Gun Rights, Abortion Bans, and the Mysterious “Right to Travel”

The constitutional “right to travel” is having a moment.

Over the decades, the U.S. Supreme court has confirmed the doctrine, which generally protects U.S. citizens’ ability to travel state-to-state without legal hindrances or requirements, in cases that successfully challenged government benefits tied to length of state residency, including welfare benefits. At the same time, the Court has sometimes upheld distinctions based on length of residence, such as durational residency for obtaining a divorce in the jurisdiction.

Despite these decisions, the scope and application of the right remain mysterious. The phrase “right to travel” does not appear in the Constitution. Courts have variously attributed the right to the Privileges or Immunities Clause of the 14th Amendment, the Privileges and Immunities Clause of Article IV, and fundamental principles implicit in the union of states. The right to travel does not guarantee free train tickets or a driver’s license on demand. But as Chief Justice Rehnquist noted in his dissent in Saenz v. Roe, most of the Supreme Court’s right to travel cases involved residency, not travel.

Outside of durational residency requirements, there is general agreement that the right to travel, whatever its source, encompasses a right to transit across state lines and to be treated as “a welcome visitor while temporarily present in another state.” That was the scenario Justice Brett Kavanaugh envisioned in his concurrence in Dobbs v. Jackson Women’s Health Organization, when he summarily asserted that the right to travel would be violated if a state barred its own residents from crossing state lines to obtain abortions.

Of course, it turns out that it’s not that simple. In the wake of Dobbs, some states have enacted “abortion trafficking” laws, aiming to prevent people from helping someone cross state lines to obtain an abortion. These laws can include driving someone or even providing a medical referral. In addition, some states that ban abortion have attempted to apply their laws to providers outside of the state. Eighteen states have enacted “shield laws” to protect providers from the extraterritorial reach of states that ban abortion, but these may yet be tested in court.

Recently, the rights of short-term visitors were explored in Massachusetts v. Marquis, in which Massachusetts’s high court found that visitors to the state must comply with special gun licensing laws for nonresidents. 

Marquis is a textbook example of the right to travel doctrine. The defendant, a New Hampshire resident, was driving to his job in Massachusetts when he was involved in a car accident in that state. The police on the scene found that he was carrying a firearm. New Hampshire law allows gun owners to carry firearms open or concealed without a carrying license — but he lacked the nonresident gun license required by Massachusetts and was charged with unlawful possession of a firearm. In response, he argued that the Massachusetts nonresident license requirement violated both his Second Amendment rights and his constitutional right to travel.

The Massachusetts high court relied on the U.S. Supreme Court’s recent rulings in New York State Rifle & Pistol Association v. Bruen and United States v. Rahimi to conclude that the nonresident licensing requirement was permissible under the Second Amendment. The court observed that Massachusetts residents — not just non-residents in the state — are also required to obtain a license. The court held that the licensing regimes comported with states’ ability to deny licenses when — as recognized in Bruen and Rahimi — the state determines that an applicant poses a risk to public safety. According to the Massachusetts court, for residents and nonresidents alike, “the licensing authority must verify that the applicant satisfies the statutory requirement of being neither ‘prohibited’ nor determined ‘unsuitable’ within the specified meaning” of the statute. In both cases, the Massachusetts law creates a “shall issue” regime, which limits discretion to deny an application.

Finding that the licensing requirement did not per se violate the Second Amendment, the court turned to the argument that the differential treatment of residents versus nonresidents violated the New Hampshire driver’s right to travel or, relatedly, the federal Equal Protection Clause. The material differences between the resident and nonresident licensing processes appeared to be the processing times for the license (up to 90 days for a nonresident, and up to 40 days for a Massachusetts resident), different grace periods for license renewal, and shorter durations of the licenses (one year for a nonresident, and five years for a resident). Because the driver had never applied for a nonresident license, he mounted a facial challenge to the law, arguing that there were no circumstances in which the law would pass constitutional muster.

The state court conducted separate analyses under the right to travel and the Equal Protection Clause but reached the same conclusion with respect to each claim. According to the court, because the law did not violate fundamental Second Amendment rights and there was no evidence that it was motivated by discriminatory intent against nonresidents, rational basis was the appropriate standard of review. Under rational basis review, the government must show only that legislation is rationally related to a legitimate government interest — an easy hurdle to clear.

The court explained that the longer processing time for a nonresident application was rationally related to the need to obtain the records from a sister state to assess whether the applicant met the legal requirements of suitability that applied to both residents and nonresidents. The shorter duration of the nonresident license was likewise related to the need to maintain regular contact with the nonresident’s state to assure continued eligibility. And the absence of a grace period related to the shorter duration of the license. The nonresident licensing requirement thus passed constitutional muster under both the right to travel and the Equal Protection Clause.

While this seems to be a straightforward application of the right to travel, the Marquis case does include a twist: the Massachusetts court applied rational basis review based on its conclusion that Second Amendment rights were not implicated and that there was no evidence of discriminatory motive directed against nonresidents.

Certainly, nonresidents are not a suspect class — like classifications based on race, religion, or national origin — dictating more rigorous scrutiny under the equal protection claim. But federal case law indicates the right to travel is itself a fundamental right, which supports heightened scrutiny regardless of whether other rights are impinged or there is proof of discriminatory intent. In other words, the differential treatment of residents and nonresidents may itself trigger heightened scrutiny.

Having lost in the state’s highest court on a federal claim, the plaintiff in Marquis could seek review before the U.S. Supreme Court. The state court’s application of rational basis review may leave its opinion vulnerable on appeal, though the Massachusetts’ nonresident gun licensing scheme may also be upheld under a higher standard of scrutiny. In any event, with increased attention to the right to travel in the abortion context, the U.S. Supreme Court may recognize the need to clarify the scope of this mysterious right.

Martha F. Davis is a university distinguished professor at the Northeastern University School of Law.

Suggested Citation: Martha Davis, Gun Rights, Abortion Bans, and the Mysterious “Right to Travel”, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Mar. 20, 2025), https://statecourtreport.org/our-work/analysis-opinion/gun-rights-abortion-bans-and-mysterious-right-travel