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The Longer The Issue Is Left Undecided, Worse The Potential Outcome Becomes (For Them)

Historically, gun control advocates have done all they could to prevent a concealed carry case from reaching the Supreme Court. Twice they have accepted shall issue concealed carry rather than appeal and risk a loss at SCOTUS that would have created a national precedent. As a result, both Illinois and Washington DC now issue licenses without the need to prove “good cause”.  Of course, gun rights advocates would love to get a case before the nation’s highest court – especially after Trump’s appointees.

But has the other side been foolish to delay a case reaching SCOTUS?  I would argue that they have.

First of all, their delaying the issue has resulted in the Court becoming even more pro-gun rights than was the case when Heller and McDonald were decided over 10 years ago. There is little question that Justice Neil Gorsuch, Justice Brett Kavanaugh, and Justice Amy Coney Barrett are solid on the 2A. All three view the right as individual and are likely to set the standard of review at “strict scrutiny”, which would place the individual 2nd Amendment right on the same level as freedom of speech, freedom of the press and freedom of religion. If Heller and McDonald were decided today, the votes would not be 5-4, they would be 6-3 and perhaps even 7-2 (if Justice Kagan, who became a gun owner after joining the court, were to vote with the majority). If a carry case does make it to SCOTUS, gun control groups may very well wish it was the Supreme Court of 10-15 years ago deciding the case.

Second – and even more significant – while gun control advocates have been delaying the issue – more and more states have been adopting “shall issue” laws, and even more significantly, as of this writing. 18 have ditched the permit requirement altogether. The argument against “shall issue” concealed carry is weakened every time a state adopts it and doesn’t turn into the “wild west”. Now, with only 8 states maintaining a “may issue” system, that argument is basically impossible to make.

However, the 18 “Constitutional Carry” states could result in a decision that neither side has anticipated. Whenever a carry case does get to the Supreme Court, the gun rights side will absolutely point to these 18 (or more) states in their argument. Assuming that these states continue to have no more issues than states that require a license or permit, and that the Court decides that the 2nd Amendment does indeed protect a right to carry outside the home, it is possible the high court could rule that requiring a license or permit is unconstitutional and mandate Constitutional Carry nationwide.

While I consider this only an outside possibility, if SCOTUS decides that the standard of review is strict scrutiny, it is questionable that a shall issue permitting system would survive review. Remember that first those defending such laws must prove that there is a compelling need. If 36% of states are doing fine without little to no restriction on carry, where is the compelling need? Even if there is such a need, is a licensing program the least intrusive method of meeting this need? (The second required test under strict scrutiny.) For instance, if the need is for law enforcement to know if the person carrying is prohibited from owning or possessing firearms, a requirement that a government ID be carried whenever carrying a firearm, and presented to law enforcement upon request would meet this need.

Whenever a carry case reaches SCOTUS, I think it very likely that gun control groups will regret not sitting down with gun rights advocates and creating a model shall issue concealed carry bill to be presented to state lawmakers in the remaining eight may issue states. Of course, this would be unthinkable to their base – but that does not mean they are not making a huge mistake.


-Rev. R. Vincent Warde
 2-26-2021