I understand why they take this position and why it seems that any gun law should be unconstitutional. As a strong 2nd Amendment supporter, I firmly believe that most (nearly all) gun laws on the books - especially in my native California - are unconstitutional. Not surprising, given that nearly all were written before the landmark Heller (2008) and McDonald (2010) decisions that established the "personal right" interpretation of the 2nd Amendment. Before that, it was assumed by most in the legal community that no gun law could be unconstitutional. This is still the working assumption by politicians in NY and CA , where they assume that these two decisions will be reversed and/or that they only apply to the issues specifically addressed in these two cases (which is absurd - but liberal courts are consistently applying different rules to 2nd Amendment cases).
Who am I to comment on this? Well, first of all, I'm not a lawyer. I am a gun owner who formally lived in California. I can tell you with confidence that, as a result of both fighting for the 2nd Amendment there and wanting to stay out of jail, I do know much more about gun law and court decisions that most lawyers (but clearly, much, much less than 2nd Amendment lawyers). My background in theology helps too, as there are many parallels between the two fields. I've read most of the significant pro-2nd Amendment decisions and understand them fairly well. I've also read a lot of material by 2nd Amendment attorneys. I welcome comments by any lawyers who may read this.
That said, let's look at the question: Is the requiring CCW permit unconstitutional?
Well, I have three answers:
1) It depends
2) Likely not
3) Maybe in the future
It Depends
It depends upon the nature of the permitting system. I don't see how any permitting system that requires the applicant to prove any kind of special need could possibly pass constitutional muster. (No other right requires a demonstrable need in order to exercise it. Furthermore, even the most resistive jurisdictions admit that they cannot requires this to "keep" or own a firearm.) A permitting system that intentionally makes it more difficult than reasonably necessary to obtain a permit, by requiring excessive training, higher than reasonably necessary fees, and any other requirement that is not reasonably necessary, is also almost certainly unconstitutional. (Yes, these are legal terms and not a license to require anything.)
Likely Not
I highly doubt that SCOTUS would find a "shall issue" permitting system unconstitutional, as long as the following conditions are met:
1) The citizen is presumptively entitled to a permit
2) Training requirements are not excessive (likely 8-16 hours would be the maximum since this is typical for armed guards)
3) The cost of the permit and training are not so high as to exclude even the poor from obtaining permits
Basically this is what the courts imposed upon IL and DC.
Assuming the the 2nd Amendment is accorded the highest level of protection (strict scrutiny) government must prove that there is both a compelling reason to regulate the right (compelling is a very strong word - essentially meaning that government is forced to act) and that the regulation that is implemented is the absolute least intrusive that accomplishes the "compelling purpose".
Essentially, rights protected by "strict scrutiny" may be regulated only when a government can prove it has no choice but to do so AND can also prove that there is no other less intrusive or restrictive method that will work. While we have won many victories under the lass stringent "intermediate scrutiny", what we need is strict scrutiny. SCOTUS has yet to decide this issue - and the more justices Trump appoints the better chance we have of getting strict scrutiny.
Maybe In The Future
What could change that would make permitting requirements unconstitutional? Well, the most obvious thing would be if permitless, or constitutional carry continues to spread and there continues to be no more problems with permitless carry than with permitted carry. In that case, it would be clear that requiring permits accomplishes nothing. At that point, a permit law would fail the "least intrusive" test and likely the "compelling need" test too.
That is why it is so foolish for the other side to delay CCW reciprocity and nationwide "shall issue". From their point of view, the longer they wait - the worse it gets. However, they show no signs of wising up.
Of course, the reverse is true. If we can ever get SCOTUS to decide the issue, the sooner they rule the less likely we will be to get a "constitutional carry" decision.
Finally, please understand that this is my opinion as to how the Supreme Court is likely to rule - NOT MY OPINION AS TO HOW I WOULD LIKE THEM TO RULE!
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