A decision expected next year by the U.S. Supreme Court on a New York state law restricting who can carry a weapon, concealed or not, in public could reshape how some states enforce concealed carry laws and permitting processes.
The case, New York State Rifle & Pistol Association Inc. v. Bruen, is a review of New York law that denies law-abiding citizens permission to carry a firearm unless they can demonstrate sufficient cause, which is determined by the state.
The New York law is restrictive compared with many other states’ laws on open and concealed firearm carrying, such as Colorado’s laws.
Cody Wisniewski, director of the Lakewood based Mountain States Legal Foundation’s Center to Keep and Bear Arms, served as counsel of record to the Supreme Court case.
Wisniewski said he thinks it is fairly unlikely the Supreme Court will rule in favor of New York. Even if it did, it wouldn’t immediately affect Colorado’s laws.
“Essentially, the Supreme Court is looking at New York’s carry license system,” he said.
New York is a “may issue” state, which means the state has discretion in selecting who receives concealed carry permits, he said.
Colorado, by contrast, is a “shall issue” state.
“’Shall issue’ states basically say that as long as you meet the legal requirements established by the state, the licensing official shall issue a concealed carry permit,” Wisniewski said.
Colorado is also an “open carry” state with no restrictions on carrying a firearm visible in public as long as the person carrying the gun is not prohibited from owning or possessing firearms. Colorado’s concealed carry permitting process is also fairly straightforward, La Plata County Sheriff Sean Smith said.
In Colorado, one must receive a training certificate from an approved concealed carry instructor, submit that certificate to the county sheriff for approval and pass a background check. The background check examines criminal records and residential history, Smith said.
State laws prohibit people from possessing a firearm if they have been convicted of a felony, are on probation or are under a court order, such as an extreme risk protection order.
Those circumstances also can prevent someone from obtaining or renewing a concealed carry permit. If someone has two substance abuse convictions within the past 10 years, the sheriff can deny a permit.
Schools and businesses can place their own prohibitions on open or concealed firearms on their premises, and that is one area where the Supreme Court’s ruling could have an impact, Smith said.
Wisniewski isn’t convinced that Colorado law regarding concealed carry permits would be affected if the Supreme Court ruled in favor of New York.
A ruling in favor of New York wouldn’t have a direct impact on “shall issue” states such as Colorado unless the state was already seeking to change from a “shall issue” state to a “may issue” state.
“If the Supreme Court upheld New York’s law, then Colorado could look to the New York model,” Wisniewski said.
He said that outcome is unlikely even in the event New York’s laws are upheld by the Supreme Court, but potentially, it could happen in Colorado and other states.
Wisniewski said New York’s model is problematic, not because the state has the right to regulate concealed carry – Colorado has and practices that right, he pointed out – but because New York’s model carries a “discretionary element.”
In New York, a state officer can decide who gets issued a concealed carry permit and who does not based on an individual’s demonstrated need for the permit. Advocates for less-restrictive gun control argue that model is in violation of the Second Amendment.
Wisniewski said New York’s law allows for levels of corruption at the state level, and people who should be able to exercise their right of self-defense in public end up prevented from doing so “because of the decision of a single licensing officer.”
He suspects that many “shall issue” states will remain such to avoid that “discretionary element” even if New York came out on top in this particular case.
The core issue, Wisniewski said, is that the level of discretion in New York’s model regarding concealed carry permits is not how other constitutionally protected rights are treated.
“No one would ever say that in order to speak in public you could leave it up to the discretion of a single individual that’s an officer of ‘X’ state,” he said.
If the Supreme Court backed New York’s model, Colorado law wouldn’t suddenly be unconstitutional. But, the state Legislature could pursue a New York model if it pleased.
But what would occur if the Supreme Court shoots down New York’s model, as Wisniewski thinks is likely?
“If the Supreme Court strikes down New York’s law and endorses ‘shall issue,’ that won’t affect any other state that has a ‘shall issue’ law on the books, which is the vast majority of states,” he said.
Such a ruling likely wouldn’t affect any state with a “shall issue” law, but the ruling would affect states with “may issue” laws such as California and New Jersey and put a stop to any state that attempts to convert to a “may issue” model.
Another possibility is the Supreme Court could address how lower and circuit courts are supposed to address Second Amendment cases, which Wisniewski said is likely with such a ruling.
“If the court does rule against New York, it will also likely clarify how lower courts are supposed to evaluate these cases,” Wisniewski said.
Smith said about 4,000 concealed carry permit holders live in La Plata County, which has a population of 56,222, according to a 2019 U.S. census estimate. He said he reviews about 30 permit applications per week. In the seven years that Smith has served as sheriff, Smith has rejected fewer than 20 initial permit requests, he said.
“We’ve had some others that have been taken (revoked) because of a new restraining order or a new conviction that comes in, that sort of thing,” he said.
The application is sent to the Colorado Bureau of Investigation, which will notify the sheriff whether an applicant is eligible, ineligible or possibly ineligible.
In cases where the applicant could be ineligible, the sheriff might have to dig further into an applicant’s criminal history, Smith said. Smith will reach out to other jurisdictions for conviction data that might be missing.
Smith described Colorado’s “shall issue” law as meaning that unless Smith and other sheriffs have specific cause to deny a permit, a permit shall be issued to an applicant.
Permits approved by the sheriff last for five years. Upon renewal, the sheriff will look at applicants’ criminal history to ensure that nothing new that could disqualify them has appeared on their record. If applicants pass inspection, they are approved for another five years.
“It’s nothing like what you hear about a judge doing a personal review in New York and all the very restrictive measures you hear there,” Smith said.
He said most firearms instructors in La Plata County that he has spoken with believe in Colorado’s concealed carry permitting system.
He said instructors offer a service to people that increases the safety of firearm use in a concealed setting as well as reinforcing understanding of how to use a firearm responsibly, an important part of concealed carrying, Smith said.
Smith recalled a “horror story” about an incident in Albuquerque. A woman spotted a shoplifter fleeing a Walmart with staff members chasing behind her. The woman drew her concealed firearm and fired several rounds at the shoplifter.
“Well, law enforcement’s not allowed to do that, no one’s allowed to do that,” Smith said.
He said firearms instructors are there to teach people the proper time to use self-defense.
Smith said the more people who have a better understanding of how to use a firearm responsibly, the better.
cburney@durangoherald.com
