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Pushing Back Against a Permission Society
While requiring citizens to seek permission from the state sometimes makes sense, it is often unnecessary and subject to abuse
The Supreme Court last month struck down a New York law requiring people to prove to government bureaucrats that they had a “special need” before they could possess a firearm for self-defense. The ruling made headlines, as gun-rights cases typically do, but its real significance goes far beyond guns or the Second Amendment and touches on one of the most basic questions in constitutional law: When can states use permit requirements to limit the exercise of freedoms that the Constitution promises to protect?
Laws that force people to get government permission—through a permit or a license—before they can own or do something are usually intended to implement basic safety standards, for example, by ensuring that anyone practicing medicine has the appropriate training first, or making sure that new buildings will be structurally sound before they’re built. But when a government increases the delay and difficulty of obtaining permission, or phrases its licensing requirements in vague, incomprehensible terms, such laws can effectively transform immutable rights into mere privileges that the government can grant or withhold for whatever reason it wants.
The problem isn’t limited to gun rights or the right to build on private property. It’s a pervasive threat, and one the Supreme Court has dealt with before, most notably in a series of rulings in the 1950s that require state and local governments to implement “procedural safeguards” to prevent licensing requirements from effectively nullifying individual rights. But today, those safeguards are routinely ignored by elected officials—as well as by judges. The New York gun decision offers some hope that the Supreme Court may be more diligent in enforcing those safeguards—with respect to all our rights—in the years to come.
‘Sic Utere’ vs. ‘Prior Restraint’
There are basically two ways to regulate any activity. The first is a centuries-old principle lawyers call sic utere—shorthand for the Latin phrase “sic utere tuo alienum non laedas,” which means “use your own property in such a way that you harm no other person.” Under the sic utere rule, people are free to act however they please, as long as they don’t harm anyone else; if someone else is harmed, whoever caused the harm can be punished or forced to pay restitution.
The alternative is to reverse this formula and forbid people from doing something unless they first get government permission. Lawyers call this approach “prior restraint,” and it’s the basic principle behind all permit requirements. Prior restraints make sense in some contexts—particularly in cases where the damage a wrongdoer might cause would be so severe that it can’t be made up for afterward. A medical patient who learns her surgeon never attended medical school would take little comfort being told that she need not worry because if she dies on the operating table, he’ll have to pay damages to her heirs. Prior restraint can be a more reasonable way to protect patients than the sic utere rule in such circumstances.
That’s why, in Dent v. West Virginia (1889), the first U.S. Supreme Court decision on the question, the justices upheld the constitutionality of medical licensing requirements. “It is undoubtedly the right of every citizen of the United States to follow any lawful calling, business, or profession he may choose,” wrote Justice Stephen J. Field. “But there is no arbitrary deprivation of such right where its exercise is not permitted because of a failure to comply with conditions imposed by the state for the protection of society. . . . If [licensing requirements] are appropriate to the calling or profession, and attainable by reasonable study or application, no objection to their validity can be raised.”
Yet the prior restraint rule is hardly foolproof. For one thing, even surgeons with the required licenses can make bad decisions and harm patients. More troubling, established businesses often find licensing laws a handy device for preventing competition. By getting politicians to raise the cost and difficulty of getting licenses, those who already have licenses can block anyone else from entering the market and competing against them. That’s bad for consumers because it raises costs and deters innovation—and it’s bad for entrepreneurs because it can block people from earning a living. Justice Field anticipated this concern, in fact, writing in Dent that if the qualifications the government requires “have no relation to [the] calling or profession, or are unattainable by [a person’s] reasonable study and application,” such laws “can operate to deprive [a person] of his right to pursue a lawful vocation.”
The Problems of Prior Restraint
But the problems with the prior restraint principle go beyond economics. In fact, the term “prior restraint” originated in 17th-century England, where it was used as a tool of censorship. In the years leading up to the English Civil War, that country’s laws prohibited writers from publishing anything without getting government permission first. That allowed the government to block publications before readers even saw them—and it intimidated dissenters and protestors into censoring themselves, since the hassle and expense of getting permission were severe enough that people often found it easier to simply hold their tongues instead of expressing controversial opinions.
In his classic book “Areopagitica” (1644), the poet John Milton assails prior restraints, not only because they restrict the free flow of information, but also because the officials enforcing the permit requirements might be “ignorant, imperious, and remiss, or basely pecuniary.” They might also manipulate the permit requirements in ways that empower themselves at the expense of the general public or give favors to those they like. Specifically, wealthy and politically influential applicants are more likely to get their permits, while unpopular minorities or people who simply have no political influence are more likely to be turned away.
Worst of all, Milton argues, are vague licensing criteria. Where licensing standards are ambiguously worded, people who need permits won’t know what they need to do to get one—resulting in delays, confusion and possible legal liability. And bureaucrats administering the law can essentially demand whatever they want from an applicant—including favors and bribes—in exchange for a permit.
These problems—self-censorship, favoritism, empowering bureaucrats to demand concessions and the confusing language in which licensing requirements were written—helped persuade England to abolish prior restraints on the press in 1695, and to adopt the sic utere rule instead. In the years that followed, the British came to boast of the strongest protections for free speech in the world: While someone might be punished after speaking—for committing, for example, libel or sedition—nobody could be forced to remain silent until he or she obtained government permission to speak.
When the U.S. Constitution was written, that rule against prior restraints in speech became a bedrock of First Amendment law. In 1971, the U.S. Supreme Court even let The Washington Post and The New York Times publish the Pentagon Papers—stolen military documents—during a time of war, on the grounds that the White House’s effort to block publication amounted to an unconstitutional prior restraint on speech.
Courts have struggled with applying that anti-prior restraint rule in other contexts, however. Take motion pictures, for example. Between the 1920s and the 1960s, state and local governments often required theaters to obtain permits before showing films—which gave licensing officials broad power to censor movies they thought people shouldn’t see. Amazingly enough, the Supreme Court initially denied that films were entitled to any constitutional protection at all—a position it only reversed in the 1950s, when it finally admitted that movies are “included in the definition of ‘press’ whose freedom is guaranteed by the First Amendment.”
Yet the justices allowed movie permit requirements to remain in place. Watering down what had once been an absolute rule against prior restraints on speech, they instead declared that such requirements were acceptable as long as they provided certain “procedural safeguards”: (1) the criteria for getting the permit must be clear and unambiguous; (2) the government must give anyone applying for a permit a specific deadline within which that permit would be granted or denied; and (3) the applicant must be given a hearing before a neutral judge in case the government wrongly withheld the permit. And the Court made clear that these “safeguards” were required not only when government imposed a prior restraint on speech, but whenever the government “makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon . . . a permit or license”—that is, whenever government imposes a licensing law on any constitutional right.
Freedoms the Constitution Guarantees
Those three “safeguards” are simple common sense, and they help defuse the many risks of permit requirements. Clarity prevents bureaucrats from exploiting vague criteria to empower themselves; deadlines prevent government agencies from stringing out the process to pressure or exploit the citizen; and a fair hearing prevents the government from simply wiping out individual rights in the guise of a permit requirement.
Yet despite saying that these safeguards must apply to all constitutional rights, judges have largely failed to follow through—and state and local officials have accordingly disregarded them. Nowhere is that more obvious than in the realm of gun regulations, which typically involve permits, with the criteria written in vague terms. The New York law, for example, only allowed people to possess firearms outside their homes if they persuaded the government that they had “proper cause” for doing so. The law did not define “proper cause,” although some state judges had said it required an applicant to prove that he or she faced some “extraordinary danger to personal safety.”
During arguments in the U.S. Supreme Court, justices zeroed in on the vagueness of this “proper cause” standard. Samuel Alito challenged New York’s lawyer to imagine a person who applies for a permit to carry a gun—“and they say: ‘Look, nobody has . . . said I am going to mug you next Thursday. However, here have been a lot of muggings in this area, and I am scared to death.’ They do not get licenses, is that right?” “Yes,” answered the state’s attorney. “If there’s [no threat] particular to them, that’s right.” So, Alito replied, “[that] mean[s] that there is the right to self-defense for celebrities [who can persuade bureaucrats that they have a special need] . . . but pretty much not for the kind of ordinary people who have a real, felt need to carry a gun to protect themselves.”
The Court struck down the law in a 6-3 ruling. “We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need,” wrote Justice Clarence Thomas. “That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense.” In a separate opinion, Justices Brett Kavanaugh and John Roberts emphasized the problems with a prior restraint on gun rights: New York’s law was “constitutionally problematic,” they wrote, “because it grants open-ended discretion to licensing officials and authorizes licenses only for those applicants who can show some special need apart from self-defense. Those features . . . in effect deny the right to carry handguns for self-defense to many ordinary, law-abiding citizens.”
A Free Society or a Permission Society?
As the New York gun law demonstrates, permit requirements can often transform constitutional rights into a form of permission—one for which the government can extract a high price. This is no less true of other kinds of licensing and permit requirements. Occupational licensing laws that require a person to be of “good character” have often been used to block unpopular minorities from practicing businesses—for example, during the McCarthy era, when states barred suspected communists from practicing law or other professions. Aesthetic “design review” laws are frequently used to prevent people from constructing homes if government officials don’t like the architectural style.
Or consider “certificate of necessity” laws, which require entrepreneurs to prove to bureaucrats that the public “needs” a new business before they can open their doors. When Kentucky businessman Raleigh Bruner wanted to start a new moving company, he discovered that in the Bluegrass State—as in many others—prospective moving companies must first prove to state officials that there’s a “present or future need” for a new mover. When state officials were asked how they determined the existence of consumers’ “future needs,” they answered that there were “no objective criteria” for doing so. Fortunately, a federal court found the state’s certificate requirement unconstitutional, and allowed Bruner to run his business. But similar laws remain on the books across the country.
These and other prior restraints on constitutional rights flout the “procedural safeguards” already required by Supreme Court precedent—thereby empowering bureaucratic officials at the expense of ordinary citizens. That has led the Goldwater Institute to propose the Permit Freedom Act—a state law that would require officials to comply with all three “safeguards” whenever it requires someone to get a permit.
But if state legislatures do not act, it is crucial for judges to insist on compliance with those safeguards at both the federal and state levels. Government can impose a prior restraint system in addition to the sic utere principle—but such restraints must be accompanied by the basic procedural safeguards of clarity, time limits and neutral judicial review in order not to transform individual rights into mere permissions that the government can grant or withhold at will. Whether it be firearms, free speech or the right to earn a living, any law that “grants open-ended discretion to licensing officials and authorizes licenses only for those applicants who can show some special need” is a threat to the Constitution’s promises of individual freedom.