an opinion.'”

It is “hard to imagine a statute more expressly written to run afoul” of that distinction, the SAF says. But other language in Bruen raises doubts on that score.

In another footnote, the Supreme Court said three states “have discretionary criteria but appear to operate like ‘shall issue’ jurisdictions.” In Connecticut, for example, “officials have discretion to deny a concealed-carry permit to anyone who is not a ‘suitable person,'” but “the ‘suitable person’ standard 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.'” Bruen likewise classified Rhode Island as a de facto “shall issue” state despite its “suitability” requirement, noting that “the Rhode Island Supreme Court has flatly denied that the ‘[d]emonstration of a proper showing of need’ is a component of that requirement.”

It is not clear whether the Supreme Court meant to approve such criteria. It may merely have been distinguishing Connecticut and Rhode Island from states that required a “special need,” the sort of provision at issue in Bruen.

The SAF also argues that a “suitability” requirement like the one that blocked Westbrook’s application fails Bruen‘s historical test. Although the Supreme Court has recognized a historical tradition of disarming people who pose “a clear threat of physical violence to another,” the SAF says, the evidence does not suggest that Westbrook falls into that category.

“If it were the year 2011, and Mr. Westbrook had just recently admitted to sufficient facts for a finding of guilty as to alleged domestic violence, or received a continuance without a finding, then perhaps” he could reasonably be viewed as dangerous, the brief concedes. But “Mr. Westbrook’s last alleged violent crime was over 16 years ago, and the last crime of any kind in the record dates back 12 years.”

In upholding the ban on gun possession by people subject to domestic violence restraining orders, the SAF notes, the Supreme Court emphasized the “limited duration” of that disability. “In contrast, here there is no such temporal limitation,” the brief says. Massachusetts “appears to be arguing that based on findings and admissions from over a decade ago (resulting in no actual conviction), it can deny Mr. Westbrook the right to carry forever. That finds no support in either our historical tradition or in Supreme Court precedent.”

Massachusetts seems to recognize that problem, emphasizing that Westbrook “submitted no evidence to Chief Pratt that he no longer posed a danger to public safety.” But the state “does not in any way explain what that evidence might be,” the SAF notes. Nor does the statute “provide any clear and objective criteria to overturn a suitability-based denial on a future application attempt.”

One could speculate about what Westbrook might have done. “Would a psychological review help?” the SAF wonders. “Letters of recommendation? Community service?” But under the current policy, Westbrook “is simply left to guess what evidence might satisfy Chief Pratt’s subjective suitability determination.”

Westbrook “has been in a sort of Second Amendment purgatory for many years now, legally able to own firearms but prohibited from carrying them due to Chief Pratt’s unconstitutional suitability determination,” the SAF concludes. “Whatever danger there may have been in 2010, the Commonwealth opted not to pursue a conviction, and it cannot forever deny Westbrook a constitutional right based on alleged crimes from well over a decade ago. Our historical tradition will not stand for that.”