Permits to Purchase or Carry Arms are Infringements of Second Amendment Rights

Outdated permit to purchase handgun in Grand Island Nebraska

The right to keep and bear arms necessarily includes the right to obtain arms. Arms can be obtained in several ways. Those include: making your own arms; buying your arms from someone else; having your arms given to you; finding arms which have been lost or discarded; and stealing arms which belong to someone else.

The most common method of obtaining arms is to buy them. The right to buy arms is clearly included in the right to keep and bear arms as an ancillary right necessary to maintain the right to keep and bear them. Ancillary rights necessary to preserve the right to keep and bear arms have been recognized by the Supreme Court and inferior courts as necessary to maintain the right to keep and bear arms.

It follows, therefore, requiring a permit to purchase arms is an infringement of the right to keep and bear arms. 

Under the Supreme Court decision in Bruen, if a statute implicates an action protected under the Second Amendment, the State has the burden of proving, with the historical record, such infringements were common and accepted just before and after the ratification of the Second Amendment; or, to a lesser extent, shortly after the ratification of the Fourteenth Amendment in 1868. Occasional statutes or local laws or laws of short duration are not sufficient to establish a law as common and accepted. Laws which affected only a small percentage of the population are unlikely to meet the historical test.  Governments in the late colonial  and early republic era had the same concerns with disarming dangerous individuals as do governments today. They could have enacted laws requiring a permit to purchase firearms. The lack of such laws is evidence they were not widely viewed as acceptable infringements on the right to keep and bear arms, protected by the Second Amendment.

There was no lack of laws against stealing. Prohibition of stealing is in the DNA of Western jurisprudence and culture, deriving from the biblical commandment not to steal. Laws against the theft of arms are not infringements on Second Amendment rights.

Some judges have claimed there is historical support which allows the requirement of a permit to purchase arms or the carry arms. Chief Judge Renee Marie Bumb, of the federal District Court, D. of New Jersey, in her opinion issued on May 16, 2023, implies the requirement to obtain a permit to obtain and carry arms is acceptable in American history.

Judge Bumb treats a permit to purchase and a permit to carry as essentially the same. The "why" of the law is to disarm dangerous people; to a lesser extent it is to prevent dangerous people from having arms.

There is much which is positive in Judge Bumb's opinion. Finding there is a historical acceptance of requiring a permit to carry, or even purchase, a firearm is an unfortunate misreading by Judge Bumb. From page 10 of the Opinion:

That said, this Court finds that most of the new legislation’s firearm permitting requirements are consistent with the Second Amendment. This Nation has historically disarmed dangerous individuals or those who could endanger the public’s safety if allowed to have a firearm. The new legislation adheres to that historical tradition because it aims to keep firearms out of the hands of New Jerseyans who could threaten the public’s safety.

Judge Bumb recognizes the inherent infringement of permit laws, but claims permits are an acceptable infringement.  From the opinion:

Page 35:

Chapter 131’s permit process implicates the right to armed self-defense in public because an individual must first obtain a Carry Permit to carry a handgun in public for self-defense, otherwise, the individual exposes him- or herself to criminal liability. N.J. Stat. Ann. § 2C:39-5(b).

Page 37:  

Bruen left open the possibility of constitutional challenges to “shall issue” statutory laws because “any permitting scheme can be put toward abusive ends.”

Page 38:  

In any event, based on the State’s historical materials and the Court’s own research, this Court finds this Nation has a historical tradition of disarming dangerous individuals and those who endanger the public safety.

Judge Bumb relies on colonial laws from 1692 and later which allowed public officials to disarm people who were found to be dangerous, such as a New Hampshire colonial law allowing a person to be disarmed if they refused to take an oath of allegiance, or a Massachusetts law which allowed officials to disarm people who rode about to "terrify the public".  There were laws to prevent slaves from carrying or keeping arms without permission of the owner. A 1664 law of colonial New York which required a slave to obtain permission from his master to carry arms outside his master's property.  Similar laws existed in 1704 in Virginia, and for "free negros, mulattos or [I]ndians" to have guns after obtaining a license. North Carolina, South Carolina and Georgia had laws prohibiting slaves from carrying guns in public without permission from their owners.   In 1832 Delaware had a law allowing "free negros and mullatos" to carry firearms with a license.

Such laws were relatively rare. They applied to groups of people who were not considered part of the body politic. They required the permit only for particular groups of people, not the whole body of the people.

After the Civil war, a few jurisdictions required a permit to carry a pistol. They include local ordinances in Jersey City, in 1871 and the  City of New York, in 1881.  From these sparse underpinnings, Judge Bumb creates this finding. From page 57:

This Court finds that Chapter 131’s reputable persons endorsement and in-person interview requirements are “narrow, objective, and definite standards guiding licensing officials” to “ensure only those bearing arms in [New Jersey] are, in fact, law-abiding, responsible citizens.” Bruen, 142 S.

Such permits are a prior restraint on the right to keep and bear arms.

There is an enormous difference in the "how" of the law. The early laws required the State to determine a person was dangerous before they were disarmed.  In the early situation, most people are presumed to be allowed to possess and carry arms. Only small numbers of people are considered to be dangerous and disaffected.  In the later situation, which New Jersey is promoting, everyone is presumed to be dangerous and are not allowed to be armed until the state says they may.  This is a retreat to monarchical law. Significantly,  Colonial or early Republic States could have required everyone to apply for a permit before purchasing arms. No state passed such a general requirement. It is telling they did not do so.

The New Jersey law requires a person to prove they are not dangerous before they are allowed to be armed. The change in the burden of proof is huge. The New Jersey law equates the entire body of the people as dangerous and disaffected, until shown to be otherwise. Disarming  people who are already armed is significantly different from preventing people, who are not armed, from becoming armed.  Only people who were not considered part of the body politic (slaves and free Negros or mullatos, or Indians) in slave states, were presumed to need permission to be armed. The vast majority of the polity were not required to ask for or obtain permits. Only those who were not considered to be reliable were required to obtain permits.

The requirement to obtain a permit to own or carry arms puts ordinary, law abiding people in the same category as slaves or those who are presumed to have no allegiance to Constitutional government.

Significantly later, some jurisdictions required people to obtain a permit to purchase a pistol, such as Michigan in 1911 and North Carolina in 1919. Those statutes are too late to be relevant in Second Amendment jurisprudence.

In the philosophy of the founding, the majority of the people were to be trusted with political power, such as the vote and the right to keep and bear arms.  Only suspect minorities were required to apply for permits to own or carry arms. In the Progressive era, majorities of voters were to have their opinions and choices shaped by experts. They were not to be consulted in most decisions.

Judge Bumb explains the Supreme Court has not delivered an opinion on whether "shall issue" carry laws are constitutional under the Second Amendment.  She allows the issue is one which is yet to be adjudicated. Judge Bumb compares a permit to purchase or carry a firearm with a permit to have an event protected by the First Amendment. It is  a precarious comparison. One is for a group of people where significant costs may accrue to the the local government. Another is for an individual where the local government has no need to even know they are armed. The administrative costs are all created by the law requiring a permit, not costs created by the permit holder.

Over the last 100 years, infringements on the exercise of Second Amendment rights have created bureaucracies and a mythology of the usefulness or necessity of a government power to dole out those rights to a favored few. That era is over for most of the United States.  Recently, the requirement of permits to purchase handguns were repealed in Nebraska and North Carolina.

If the Republic can be maintained for a few more years, the words "shall not be infringed" have a good chance of being honored as they were meant when written.

©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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