The Supreme Court in N.Y. State Rifle & Pistol Ass’n v. Bruen (2022) held that the Second Amendment secures a right to carry guns in public places for self-defense, but added:
To be clear, nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ “shall-issue” licensing regimes, under which “a general desire for self-defense is sufficient to obtain a [permit].” Because these licensing regimes do not require applicants to show an atypical need for armed self-defense, they do not necessarily prevent “law-abiding, responsible citizens” from exercising their Second Amendment right to public carry. Rather, it appears that these shall-issue regimes, which often require applicants to undergo a background check or pass a firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in fact, “law-abiding, responsible citizens.” And they likewise appear to contain only “narrow, objective, and definite standards” guiding licensing officials, rather than requiring the “appraisal of facts, the exercise of judgment, and the formation of an opinion”—features that typify proper-cause standards like New York’s.
That said, because any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.
Of course, that leaves the question about when wait times become unconstitutionally “lengthy” and fees become “exorbitant.” This question arises also with regard to other rights. The Supreme Court has upheld—over heated dissent—a 24-hour waiting period for abortions, justified by a cooling-off rationale. A short-lived Ninth Circuit decision that recognized a right to assisted suicide said that “reasonable, though short, waiting periods to prevent rash decisions” would be constitutional, and the later-enacted Oregon assisted suicide statute indeed provides a 15-day waiting period.
Likewise, a waiting period is often required by various laws for sterilization (30 days for federally subsidized sterilizations, for instance), though there might well be a constitutional right to undergo sterilization as part of one’s right to control one’s procreation. In many states it takes from one to five days to get a marriage license, though I know of no cases considering whether this violates the right to marry.
The Supreme Court has also held that a state may require people to register to vote fifty days before the election, for much the same investigatory reasons that are offered for some background-check-based waiting periods. Cities are generally allowed to require that demonstration and parade permit applications be filed some days in advance.
On the other hand, there are substantial limits on how long a waiting period can be, and on when such waiting periods may be imposed. Lower courts have suggested the upper bound for demonstration and parade permits might be three or four days. See, e.g., Douglas v. Brownell, 88 F.3d 1511, 1523-24 (8th Cir. 1996) (striking down a requirement of 5 days’ notice); Grossman v. City of Portland, 33 F.3d 1200, 1204-07 (9th Cir. 1994) (striking down a requirement of 7 days’ notice for demonstrations, when requirement covered even small groups); NAACP v. City of Richmond, 743 F.2d 1346, 1356-57 (9th Cir. 1984) (striking down a requirement of 20 days’ notice and suggesting that the upper bound might be as low as two or three days).
When the Court recognized a right to abortion, 48-hour waiting periods for abortions have been found to pose “substantial burdens,” but a twenty-four-hour waiting period was upheld. Even where prisoners and military members are involved—a context where the government generally has very broad authority—lower courts have struck down six-month and one-year waiting periods before a soldier or an inmate may marry.
And lower courts have also suggested that even if some substantial advance notice may normally be required for demonstration permits, there has to be a special exception for spontaneous expression occasioned by breaking events. Likewise, there has to be a special exception to abortion waiting periods for medical emergencies. This would suggest that a similar exception might have to be required for carry permits when the applicant can point to a specific, recently occurring threat—such as the applicant’s leaving an abusive boyfriend who threatened to kill her if she left. (Some states indeed offer such specific-threat-based exemptions from various gun-related waiting periods.)
Of course, these other constitutional rights are not perfect analogies. A three-day delay in voting, marrying, or demonstrating won’t leave you unprotected against a deadly attack. Conversely, erroneously authorizing someone to vote when he’s a convicted felon is less likely to cause serious harm than erroneously authorizing that same person to buy a gun.
What about taxes and fees? Again, the issue has arisen for other constitutional rights as well. Taxes based on the content of speech are unconstitutional, regardless of their magnitude. But this is a special case of the principle that discrimination based on certain kinds of characteristics—race, sex, religiosity, or the content or viewpoint of speech—is unconstitutional. Setting aside these special areas of constitutionally forbidden discrimination, and setting aside poll taxes, which were constitutional until the Twenty-Fourth Amendment forbade them, other kinds of taxes, fees, and indirect costs imposed on the exercise of constitutional rights are often permissible.
The government may require modest content-neutral fees for demonstration permits or charitable fundraising permits, at least if “the purpose of charging the fee is limited to defraying expenses incurred in furtherance of a legitimate state interest.” The same is true for marriage license fees and filing fees for political candidates (though the Court has held that the right to run for office is in some measure protected by the First Amendment). The same is doubtlessly true of costs involved in getting permits to build on your own property, a right protected by the Takings Clause.
Likewise, regulations of the right to abortion were not rendered unconstitutional, even when the right to abortion was constitutionally recognized, simply because they increase the cost of an abortion. The Court so held when upholding a 24-hour waiting period even though it required some women in states with very few abortion providers to stay in a hotel overnight or miss a day of work, and when upholding viability testing requirements that might have marginally increased the cost of an abortion. So long as the extra costs don’t amount to “substantial obstacle[s]” to a woman’s getting an abortion, they are constitutional.
At the same time, when a cost is high enough to impose a substantial obstacle to the exercise of a right for a considerable number of people, it is unconstitutional. This is likely also true when a cost goes materially beyond the cost of administering the otherwise permissible regulatory scheme. And if a law substantially burdens rightholders who are relatively poor, an exemption would likely be constitutionally required.
After Heller but before Bruen, courts upheld concealed carry fees of $200 and a handgun purchase permit fee of $340, but struck down a $1,000 handgun purchase permit fee. Post-Bruen cases now must consider which fees (including ones of $200 or $340) constitute “exorbitant fees [that] deny ordinary citizens their right to public carry” or their right to possess the guns at home. Fees that are closely connected to the costs of administering a permitting system might be more justifiable than ones that operate simply as taxes or as attempts to deter gun possession or carrying. But even when dealing with fees that are tied to administrative costs, I think courts should recognize that “[t]he poorly financed [self-defense] of little people,” like their “poorly financed causes” in the First Amendment context, deserves constitutional protection as much as the self-defense of the rich.
This brings us to the Illinois Appellate Court decision three weeks ago in People v. Gunn, written by Justice Rena Van Tine and joined by Justices Bertina Lampkin and Jesse Reyes:
[Gunn] argues that the Carry Act’s 90-day waiting period and 5-year validity period are unconstitutional because they do not comport with our nation’s historic tradition of firearm regulation. We find … [that] there is no need to engage in a historical analysis to determine whether the Carry Act’s 90-day waiting period and 5-year validity period are constitutional. In Bruen, the Court suggested that “lengthy” license processing wait times or “exorbitant” licensing fees may be grounds for findings of unconstitutionality. Here, however, Gunn has not alleged or argued that the 90-day waiting period and $150 fee every 5 years for renewal constitute “lengthy wait times” or “exorbitant fees,” respectively. We cannot say that 90 days constitutes a “lengthy” wait time nor that a $150 fee constitutes an “exorbitant fee.” Accordingly, we reject this argument.
I’m pretty skeptical about the 90-day waiting period, both because it does seem substantive “lengthy” but also because it seems hard to justify as a means “to ensure only that those bearing arms in the jurisdiction are, in fact, ‘law-abiding, responsible citizens.'” The $150 fee is a closer call, and its validity might turn on whether the state can show that the fee is “the purpose of charging the fee is limited to defraying expenses incurred in furtherance of a legitimate state interest” of processing the applications to make sure that applicants aren’t felons or otherwise disqualified, and that they have taken the necessary training. In any case, I expect much more such litigation in coming years.