Homicides

In 2007, Missouri repealed its purchaser licensing law.^{Reference Webster, Crifasi, Vernick, Hasegawa, Webster and Small1} The law, which had been in place since 1921, required those seeking to purchase a handgun to be licensed by local police.² Several studies have shown that this repeal of handgun purchaser licensing requirements significantly increased firearm homicide rates relative to estimated counterfactuals.³ In a 2014 study, Webster and colleagues found that Missouri's firearm homicide rate, which had been largely unchanged between 1999 and 2007, increased dramatically after the purchaser licensing law repeal.⁴ In the immediate period following the repeal, 2008-2010, the mean firearm homicide rate was 5.82 per 100,000 people annually.⁵ This number was 24.9% higher than the mean of 4.66 per 100,000 people annually prior to the repeal.⁶ This initial study, though promising, was not sufficient in of itself to draw conclusions on the efficacy of enacting similar policies elsewhere and prompted further analysis of both the Missouri repeal and enactment of similar laws elsewhere.⁷

In a more recent study, which included data through 2016, Hasegawa and colleagues estimated that Missouri's repeal was associated with a firearm homicide rate increase of 27% in the statistical model contrasting Missouri's rates against its most similar controls.⁸ This second study indicated the finding is worth extrapolating from.

Connecticut enacted a purchaser licensing law in 1995.^{Reference Rudolph9} A 2015 study used synthetic control models to estimate the effect of this purchaser licensing law on homicide rates.¹⁰ It found that the law was associated with a 40% reduction in firearm homicide rates during the first 10 years it was in place and found no change in homicide rates that did not involve firearms.¹¹

The most recent study of the effects of these changes in purchaser licensing laws uses additional years of data and somewhat different statistical models, but supports the general findings from the earlier studies.^{Reference McCourt12} McCourt and colleagues estimated that Missouri's repeal of handgun purchaser licensing requirements was associated with a 47% increase in firearm homicide rates during 2008-2017 and Connecticut's law was associated with a 28% decrease in firearm homicide rates between 1996 and 2017.¹³ Finally, a study that examined data from a broader set of states in order to estimate the association between state firearms laws and homicide rates in urban counties found that licensing laws were associated with an 11% reduction in firearm homicide rates at the county level.¹⁴

Note that the estimates of effectiveness vary within different studies due to differing time periods, units of analysis, and statistical procedures. Regardless of the range of estimates, each study of the effects of this policy on reducing gun homicides has shown significant public safety benefits. Importantly, none of these studies revealed any association between changes in purchaser licensing laws and homicides that did not involve firearms, strengthening the argument for a causal link.^{Reference Crifasi15}

Suicides

The same pattern of associations between firearm homicide rates and changes in purchaser licensing laws was found in a study of suicide rates.^{Reference Crifasi16} Crifasi and colleagues estimated a 15.4% reduction in firearm-related suicide rates in Connecticut during the first ten years after the state passed a purchaser licensing law (1996-2005) and a 16.1% increase in gun-related suicide rates in Missouri during the years following lawmakers' repeal of its purchaser licensing law, 2008-2012.¹⁷ Note that although Connecticut simultaneously passed a law increasing the minimum age to purchase a firearm from 18 to 21, this concurrent change is unlikely to have significantly biased the results, as the minimum age law could only have affected 18-20 year-olds, and there is limited evidence that minimum age laws on their own lessen homicide risk.¹⁸ A new study by McCourt et al. extended the analyses through 2017, estimating that Missouri's repeal of its handgun purchaser licensing law was associated with a 24% increase in firearm suicide rates and Connecticut's law was associated with a 33% decrease in firearm suicide rates.¹⁹ Connecticut enacted and in 2007 began significant enforcement of a law that gave law enforcement authority to remove firearms from individuals when there was an imminent threat.²⁰ When the estimates were limited to the time period before the emergency firearm removal law was implemented, the handgun purchaser license law was associated with a 23% decrease in firearm suicide rates.²¹

Mass Shootings

A study in the February 2020 issue of Criminology & Public Policy built on this earlier research by studying fatal mass shootings.^{Reference Webster22} Although deaths from mass shootings comprise a relatively small percentage of gun deaths, this study's findings are instructive.

Webster and colleagues compared “handgun purchaser licensing laws that require either in-person application or fingerprinting” to a wide range of common gun violence prevention policy solutions including laws regulating civilian concealed gun carrying, comprehensive background checks that include private transfers but don't require a license to purchase, domestic violence restraining orders, the addition of state-level prohibitor categories, large capacity magazine bans, and assault weapon bans.²³ Although the researchers acknowledge limitations of the dataset used, the findings on licensing handgun purchasers were robust to a range of statistical modeling approaches.²⁴

After controlling for other gun laws and factors hypothesized to influence risk for mass shootings, purchaser licensing laws were associated with a roughly 56 percent lower risk for fatal mass shootings.²⁵ The researchers “found no evidence that concealed carry laws, assault weapons bans, prohibitions for domestic abusers and violent misdemeanants, or point-of-sale [criminal background check] laws were associated with the incidence of fatal mass shootings.”²⁶

Why It Works

Researchers posit that these laws work by “reduc[ing] overall firearm availability within a state as well as reduc[ing] firearm availability to high-risk individuals.”²⁷

The precise mechanisms at work require greater study. Initial evidence suggests that purchaser licensing requirements reduce the diversion of guns to prohibited individuals through straw purchases and generally raise the price and risk of transferring hand-guns to someone without verification of their legal status.^{Footnote A9} Legal requirements to have a purchaser license also make it easier for a potential private seller to determine whether a prospective purchaser or gunowner can legally acquire firearms.^{Footnote A10} In a state with a licensing requirement, a person must apply for a license from the state after federal and state back-ground checks have been completed, wait to obtain a license, and then buy the firearm from a dealer or private seller after showing said license. In a non-licensing state, the person can walk into a gun shop, complete a background check, and buy a gun from a seller with a vested interest in allowing the purchase to go through without any oversight from an outside actor. Fingerprinting requirements make a background check more likely to identify prohibited persons because merely recording information from a government-issued ID onto purchase applications can lead to errors.^{Footnote A11} Finally, direct interface with the licensing officer may also be a deterrent to those who would like to acquire a gun to harm themselves or others, even if the person is not prohibited from possessing firearms.^{Footnote A12}

Typical Features of a Licensing Regime

Maryland's Firearm Safety Act of 2013 contains many elements typical of purchaser licensing regulation.^{Footnote A16} In Maryland, a person seeking to purchase a hand-gun must first apply for a license. To apply, the person must be 21 years old and reside in Maryland. The applicant submits an online form to the state police stating that they have no prohibitors and have completed a firearms training course, gets fingerprinted, and pays a $67 fee for the application and fingerprinting. After the application is submitted, the state public safety agency must run a criminal history records check within 30 days. To deny the ten-year license, the agency has to “provide a written denial, along with a statement of reasons and notice of appeal rights.” Administrative and judicial review of the licensing decision are available if requested within 30 days of denial.^{Footnote A17}

Elements of the policy vary by state, and often include minimum age, training requirement, discretion assigned to licensing officer, duration of permit, relationship to carry permit, fee charged, and maximum wait allowed. See Online Appendix 1 for additional detail.

Implementation

Policymakers may differ in which elements of a licensing regime they include, given other essential values at play. In making choices around setting fees or allowing decision-maker discretion, policymakers should take care to avoid imposing undue costs for those without ability to pay or exacerbating the effects of decision-maker bias. Whatever policy choices government actors make, they should craft a regime likely to withstand legal challenges. To ensure a new law is upheld, policymakers should consider (1) what constitutes a fair fee and situations in which a waiver of that fee may be applicable, (2) whether law enforcement discretion is appropriate in denying licenses, and (3) potential constitutional challenges to duration restrictions, as these issues have been most frequently litigated to date. Although the Supreme Court has yet to rule on these issues, circuit court case law and Supreme Court precedent from other areas of law can be instructive.

Fees

Licensing fees have been the subject of substantial post-Heller litigation. In Kwong v. Bloomberg, the Second Circuit upheld a $340 handgun license fee, though plaintiffs asserted the fee was unlawfully high.^{Footnote A26} The Second Circuit upheld the district court's finding “that the $340 fee did not impermissibly burden plaintiffs' Second Amendment rights under the Supreme Court's ‘fee jurisprudence’ because it was designed to defray, and did not exceed, the administrative costs of regulating an individual's right to bear arms.”^{Footnote A27}

The court says this finding holds true regardless of whether or not the regulation is analyzed under intermediate scrutiny. The court “express[es] skepticism” that the regulation would receive heightened scrutiny because it places only a “marginal” or “incremental” burden on the right. Even if intermediate scrutiny were to be applied, the “substantial” and “compelling, governmental interests in public safety and crime prevention” that are a “reasonable but not perfect fit” with a “licensing fee … designed to allow the City of New York to recover the costs incurred through operating its licensing scheme, which is designed to promote public safety and prevent gun violence” constitute a regulation that “easily survives.”^{Footnote A28}

In the 2015 Heller III decision, the DC Circuit agreed with the Second Circuit's fee analysis. Rather than arguing a $48 fee was too high, the plaintiff argued that “‘[t]he District may not condition exercise of a fundamental constitutional right on the creation of a burdensome registration regime and then justify imposing ‘administrative costs’ to pay for it.’”^{Footnote A29} But the court, citing to Kwong, the Supreme Court's First Amendment jurisprudence, and its own holding in Heller II, found that “‘administrative … provisions incidental to the underlying regime’—which include reasonable fees associated with registration—are lawful insofar as the underlying regime is lawful.”^{Footnote A30}

How courts will respond to fees above what is needed to defray administrative costs is as yet unclear, although an Illinois state appellate court upheld such a fee in 2019.^{Footnote A31} States looking to do so may wish to invoke the history of using gun tax revenue for other purposes, as Shearer and Anderman do when they argue that courts should look to this history to uphold gun violence-prevention taxes.^{Footnote A32}

Courts may also look to case law from other contexts. For instance, the Supreme Court has well-developed case law around First Amendment licensing fees. The Court first addressed this issue in a 1941 case, Cox v. New Hampshire, upholding a New Hampshire fee requirement for parade permits because it was designed “to meet the expense incident to the administration of the act and to the maintenance of public order in the matter licensed.”^{Footnote A33} Shortly thereafter, the Court cabined its holding in Cox in Murdock v. Pennsylvania, striking down an ordinance requiring Jehovah's Witness preachers to pay for a license to collect contributions when handing out pamphlets. The Court saw Murdock as different from Cox because the fee in question was neither merely recouping administrative costs nor protecting public health and safety while regulating dangerous activities.^{Footnote A34}

Although courts have upheld, and will likely continue to uphold, fees as high as $340 for a firearm purchaser license, policymakers should consider a fee waiver for low-income applicants. A fee waiver would have the dual benefits of providing added protection against constitutional challenges and making access to licensing more equitable for low-income communities, and in particular for low-income communities of color most likely to be targeted for enforcement against unlicensed gun purchases. A reasonable fee waiver might waive the fee for applicants receiving certain public benefits, applicants with income under 125% of the federal poverty level, or applicants otherwise unable to pay.

Discretion

If gun licensing litigation tracks patterns in litigation over other gun laws, decision-maker discretion may continue to grow as a litigation focal point. State actors wishing to reduce litigation risk and craft a policy that is relatively less susceptible to potential licensing officer bias should consider eliminating all decision-maker discretion. Recognizing, however, the policy trade-offs inherent in doing so, some may wish to maintain elements of discretion. If a policymaker chooses to maintain some level of licensing officer discretion, they should do so narrowly — perhaps borrowing from procedures used for discretionary Extreme Risk Protection Orders — to enact policies with strict parameters around permissible reasons for discretionary denial as well as documentation requirements for the licensing officers.^{Footnote A35}

In the concealed carry arena, debates over discretion often center on whether a licensing officer “may” or “shall” issue a license. States with purchaser licenses currently sidestep that controversy by including “shall” issue language, making it mandatory for the licensing officer to issue a license if the applicant meets certain criteria.^{Footnote A36} However, discretion can be found elsewhere in a statutory scheme. New York's Penal Law § 400.00 delegates broad discretion to the licensing officer, allowing denial “for good cause” and asking the licensing officer to determine whether the applicant has “good moral character” without clear legislative standards for either determination.^{Footnote A37} As a result, individual license denials have been widely litigated in New York.

Courts have generally created and upheld their own standards for reasoned decision-making by licensing officers making gun licensing decisions. In Kachalsky v. County of Westchester, a 2012 concealed carry case, the Second Circuit upheld an assignment of discretion in New York's concealed carry regulatory scheme comparable to the assignment of discretion found in its possession licensing regime, a requirement of “proper cause.” The court concluded “[p]laintiffs' contention that the proper cause requirement grants licensing officials unbridled discretion is something of a red herring” because the standard is defined by “binding judicial precedent” established over the course of many years.^{Footnote A38} New York courts have used similar logic to reject facial challenges to the possession licensing statute's grant of discretion.^{Footnote A39}

Courts have opted not to apply First Amendment doctrines around unbridled administrator discretion, substantial overbreadth, or facial vagueness to the Second Amendment context. These three distinct but overlapping doctrines are grounded in reasoning seen as specific to the First Amendment.^{Footnote A40}

In Hightower v. City of Boston, the plaintiff challenged the revocation of her firearm license, arguing that a provision of the state law asking the licensing officer to determine whether an applicant is “suitable” for a license was facially unconstitutional as a grant of “unbridled discretion.”^{Footnote A41} In evaluating this claim, the First Circuit chose to rely upon Second Amendment case law from lower courts instead, holding that “the prior restraint doctrine is specific to the First Amendment and stems from the substantive First Amendment restrictions.”^{Footnote A42} The court went on to cite the 1988 Supreme Court case City of Lakewood v. Plain Dealer Publishing Company warning against the dangers of a licensing law that “constitutes a prior restraint and may result in censorship.”^{Footnote A43}

In short, non-discretionary purchaser licensing regimes are on strong legal footing and can help alleviate concerns about licensing officer bias. Discretionary licensing, while likely also constitutional if properly implemented, remains vulnerable to as-applied challenges if the State cannot provide an objective reason for denial.

Duration Restrictions

To date, duration restrictions, though common, have either been upheld or gone unlitigated. In Heller III, however, the DC Circuit struck down a related “requirement that a gun owner re-register his firearm every three years” as unconstitutional on the basis that the government had not provided “substantial evidence” that they “could reasonably have concluded that requiring re-registration would advance an important governmental interest.”^{Footnote A44} Two of the government's justifications deemed insufficient by the court could have implications for licensing regimes in other states. The court did not view the possibility that a gun owner could have entered a prohibited category during the three years as reason to make them re-register, arguing that background checks could be done separately.^{Footnote A45} Similarly, the court argued that concerns about lost weapons could be handled through standalone reporting.^{Footnote A46} Although courts have not imported this to the licensing-only context to date, policymakers should be aware of litigation risk when considering duration restrictions.

Duration restrictions can, however, be useful as a forcing mechanism for frequent criminal background checks. States with point-of-sale background checks may consider longer license durations than states fully reliant on licensing background checks. For instance, Connecticut, a state with a point-of-sale background check law in place, allows purchaser licenses to remain valid for up to 5 years. States without point-of-sale background checks should consider a shorter license duration.