Nebraska became the 27th state to remove the permitting requirement to carry a firearm in public when Gov. Jim Pillen (R-NE) signed LB 77 into law on April 25, 2023. Just weeks before that, Gov. Ron DeSantis (R-FL) celebrated when Florida became the 26th state to operate under permitless carry or "constitutional carry" laws. By July 1, Florida's law will take effect, meaning most of the United States will operate under permitless carry laws.
Andrew Willinger, executive director for the Center of Firearms Law at Duke University Law School, told the Washington Examiner that since June 23, 2022, New York State Rifle & Pistol Association v. Bruen ruling, the "regulatory movement" in Democratic-led states and Republican-led states over firearms has transitioned in polar opposite ways.
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"We're kind of seeing that split of blue states going further down the road and trying to figure out what they can do to regulate guns within the confines of Bruen, with red states generally taking moves to deregulate, no longer require permits, and so on," Willinger said.
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Although the justices didn't rule permit requirements were unconstitutional altogether, the 6-3 majority held that New York and other states with similar laws, including California, New Jersey, Hawaii, and Maryland, cannot use "subjective" criteria such as an ability to show "good moral character" but can rely on "objective" measures such as requiring background checks and training in firearms handling.
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Kirk Evans, attorney and President at U.S. LawShield, a firm providing legal defense for self-defense, told the Washington Examiner the shift toward a majority permitless carry nation is unsurprising but has brought new challenges to pro-gun control states.
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"States were always free to deregulate the possession and carrying of firearms," Evans said, adding that Bruen "did make it more difficult for anti-gun states to impose gun control."
"As a result, all of the blue states are currently tied up in litigation over almost all of the new laws passed since Bruen," Evans said.
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According to the National Conference of State Legislatures, approximately 1,400 bills in 2022 were introduced in state legislatures that had the word gun or firearm in their title summary.
But one of the more recent challenges post-Bruen has centered on a narrowly passed ballot measure in Oregon that restricts magazines that carry more than ten rounds of ammunition and requires training to obtain a gun permit.
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U.S. District Judge Karin Immergut is weighing a lawsuit against Measure 114, which passed by 50.64% in favor and 49.35%. The case was brought by several elected sheriffs, gun store owners, and other firearms advocates who say the law violates the Constitution.
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"It spans virtually all magazines by virtue of the fact that because of the way magazines are designed, most magazines can be modified or converted to hold more than 10 rounds," Kevin Starrett, the spokesman for the Oregon Firearms Federation, challenging the law in court, told the Washington Examiner.
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Oregon claims the law is "consistent with this nation's tradition of gun regulations," a pillar prerequisite for constitutional gun laws written in Justice Clarence Thomas's majority opinion in Bruen. At the same time, advocates like Starrett see the law as an intrusion on gun owners.
In the wake of Bruen, states such as Hawaii, known for some of the strictest gun laws, sought to pass legislation allowing more people to carry concealed firearms. But the measure also made many places, including beaches, hospitals, stadiums, bars, and movie theaters, into so-called sensitive areas, a move local Second Amendment advocates described as a "workaround" of the Supreme Court's decision.
"As made clear by the legislators in this year's session, they wanted to pass a bill that was as extreme as they thought they could get away with to subvert the rights of Hawaii's law-abiding firearms owners," Hawaii Firearms Coalition Director Andrew Namiki Roberts said in May.
New Jersey and New York adopted similar laws last year that quickly met legal challenges which are making their way through federal courts. A New Jersey federal judge blocked a bulk of the state's prohibitions on guns in sensitive places, while an appeals court has been considering a legal challenge to the Empire State's Concealed Carry Improvement Act, which was signed by Gov. Kathy Hochul (D-NY) in response to the Bruen decision.
Now, gun owners in New York and New Jersey are once again involved in particular Second Amendment challenges, this time suing the New York Police Department division that reviews applications for gun permits, arguing the NYPD application requirements are "impossible to meet."
Pepperdine University Caruso School of Law professor Jake Charles told the Washington Examiner that many high-profile legal challenges to gun laws had been broken down into three primary categories known as "where," which include sensitive places, "who," which are status-based prohibitions; and "what," which include challenges to what weapons a person can have.
And Evans said for the time being, regulations for "sensitive places" and "prohibited persons" are "far more likely to withstand the legal challenges than the other laws being passed in the blue states after Bruen."
Both experts indicated that lawsuits against specific firearms bans, such as an Illinois ban on certain semi-automatic guns and large-capacity magazines, could be the next Second Amendment issue the Supreme Court must grapple with. "Virtually every new law in these states has been the subject of a legal challenge," Evans said.
The Illinois Supreme Court heard arguments to challenges against the weapons and magazine ban last month, and the U.S. Court of Appeals for the 7th Circuit will listen to further federal challenges to the ban during a June 29 hearing.
The Supreme Court on May 17 declined to consider the challenge to the Illinois law. It didn't take up a petition in January to block New York's Concealed Carry Improvement Act, signaling the justices are willing to give lower courts more time to consider the decision's impact from last summer.
"These [challenges] are expected to last several years before they work their way through the appellate process for a final resolution," Evans said of Second Amendment legal fights around the nation.
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