The Sullivan Act of 1911 and the century New York spent rationing carry permits

Imagine a First Amendment that worked like this. You may publish a pamphlet, provided a county official agrees you have a "proper reason" to publish it, and provided you can show him a need that the rest of the public does not share. Applications are reviewed at the official's convenience. Denials need not be explained at length. Nobody in the capital would call that a free press. They would call it a licensing scheme for opinions, and the newspapers would be the first to say so.

For more than a century, New York ran exactly that arrangement for the right to bear arms. It began with a law bearing the name of a Tammany Hall politician, it grew a "proper cause" test, and it lasted until the Supreme Court ended it in 2022. The story is worth telling in order, because it shows what discretion does to a right: it turns the right into a favor.

Who was Timothy Sullivan, and what did his law do?

Timothy D. Sullivan, called "Big Tim," was a Tammany Hall power on the Lower East Side of Manhattan who served in the state senate and in Congress. The Sullivan Act, passed by the New York legislature in 1911 (Chapter 195 of that year's laws), bore his name because he sponsored it. Its core was simple. A person needed a license from the authorities to possess a pistol, or other firearm small enough to be concealed on the person, and carrying such a weapon without one became a crime. The state was not forbidding handguns. It was putting the permission to hold them in a government office.

Look at the structure before the motives. The Second Amendment treats the right to keep and bear arms as something that already exists and that government may not infringe, not something a person must ask leave to exercise. The Sullivan Act reversed the direction of the question. Instead of "may the government forbid this particular misuse," it asked "has the government agreed to let you?" Once the question is put that way, the answer depends on who is asking and who is deciding.

That brings us to the standard that made the statute famous.

How a licence became a favor

The 1911 act required a license. A 1913 amendment set the statewide standard for carrying in public: an applicant had to show "good moral character, and that proper cause exists for the issuance" of the license. The wording changed over the years and the section was later moved into the Penal Law as section 400.00, but the idea stuck: the applicant had to prove, to a local licensing officer, that he needed to exercise the right.

Notice what that does. In New York City, the licensing officer was the police commissioner. Elsewhere it was usually a judge or a county official. The statute did not tell them what "proper cause" meant. Courts that reviewed denials deferred heavily to the officer, and lower courts over the years spelled out the practical rule: a general desire for self-defense was not enough. You needed to show a special danger distinct from the dangers faced by the public at large, such as documented threats or a job that put you at unusual risk.

I want to be careful about what I claim here. I am not going to give you a story about a particular permit holder or a particular denial, because the record I can vouch for is the law's text and the courts' own description of it. What the text tells you is enough. An official who decides who has a "need" has the power to say yes to the person he knows and no to the person he does not. Over a century, it is hard to believe that power was never used the way such power is normally used. Reporters and legal scholars described, again and again, a system in which a small number of the well-connected and the famous held carry permits while a shopkeeper in the Bronx or a nurse working nights in Queens was told to call 911. I have no figures to offer, but a design that rests on one official's opinion invites that outcome.

What the Second Amendment says about permission

The text is a single sentence:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

"Shall not be infringed" is a limit on government. It is not an invitation to build an application process. In District of Columbia v. Heller (2008), the Supreme Court held that the amendment protects an individual right to keep a handgun in the home for self-defense. In McDonald v. City of Chicago (2010), it held that the right applies against the states through the Fourteenth Amendment. That left one question that Heller did not answer in so many words: does the right stop at the front door?

The text says "keep and bear." Bear means carry. A right that you may exercise in your living room and nowhere else is a right with a leash on it. I'd argue that the question was never close, and several courts of appeals reached the same view before the Supreme Court did. But for years the lower courts split, and the Second Circuit, which covers New York, upheld the proper-cause rule.

The steelman: why New York defended it

Fairness first. New York's defenders made an argument that its supporters would accept as their own. Dense cities, they said, are different from open country. More guns in crowded subways and streets mean more chances for an argument to turn deadly. Licensing officers are trained to know local conditions. A permit system that issues few licenses keeps the number of armed people in public low, and fewer armed people in public means fewer shootings. The state also argued that the Second Amendment, like every right, has limits, and that a long history of regulating public carry supports regulation now.

That is a serious argument and I take it seriously. Here is the answer, in four points.

1. A right is not a privilege to be rationed by need. We do not ask a citizen to show special need before he speaks, worships, or refuses to let police search his home. The right belongs to "the people," in the same phrase the Fourth Amendment uses. Requiring a special showing converts a right into a grant.
2. The argument proves too much. If dense cities justified refusing nearly every applicant, the same reasoning would justify refusing nearly every protester a parade permit because crowds are dangerous. The Court has never accepted that a right can be set aside because exercising it carries risk. Every right carries risk. That is why it needed to be written down.
3. The people who bear the cost are the ones with the least power. A wealthy resident can hire a guard. A person with a bodyguard does not need a permit to be safe. The person who walks home from a late shift at a bus stop has to rely on himself, and he is exactly the one a "special need" test turns away.
4. Discretion is the enemy of equal law. A licensing officer who can deny for any reason that sounds respectable holds a power to reward friends and punish critics. The framers feared that power in every branch. A rule of law means a rule that reads the same for the stranger as for the senator's cousin.

What Bruen decided

Two New Yorkers, Robert Nash and Brandon Koch, each held a restricted license, one that let them carry for hunting and target shooting. Each applied to have the restriction lifted so that they could carry for self-defense. Each was denied because, in the licensing officer's view, neither had shown proper cause. The New York State Rifle & Pistol Association joined them, and the case became New York State Rifle & Pistol Association v. Bruen.

On June 23, 2022, the Court ruled six to three that New York's proper-cause requirement violated the Constitution. Justice Clarence Thomas wrote for the majority. Two sentences from the opinion carry the whole structure. First, the test: when the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. Second, the burden: the government must then justify its regulation by showing it is consistent with the Nation's historical tradition of firearm regulation. The Court rejected the "interest balancing" that lower courts had applied, which asked judges to weigh a law's benefits against the burden on the right. As Justice Thomas put it in substance, the Second Amendment is not a second-class right.

Justice Kavanaugh, joined by the Chief Justice, wrote a concurrence that is useful for readers who worry about the consequences. He noted that the decision did not disturb the licensing regimes of the 43 states that already used objective "shall issue" rules, in which an applicant who meets stated criteria receives a permit. In other words, the ruling did not abolish permits. It abolished the permit that depends on a bureaucrat's opinion of your need. Justice Breyer dissented, joined by Justices Sotomayor and Kagan, emphasizing the danger of gun violence and the states' interest in regulating.

What "may issue" and "shall issue" mean

The two phrases appear constantly in this debate, and they are easy to define. May issue means the licensing officer may issue a permit, in his discretion, if he is satisfied. Shall issue means the officer must issue a permit to any applicant who meets objective criteria: a clean record, completed training where required, passing a background check. In the Court's description, a small number of states, New York among them, had maintained may-issue systems by the time of the decision. Everywhere else, the officer's job was to check a list rather than to judge a person.

The difference is not a technicality. Under shall-issue, a rejected applicant can ask what rule he failed. Under may-issue, there is no rule to point to.

How New York answered

Governor Kathy Hochul called the legislature into special session within days of the decision. The result, the Concealed Carry Improvement Act, was passed on July 1, 2022 and took effect later that year. It removed the proper-cause test, since it had to. But it did not step back from licensing. It kept a requirement that applicants show "good moral character," which it defined at length and left to the licensing officer's judgment. It required training hours and an in-person interview. It required applicants to disclose social media accounts for review, a provision that drew immediate challenges. And it listed a long roster of "sensitive places," among them transit, parks and a range of other public spaces, where carrying would be forbidden, and it made private property off limits for carrying unless the owner posted permission.

I will leave the details of each provision to the lawyers, and the litigation over them has been long and has moved through the federal courts of appeals. Check the current status of any one provision before you rely on it. What I can say as a matter of principle is this. The Court said the state may regulate by reference to historical tradition. It did not say a state may restore the old discretion under a new name. A "good moral character" standard that lets an officer decide who is worthy looks a great deal like "proper cause" with the paint changed. A "sensitive places" list long enough to cover most of a city is a way to give a right in the abstract and take it away in practice.

Conservatives should say this plainly, and say it without hysteria. There is a legitimate place for rules about courthouses, schools and secure government buildings, which have a long pedigree. The test is the one Bruen set: does the restriction have a historical analogue, or does it simply declare the whole public square a forbidden zone?

What a century of rationing teaches

There is a lesson here beyond New York. A right that depends on official permission is only as strong as the mood of the official. That is why the Founders wrote the Bill of Rights as prohibitions on government, not as promises of services. The text says "shall not be infringed," and an infringement can come as a ban or as a form that nobody in power is ever required to approve.

It is also worth remembering how the Sullivan Act got its reputation. Its defenders sold it as a crime-fighting measure aimed at gangsters. Gangsters, being criminals, were not scrupulous about licensing. The people who obeyed the law were the ones who bore the burden, and for a century that has been the pattern with such laws. If you want to judge a gun law, do not ask whether its sponsors have good intentions. Ask whom it burdens, who decides, and what the person on the receiving end can do about a denial.

Picture a retired schoolteacher in Rochester told that she has not shown "proper cause" while the licensing officer's friends sail through. That system proves the opposite of its own premise. If the right only belongs to those who can prove they are special, it is not a right. It is a membership.

Three Founding-era commitments belong in the same breath. The Declaration holds that governments are instituted to secure rights that already exist. The Federalist Papers, in number 46, describe an armed citizenry as part of the structure that keeps governments honest, a point taken up in Madison's Federalist 46 and the advantage of being armed that tyrants fear. And the Bill of Rights, as The right of the people means the same thing in the First, Second and Fourth shows, uses the same phrase, "the right of the people," for assembly, arms and the security of one's home. If one of those rights may be rationed by need, the others can be, too.

Other states, other paths

Vermont, as vermont never required a carry permit, and the sky never fell explains, never required a permit to carry at all. Several other states have since followed that "constitutional carry" model. New York's defenders predicted disaster from any loosening. The record in the states that did not license is at least a reason to ask whether the predictions of disaster were earned. For readers who want the larger arc, ninety years of federal gun law in the dates that changed the rules sets the federal story beside the state one, and Black Codes, the freedmen and the Fourteenth Amendment's right to bear arms shows how discretionary licensing was used in the South to disarm freedmen. Discretion has a long record of being used against the people with the least influence.

The case in brief

1. The Sullivan Act of 1911 moved the carrying of a concealable handgun from a right to a permission, and the later "proper cause" standard left the decision to a local official.
2. Discretionary licensing favors the connected and burdens the ordinary citizen, and the person who most needs a means of self-defense is the one most likely to be refused.
3. Bruen (2022) held that the Second Amendment protects carrying a handgun in public, and that the government must justify its rules by the nation's historical tradition, not by weighing interests.
4. New York's response kept much of the old discretion in new language, and the test of each provision is still whether it has a historical analogue or only a policy rationale.
5. The remedy for a right turned into a favor is the same as always: read the text, insist on objective rules, and hold officials to them.

What you can do: read your own state's carry-permit statute on your legislature's website, note whether it says "may issue" or "shall issue," and ask your state legislator which standard he or she supports.