The Supreme Court has long declared itself “supreme in the exposition of the law of the Constitution.”1 But that does not leave the state courts with nothing to say. Recently, in People v. Thompson,2 the Supreme Court of Illinois upheld the state’s concealed-carriage licensing regime against a facial Second Amendment challenge.3 Thompson flipped the U.S. Supreme Court’s reasoning in New York State Rifle & Pistol Ass’n v. Bruen4 on its head, conjuring from a footnote and a concurrence a categorical exception to the history-and-tradition test that appears to consume the test itself in the firearm-permitting context. While Thompson confuses dictum with settled law, it provides a framework for other jurisdictions to avoid applying history and tradition while remaining within the letter of Bruen.
In Illinois, two criminal statutes regulate firearm carriage. The unlawful use of a weapon (UUW) statute bans the open carriage of firearms,5 and the aggravated unlawful use of a weapon (AUUW) statute limits concealed-carry rights to the licensed carriage of a “pistol, revolver, or handgun.”6 The Firearm Concealed Carry Act7 places further restrictions on the issuance of concealed carry licenses (CCLs). To be approved for a CCL, applicants must be at least twenty-one at the time of application; have a valid Firearm Owner’s Identification Card, which is required for the possession of firearms in Illinois;8 pass criminal-background and substance-abuse checks; and complete a firearms training course.9 Concealed carriage absent a CCL constitutes AUUW, a felony offense.10
On March 25, 2020, police pulled over Tyshon Thompson after his vehicle and another exchanged gunfire on a highway.11 The police arrested Thompson after finding “an uncased, loaded handgun inside [his] glove compartment.”12 A grand jury indicted him under the AUUW statute for carrying in his “vehicle . . . a handgun . . . [that] was uncased, loaded, and immediately accessible, and [for which] he had not been issued a currently valid” CCL.13 He was convicted and sentenced to thirty months in prison.14
Thompson appealed his conviction to the intermediate state appeals court,15 contending, inter alia, that the AUUW statute’s open-carriage ban impermissibly abridged his Second Amendment rights.16 Writing for the court, Justice McBride rejected this challenge.17 In Bruen, she explained, the Supreme Court held that citizens cannot be required to show proper cause to receive a gun license.18 This kind of “may-issue” regime, under which a state licensing authority maintains “discretion to deny a ‘concealed-carry license’ application,” is inconsistent with the “Nation’s historical tradition of firearm regulation” under Bruen.19 Yet Justice McBride noted that Bruen’s history-and-tradition standard “does not grant an unrestricted right to carry firearms by all people and at all times.”20 Instead, referencing footnote nine of the Bruen majority opinion, she reasoned that “[t]he Bruen court explicitly held that open carry without a license was not mandated under the second amendment.”21 Footnote nine differentiated the “may-issue” regime at issue in Bruen from “shall-issue” regimes, which employ “narrow, objective, and definite standards” and “under which ‘a general desire for self-defense is sufficient to obtain a [permit].’”22 Because the Court had listed Illinois among shall-issue states,23 Justice McBride concluded that “the Bruen court upheld Illinois’s laws providing for a CCL application.”24 She also declined to consider Thompson’s argument that Illinois’s CCL regime was unconstitutionally discretionary, holding that, because he had never applied for a license, Thompson lacked standing to challenge the Firearm Concealed Carry Act.25 Thompson appealed.26
The Supreme Court of Illinois affirmed.27 Writing for the majority, Justice Rochford rejected Thompson’s contention that his conviction “implicate[d]” the open-carriage ban.28 Because Thompson was charged under the AUUW statute’s restriction on unlicensed concealed carriage, Justice Rochford reasoned that the state’s open-carriage law was not “at issue.”29 Thus, the court instead considered whether Illinois’s restrictions on concealed carriage were facially unconstitutional30 — that is, whether “no set of circumstances exists under which [the law] would be valid.”31 Thompson argued that, in failing to conduct a history-and-tradition analysis, the appellate court had committed reversible error.32 Justice Rochford disagreed. While she acknowledged that “the Bruen Court undertook extensive analysis of the cited historical precursors,” she reasoned that replicating this approach would be unnecessary as Bruen had already “address[ed] the precise issue presented in this appeal: whether shall-issue firearm licensing regimes, like those set forth in Illinois’s Concealed Carry Act and [Firearm Owner’s Identification] Card Act, comport with the second amendment.”33 Justice Rochford explained that “[t]he foundation of Bruen’s holding is the difference between the proper-cause requirements in may-issue licensing regimes and the objective requirements in shall-issue licensing regimes.”34 Quoting footnote nine in full,35 she ruled that Bruen “expressly declared shall-issue licensing regimes facially constitutional.”36 She also quoted from Justice Kavanaugh’s concurrence, which asserted that “shall-issue licensing regimes are constitutionally permissible” and subject only to as-applied challenges.37 Justice Rochford reasoned that these elements amounted to an “express endorsement of shall-issue licensure[,] obviat[ing] the need for this court to apply the historical-tradition component of the Bruen analysis.”38
The court went on to address Thompson’s alternative arguments. First, Thompson insisted that the Firearm Concealed Carry Act gives officials too much discretion to deny certification in the firearm training course.39 But Justice Rochford held that Thompson had conceded this point when he acknowledged in briefing that the Act “provides an ‘objective description of the required training’” and requires the issuance of a certificate upon completion.40 Second, Thompson argued that allowing law enforcement to “object to . . . CCL application[s]” from people they reasonably suspect pose “a danger to [themselves] or others” made the regime “impermissibly discretionary.”41 In response, Justice Rochford again cited footnote nine, reasoning that Bruen countenanced mental health checks for this purpose.42 Third, Thompson argued that because Illinois law requires citizens seeking concealed-carry permits to obtain two levels of licensure — first, the Firearm Owner’s Identification Card required of all gun owners, then the additional CCL license — it was unlike the shall-issue regimes described in Bruen.43 He contended that the Illinois law turns “ordinary law-abiding citizens . . . into criminals when they fail to undergo two separate licensing processes.”44 Again Justice Rochford ruled that the dual-licensing scheme is still a shall-issue regime because it “do[es] not require applicants to show an atypical need” and aims to limit carriage to “law-abiding, responsible citizens.”45
Justice Overstreet dissented. Writing only for himself, he argued that Bruen “emphasized, expressly and in no uncertain terms, that when courts are faced with” Second Amendment challenges, they “must” engage in historical analysis.46 He began by appealing to “the elementary principle that, when our country’s highest court issues crucial, landmark rulings that define the basic meaning of our Bill of Rights,” it employs “clear, direct, and express language, not . . . hints or indirect suggestions hidden in a vague footnote in a case where the issue was not raised.”47 Underscoring the centrality of history-and-tradition analyses to landmark Second Amendment cases,48 Justice Overstreet argued that United States v. Rahimi49 “did not short-circuit the text-and-history analysis merely because the end result . . . was consistent with ‘what common sense suggests’”;50 rather, a court “‘must’ conduct” the text-and-history analysis.51 Justice Overstreet went on to criticize the majority’s conclusion that Bruen had resolved the constitutionality of shall-issue regimes.52 He noted that, to remain true to its own decree that history and tradition must lead any Second Amendment analysis, the Court must have “sua sponte . . . conducted a nonpublic text-and-history analysis of shall-issue licensing, . . . seek[ing] out the relevant historical precursors from some undefined historical record, without the” benefit of adverse party presentation.53 But because such conjecture would be “absurd,”54 Justice Overstreet argued that footnote nine suggests only “that the text-and-history analysis of ‘shall issue’ licensing statutes will be different than the analysis set out in Bruen.”55
Justice Overstreet also dismissed the significance of the concurrence by Justice Kavanaugh, whose embrace of shall-issue licensing did not command a majority of the Court.56 Concluding that the lower court committed reversible error, Justice Overstreet would have vacated the decision and remanded the case.57
The Thompson majority’s reasoning rests on what is likely dictum. Nevertheless, it provides a blueprint for other jurisdictions to preserve their shall-issue regimes against facial challenges — and to avoid applying Bruen’s history-and-tradition test in the process. The majority’s avoidance of history is unsurprising given the structural barriers for courts — especially state courts — to engage in searching historical analyses. While its treatment of precedent is shaky, Thompson advances two policy goals that may well influence other courts: first, limiting when state courts must conduct burdensome, bespoke historical inquiries in Second Amendment cases, and second, preserving the state’s firearms licensing regime.
Thompson’s reading of Bruen is at turns strained and suspect. Bruen held that “when the Second Amendment’s plain text covers an individual’s conduct,” the government must overcome the presumption that such conduct is constitutionally protected by showing its regulation to be “consistent with this Nation’s historical tradition of firearm regulation.”58 Yet the Supreme Court of Illinois treated footnote nine as an explicit carveout from that holding, citing Ninth Circuit precedent that reasoned that “the location” of a statement, “whether in the text or in a footnote,” was “a matter of style” rather than substance.59 Yet, stylish or not, footnote nine is very likely dictum.60 Shall-issue regimes were not at issue in Bruen, and the question of their constitutionality was not properly before the Court.61 While the majority in Thompson contended that “the Bruen Court went out of its way to address [this] issue,”62 such proactivity does not render footnote nine binding law. And Justice Kavanaugh’s concurrence, on which Thompson also relied,63 is equally nonbinding. At bottom, history and tradition is apposite for facial challenges to shall-issue regimes.
But there are good reasons why state courts could find Thompson’s reasoning appealing. By cobbling together a “holding” from footnote nine and Justice Kavanaugh’s concurrence, the Thompson majority sidestepped entirely the need for deep historical analysis — a line of inquiry the court appeared determined to avoid.64 It is not difficult to imagine why. While Bruen allows courts to rely on “the historical record compiled by the parties” (in lieu of assembling one themselves),65 it nonetheless requires courts to search diligently for the appropriate “historical analogies.”66 This process can prove a headache for judges. As Justice Barrett acknowledged in her concurrence in Rahimi, the history-and-tradition standard does not identify the level of generality at which the search for a historical analogue must be conducted,67 and lower courts have struggled to apply it consistently.68 Moreover, many — including the Justices themselves — have raised serious doubts about the institutional competence of the judiciary to engage in historical factfinding at all.69
These difficulties are redoubled in the state courts, which have increasingly been asked to weigh in on issues of Second Amendment interpretation.70 Because state courts oversee “the vast majority of firearms-related” prosecutions,71 they are frequently the loci of enforcement-based challenges to firearms regimes.72 Yet state courts are a poor venue for the kind of intense historical exegesis required under Bruen. For one, the cost and capacity limitations of the forums pose logistical challenges. State courts routinely suffer from congested dockets and threadbare budgets.73 It is difficult to imagine state court judges, say, appointing (and paying) historian-consultants to help them parse the provenance of a particular regulation, as has been considered in federal court.74 Removing the need for historical analysis over a subset of challenges to firearms regulations alleviates a logistical nightmare for overburdened state judges.
Circumventing the Bruen two-step may also serve a deeper policy purpose. Despite the assurances of Justices Thomas and Kavanaugh,75 there is reason to believe that shall-issue firearm regimes may fail under rigorous historical scrutiny. Indeed, the distinction between may-issue and shall-issue schemes is hardly an originalist one76: May-issue regimes first appeared in the late nineteenth century, while shall-issue regimes did not arrive until the 1960s.77 Given the late entry of shall-issue licensure, there is no guarantee that a sufficiently close historical analogue exists that could justify the policy. As Justice Overstreet noted, there is no evidence that the Bruen Court conducted any sub silentio historical analysis of shall-issue policies,78 and the court in Thompson may have been wary of what the history could turn up. Setting aside history entirely ensured that the court could uphold the Illinois law while avoiding injecting the strictures of history and tradition into state precedents.
Whatever the rationale, contriving a holding from Bruen’s dicta allowed the Thompson court to substantially narrow the scope of historical analysis necessary in Second Amendment cases. Since District of Columbia v. Heller,79 the Supreme Court has underscored the centrality of history in assessing the constitutionality of firearm-control schemes.80 Yet Thompson opens up a massive exception: So long as a state operates a shall-issue permitting scheme, that policy necessarily survives a facial Second Amendment challenge.81 And because shall-issue regulations are the only schemes left standing after Bruen,82 the decision takes facial challenges to firearm permitting schemes off the table entirely. In this context, the Thompson exception swallows Bruen whole.
If this approach is proper — if Bruen did in fact immunize all shall-issue regulations from facial challenges — it limits history as a tool of Second Amendment jurisprudence. Indeed, a wider embrace of Thompson’s logic would herald the end of facial challenges to concealed-carriage regulations entirely. Litigants would be limited to challenging regimes only as applied to specific facts — for instance, if “lengthy wait times in processing license applications or exorbitant fees” infringe upon their right to carry.83 As other state courts grapple with facial challenges to their shall-issue permitting schemes, Thompson provides a template by which they may affirm their shall-issue regimes, and, in that context, set aside history and tradition altogether.