Four ways a state can regulate carrying a gun, side by side

Think of four nightclubs. At the first, the door is locked and the owner says nobody gets in, period. At the second, a bouncer looks you over and lets in whoever he happens to like, and he never has to say why. At the third, a different bouncer holds a clipboard: meet the listed criteria and you walk in. At the fourth, the door is propped open and the sign says, "Be an adult and behave."

Those are the four ways American states have regulated carrying a gun in public: no-issue, may-issue, shall-issue and permitless carry. The labels get thrown around on cable news as if everybody knew what they meant, and most people don't. So here is the plain version, in one table, followed by the cases and laws that moved states from one column to another.

The table

Two words in that table do all the work. In the first two rows the key word is "may": the government may let you carry, or may not. In the third row the key word is "shall": the government has to. And the fourth row has no key word at all, because the permission isn't the government's to give.

No-issue: the locked door

A no-issue state has no process by which an ordinary citizen can legally carry a handgun in public. There are exceptions for police, for transporting a gun to a range, and similar narrow carve-outs, but the general rule is a ban.

For years Illinois was the leading example. Wisconsin was the other state that offered no way to carry concealed, until it changed its law in 2011 and began licensing in the fall of that year. That left Illinois as the last holdout, the only state with no provision at all for ordinary citizens to carry.

The wall came down in court. In Moore v. Madigan, decided by the Seventh Circuit on December 11, 2012, a two-to-one panel struck down Illinois's carry ban. Judge Richard Posner wrote the opinion. His reasoning was plain: the Second Amendment, as Heller described it, protects self-defense, and the need for self-defense doesn't stop at the front door. He noted that a person is more likely to be attacked on a sidewalk in a rough neighborhood than in a living room. The court gave the Illinois legislature 180 days to write a law that complied with the Constitution. The legislature passed the Firearm Concealed Carry Act in July 2013, over the governor's amendatory veto, and Illinois joined the rest of the country with a licensing system. (Illinois's version has a wrinkle: law enforcement agencies may object to an applicant, and a state review board decides the objection. Check the procedure on the Illinois State Police website if you live there.)

Moore preceded Bruen by almost a decade, and it shows that the Second Amendment's reach beyond the home was being argued long before the Supreme Court settled it.

May-issue: the bouncer who likes your shoes

May-issue is the middle system, and it was the most litigated. The statute says the licensing official "may" issue a permit, and it tells him what to look for: usually "good cause," "proper cause," or "justifiable need." In practice the official could decide that an applicant's reasons weren't good enough, and the decision was hard to challenge in court.

A hypothetical shows how it worked. Picture a shop owner who closes up at night, carries the day's receipts to the bank and lives in a neighborhood where her customers have been robbed. She applies for a permit and writes, truthfully, that she's afraid. The official responds that a general fear of crime isn't a "special need," because every shop owner in the city could say the same. The permit is denied. Nothing about her record is the problem. She was refused because the official found her reason insufficient, and the official never had to defend his standard to anyone.

Some may-issue jurisdictions granted permits liberally. Others granted them to almost no one outside of law enforcement, security guards and the well connected. That variation is the system's chief vice: your constitutional right depended on the habits of the official in your county.

On June 23, 2022, the Supreme Court decided New York State Rifle & Pistol Association v. Bruen and held that New York's proper-cause requirement violated the Second Amendment. The effect reached the other states that used similar "good cause" or "justifiable need" rules. The dissent identified the affected states as New York, California, Hawaii, Maryland and New Jersey. We cover the reasoning in Bruen and Rahimi explained, the history test every gun law now faces.

A caution. Bruen struck down discretionary "need" tests. It didn't end every kind of discretion in every statute. States that kept requirements such as "good moral character" or "suitability" are in litigation, and results vary by circuit. If you live in a former may-issue state, check your state police website and the current case law before you rely on what you read here.

Shall-issue: the clipboard

In a shall-issue state, the licensing agency has no discretion about whether to grant the permit. If the applicant meets the objective criteria, it must issue it. The criteria are set by statute: a minimum age, a background check, no disqualifying criminal convictions or mental-health adjudications, and often a training course, fingerprints and a fee.

This model took hold across the country in the late twentieth century. Florida enacted its version in 1987, and the idea spread over the following decades. Supporters say it rewards no one's whim and treats the right as a right, with reasonable screening. Critics on the other side say the screening is too thin, and critics on our side sometimes say the course requirements and fees, however well meant, can add up to a burden.

The Court spoke to that tension in Bruen. A footnote in the majority opinion said shall-issue regimes were not necessarily unconstitutional, but also warned that a system could be abused by exorbitant fees or lengthy delays that deny ordinary citizens their right. Justice Kavanaugh's concurrence, joined by the Chief Justice, stressed the first point: states may require background checks, fingerprinting, a firearms safety course, and the like, so long as they issue the license to those who meet the criteria. If you want to see how a shall-issue state handles reciprocity, why your carry permit works in some states and fails in others covers it.

Permitless carry: the open door

Permitless carry, which supporters call "constitutional carry," lets a law-abiding adult carry a handgun in public without getting a government permit first.

The tradition is older than the label. Vermont has long allowed carrying without a permit, resting on a provision of its state constitution on the right to bear arms. For a long time it was the exception. In 2003 Alaska changed its law to allow concealed carry without a permit, which made it the second state. Arizona followed in 2010. Other states joined over the next decade. Then in 2021 Texas enacted a permitless carry law, signed by Governor Greg Abbott and effective September 1, 2021, covering people twenty-one and older who aren't prohibited from possessing a firearm. When the country's second most populous state made the change, the national conversation changed, too.

Permitless doesn't mean lawless. In every such state, the people barred from possessing firearms remain barred. The restrictions on carrying in places like courthouses, schools and polling places continue. Rules on the use of force don't change. And a person who carries without a permit still has to know the law.

A fact many people miss: most permitless states still issue permits. Texas kept its License to Carry. Alaska still issues permits. The reason is practical. A permit from your home state is what other states look at when deciding whether to honor your right to carry there, so the resident who plans to travel wants one. A permit can also, in some states, shorten the paperwork for buying a gun. It's the same reciprocity patchwork described in why your carry permit works in some states and fails in others.

The best argument against permitless carry

You should hear it in its strongest form. Critics argue that training matters: a person who has never fired a handgun under stress may pose a danger to himself and bystanders. A permit process, they say, screens for disqualifying histories and teaches the law on the use of force. Some law enforcement groups have expressed concern about not being able to identify who is lawfully armed.

The reply has three parts. First, a right isn't normally conditioned on passing a test: no one needs a government permit and a class to speak, to worship or to petition. Second, the same prohibited-person rules apply, so the persons barred from guns are still barred. Third, training is a good idea, and the places where permitless carry has taken hold have not seen training disappear; gun owners buy classes because they want them, and the best instructors will tell you that the thing a government mandate cannot supply is the willingness to learn. I'd make the argument as a matter of principle. A person who thinks training should be mandatory has a policy argument to make to the legislature, and a person who thinks it should be voluntary has the Constitution on his side.

Four steps, one hypothetical citizen

To see the differences in practice, picture a hypothetical citizen, Marcus, a law-abiding adult with a clean record who wants to carry a handgun to and from his job.

1. In a no-issue state, there is nothing for Marcus to do. He can keep a gun at home, and he can transport it unloaded to a range, but he can't carry it down the street. Before Moore v. Madigan, that was Illinois.
2. In a may-issue state, Marcus fills out the application, writes down why he needs to carry, waits, and then learns whether an official agrees that his reason is good enough. He has no way to know the answer in advance, and he may have to pay the application fee before he finds out.
3. In a shall-issue state, Marcus reads the list of requirements, takes the course if one is required, goes to get fingerprinted, pays the fee and files. If he meets the criteria, the agency has to issue the permit. If it doesn't, he has grounds to sue.
4. In a permitless state, Marcus can carry as soon as he is old enough and not barred from owning a gun. He should still read the list of places where guns are off limits, because ignorance of the list is no defense.

Notice that only the third and fourth versions treat Marcus as a citizen exercising a right. The first two treat him as a petitioner asking for a favor.

This is also a good illustration of why conservatives value the federalist system even when it produces results we dislike. States have tried all four models, and the evidence of how each one works is on the public record for anybody to read. Three Towns, Three Rule Books and the Case for Letting States Differ makes that case in general terms, and the Supreme Court's role, which is to hold every state to the constitutional floor and let each choose its own model above it, is the subject of How McDonald v. Chicago carried the Second Amendment to every state.

Which system suits whom

Here is a verdict, system by system.

• No-issue is gone, and it should be. A constitutional right to bear arms cannot be satisfied by a rule that no ordinary citizen may bear them.
• May-issue, in its "special need" form, is gone too, after Bruen. A right that depends on the licensing official's opinion of your reasons is not a right.
• Shall-issue suits the person who wants a clear process, wants his permit honored when he travels, and doesn't mind a course. It is also the system most easily defended against the charge that gun owners oppose all rules.
• Permitless carry suits the person who sees the right as already given by the Constitution and who dislikes asking permission for it. Pair it with a good permit option and you serve both kinds of citizen.

The strongest approach, in my view, is the one Texas and Alaska use: permitless for those who want it, and a permit for those who want reciprocity or a formal record.

The bottom line

• Four systems, one key question: whose permission do you need? No-issue says nobody's; may-issue says an official's opinion; shall-issue says a checklist; permitless says none.
• Courts have closed the first two doors. Moore v. Madigan ended Illinois's ban in 2012, and Bruen ended "proper cause" in 2022.
• Shall-issue is the floor with training and screening. The Court has said it can be constitutional, and has warned that long delays and high fees can wreck it.
• Permitless carry is a growing option, and it is not a free-for-all. Prohibited persons stay prohibited, and the places off limits stay off limits.
• Know your own state. Read the statute, the state police page and the list of restricted places. Your rights are real, and so are the penalties for guessing wrong.