THE ARBALEST QUARREL CLARIFIES CONFUSION OVER NEW YORK'S CONCEALED HANDGUN CARRY, AMMUNITION, AND GUN TRANSFER LAWS

NEW YORK GOVERNOR KATHY HOCHUL’S ATTACK ON THE FUNDAMENTAL RIGHT TO ARMED SELF-DEFENSE IS BOTH ILLEGAL AND UNWORKABLE*

New York's licensed firearms dealers and gun ranges are getting swamped with questions over confusing new laws concerning concealed handgun carry licenses, ammunition, and firearms “transfers” (that is to say, purchases, trade-ins, and giveaways).

In this article, we address these important and timely issues and provide clarification on what the law is.

On enactment and enforcement of New York’s Concealed “Carried Improvement Act” (“CCIA”), including recent amendments to the CCIA, licensed firearms dealers and those also operating gun ranges have unfairly suffered the brunt of attacks by frustrated New Yorkers who have seen constant and infuriating delays in their taking possession of firearms and ammunition.

These delays did not occur prior to the amendments to New York’s Gun Law which points to a disturbing fact: the Hochul Government’s changes to the Gun Law, purporting to comply with the June 2022 U.S. Supreme Court rulings in Bruen, did no such thing. In many ways, the Government’s amendments to the Gun Law made matters worse.

Hochul and the Democrat-Party-controlled Legislature in Albany simply gave lip service to the Bruen rulings.

As a matter of fact, the Hochul Government merely continues the policy established by her predecessor Andrew Cuomo.

The aim of this State Government in the Twenty-First Century is to continue the process of further constraining and constricting the exercise of the right of the people to keep and bear arms in New York, and to do so with increasing rapidity.

It is therefore business as usual for a New York Government that is virulently opposed to the Second Amendment of the Nation’s Bill of Rights.

And it isn’t only New York civilians who are facing frustrations and confusion. The new amendment is also impacting active-duty New York Police Officers. And both citizen civilians and police officers are all taking out their frustration on the wrong people: the Gun Dealer and Gun Range Owner.

This impossible situation is all by design and then enhanced and perpetuated by the Hochul Government.

Is there any way out of this morass?

Yes. But it is important to understand that Hochul’s recent “ammunition” amendment to the Handgun Law isn’t alone the cause of the problem. It is simply a reflection of the New York Government’s long-standing and deep-seated abhorrence of the fundamental right of the people to keep and bear arms and the Government’s contempt for those citizens residing in New York who are intent on exercising their right, regardless of the many obstacles placed in their path by the Government.

It is also important to understand that this new amendment isn’t a standalone provision. It is simply the most recent addition to the Hochul Government’s “Concealed Carry Improvement Act” (“CCIA”).

Moreover, the ammunition background check requirement is not something new that Governor Kathy Hochul and the Democrat Party-controlled Legislature in Albany dreamed up. It has been done before.

Hochul’s predecessor, Andrew Cuomo, tried to impose an ammunition background check system on New York firearms owners in 2013—ten years before the passage of Hochul’s CCIA.

Cuomo’s ammunition background check provision was written into the New York Safe Act of 2013. It didn’t pan out, then, just as it isn’t panning out now.

The Superintendent of the New York State Police could not get the damn thing to work even in 2014, one year after the Safe Act was implemented. And it was costing the taxpayer millions of dollars.

So Cuomo scrapped it, and the Superintendent of State Police and those working to get the thing operational breathed a sigh of relief.

Hochul never pointed this little matter out to the public when she resurrected Cuomo’s little scheme.

She, too, is having problems implementing this ammunition background check system—hence the delays in processing transfers of ammunition and firearms. Nothing has changed, ten years after Cuomo promulgated an ammunition background check provision and placed it in the Safe Act.

The difference between Hochul and Cuomo is that Hochul doesn’t mind the constant problems and obviously doesn’t care about the many people—citizen civilians, licensed gun dealers and owners of gun ranges, and even active duty New York Police officers voicing vociferous and incessant complaints, and doing so with justification.

If Hochul is going to create a mechanism of enforcement, then at least make the damn thing work. Otherwise, do away with it. But she won’t do that.

She won’t do that because it is obvious that Hochul relishes the delays. Otherwise, like Cuomo, she would have either scrapped the thing or would have urged the State Legislature in Albany to formally repeal the amendment or she would have placed continual pressure on the Superintendent of State Police who is tasked with getting this thing to work efficiently and effectively.

But, as far as we can tell, Hochul has done none of these things and has no plans to do so. She simply doesn’t care.

She doesn’t care because she is doing exactly what her wealthy benefactors, and what the Biden Administration, and what those citizens residing in New York, who voted her into Office, want her to do.

Hochul knows she is on safe ground politically on this, and that is all that matters to her—at least at this moment. Hopefully, this will change as increasing violent crime and the frustration of the public ramps up.

But, what about the New York Superintendent of State Police?

Does he care about the problems he is faced with in getting a notoriously difficult database up and running? This thing does, after all, sit on his lap.

Well, he doesn’t care either because, at this moment, there is no New York Superintendent of State Police.

Steven Nigrelli, the Acting Superintendent, and the most recent Superintendent, resigned his post on September 23, 2023, after Governor Hochul refused to make his position permanent, ostensibly because he faced employment harassment charges. See, e.g., the article published in the New York Post.

Nigrelli’s resignation took effect on October 6. See Spectrum 1 News.

So, who is the new acting Superintendent of State Police? Who can say? We don’t know. No news account to date we are aware of has reported an appointment of a new acting Superintendent of State Police. So, if Hochul did appoint someone, anyone, she failed to mention that person’s name. And, if she is considering an appointment, she hasn’t made that fact known either.

This only complicates matters, not only for the State Police that cannot get the NICS DATABASE working but for every New Yorker who suffers a delay in obtaining either a firearm or ammunition.

New York law now requires a Licensed Gun Dealer and Gun Range Owner to run NICS background checks only through the Superintendent of State Police and not directly through the Federal Government for firearms and ammunition transfers. And, keep in mind that, even if Hochul authorized Licensed New York Gun Dealers and owners of Gun Ranges to utilize the Federal NICS system for undertaking background checks, the FBI only does background checks involving transfers of firearms. They are not legally authorized, even if they were willing to do checks on those individuals who simply wish to purchase ammunition.

And this delay is affecting active duty police officers as well because they are not exempted from the NICS background check requirement either for the purchase of ammunition or for the purchase of firearms beyond Departmental issued firearms.

If there is a delay in running a check, everyone is, then, in the same boat.

But none of this negatively impacts your run-of-the-mill criminal element or murderous international cartel member that, thanks to Biden’s Open Border misadventure, has enabled millions of illegal aliens to take up residence in our Nation, and like a horrific viral infection, these illegals have coursed through the entire body politic.

The criminal element doesn’t bother with Hochul Gun Regime compliance matters, anyway.

If criminals get hit with a gun charge among other things, these noxious elements can expect a lenient judicial system to give them a slap on the wrist and send them on their merry way to create more mayhem for both police and the average citizen. And this is exactly what is happening in New York.

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*For those readers interested in the specific operative State Statutes and Municipal Codes, Rules, and Regulations, feel free to contact the Arbalest Quarrel, and we will be happy to answer your questions and provide you with the citations.

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WHAT OTHER QUESTIONS ARISE FROM HOCHUL’S “CCIA” THAT ARE NOT YET THE SUBJECT OF A LEGAL CHALLENGE?

One burning question concerns whether, under the CCIA, a valid concealed handgun carry license issued in a New York county or municipality, other than the City of New York, enables a license holder to carry his or her handgun for self-defense IN the City of New York.

The answer is an emphatic “no.”

NEW YORK CITY STILL REQUIRES A PERSON TO ACQUIRE A VALID CONCEALED HANDGUN CARRY LICENSE THAT CAN ONLY BE ISSUED BY THE NYPD LICENSE DIVISION IN ORDER TO CARRY A HANDGUN LAWFULLY IN THE CITY

The New York City Government will not recognize the legitimacy of a valid concealed handgun carry license issued by any other County Government or municipality in New York. And this matter has not, to our knowledge, been contested in a civil suit.

Handgun PREEMPTION LAWS that most States follow have no application in an Anti-Second Amendment State like New York.

This means that, as long as New York City, or any other county or city in New York, establishes rules and codes that appear legally consistent with the State’s Handgun Law—found in Penal Code Section 400.00 et. seq.—then those jurisdictions are free to create and implement new rules, codes, and regulations that are more detailed and potentially tougher than the State’s own Handgun Law requirements. This has always been true of New York City.

Even with the passage of the CCIA in July 2022, State law does not preempt the Rules of the City of New York on the matter of the City’s continuing refusal to honor the validity of concealed carry licenses issued by another New York jurisdiction.

Anyone who applies for a New York City Handgun Concealed Carry License must comply with the City’s stringent Handgun Rules, the NYPD License Division enforces those Rules rigidly. This means that if a person wishes to carry his or her concealed handgun in New York City, that person MUST first acquire a valid New York City-issued handgun carry license.

But, wouldn’t that mean, from a logical standpoint, that a rule, code, or regulation that’s more stringent than the State law, is, by logical implication, illegal by the very reason that such rule, code, or regulation is more restrictive than the State Law?

Of course. But when was a New York Gun Law ever internally consistent, let alone consistent with the Second Amendment of the Bill of the Rights of the U.S. Constitution?

The U.S. Supreme Court struck down New York’s “Proper Cause” requirement in Bruen, sure.

But this doesn’t legally prevent any jurisdiction in New York, be it municipal or county, from establishing its own Gun rules, codes, or regulations, applicable to that jurisdiction, that a prospective handgun carry applicant must follow.

New York City requires anyone who wishes to carry a handgun lawfully, in the City, to obtain a handgun carry license issued by the NYPD License Division regardless of the fact that a person may already possess a valid handgun carry license issued by another New York City or County.

DOESN’T THE CURTAILMENT OF THE PROPER CAUSE REQUIREMENT NEGATE THE NEED TO ACQUIRE MULTIPLE NEW YORK CONCEALED CARRY LICENSES

The fact that no jurisdiction in New York is allowed any longer to require a person to show extraordinary (“Proper Cause”) need as a condition for obtaining a handgun carry license, doesn’t legally prevent any city or county from requiring compliance with its own peculiar rules, codes, and regulations involving concealed handgun carry licenses.

In that case, a city or county can mandate that a person obtain a concealed handgun carry license for that jurisdiction, regardless of any other valid New York concealed handgun carry license he or she might happen to hold, applicable for the specific county or city. At the moment, New York City is the only jurisdiction, now as before, that requires a person to acquire a license to lawfully carry in the City. Nothing in the CCIA changes that old mandate.

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REMAINING NEW YORK GUN-RELATED QUESTIONS NOT PRESENTLY BEFORE THE COURTS

ANOTHER THORNY QUESTION FOLLOWING UPON THE ENACTMENT AND ENFORCEMENT OF THE CCIA: FOR A PERSON TO LAWFULLY CARRY A HANDGUN IN NEW YORK CITY, THE CITY GOVERNMENT STILL REQUIRES THAT PERSON TO ACQUIRE A VALID CONCEALED HANDGUN CARRY LICENSE ISSUED BY THE NYPD LICENSE DIVISION. IS THAT LAWFUL?

A New York Gun Dealer asked the Arbalest Quarrel the other day whether a person residing in another State can obtain a New York State handgun license.

The New York State Gun Law doesn’t assert categorically that a person must be domiciled in New York to obtain a handgun carry license. New York case law bears that out. So the consensus of opinion in the Courts to date is that a person need not be domiciled in New York to obtain a New York Concealed Handgun Carry License.

However, an out-of-state applicant must still comply with both the training and “Good Moral Character” requirements of the CCIA and other applicable State and Federal Statutes.

A SECOND THORNY QUESTION CONCERNS THE LEGALITY OF CHARGING A PERSON A FEE FOR THE PURCHASE OF A FIREARM AND/OR AMMUNITION.

The fees are assessed by the State Police, ostensibly to cover the cost of undertaking a background check on a person to verify the person is not under Statutory disability that would preclude the transfer of a firearm and ammunition to that person.

The fee for the transfer of a firearm has increased.

New York never before charged a fee for the purchase of ammunition. But it does so now. A fee of $2.50 is now assessed for the background check that the State Police now undertakes on the purchase of ammunition.

NOTE: The fee of $2.50 applies only to the background check itself, not to the number of boxes of ammunition a person purchases.

But, each time a person purchases a new box or boxes of ammunition, there is a new $2.50 fee imposed because the State Police is required to undertake a new background check on that person. It therefore behooves a person to purchase as much ammunition as he can afford at any one time to keep the fee at a straight $2.50, total, for each purchase.

A COUPLE MORE POINTS CONCERNING FEE ASSESSMENT ON FIREARM AND AMMUNITION TRANSFERS

First, the background check is charged to the seller of firearms and ammunition, not to the buyer. A seller must provide the State Police with a valid Credit Card. The State Police applies a charge to the seller’s credit card immediately. The seller doesn’t eat the charge but passes the fee onto the purchaser. This is perfectly legal.

This creates consternation, and that is understandable. But gun dealers and gun range owners have substantial expenses. They have to make a living too.

If there is a delay—the usual occurrence—in completing the NICS background check, the transferee must still reimburse the seller of the firearm or ammunition immediately even though the transferee doesn’t take immediate possession of the firearm or ammunition. That is one reason why a person—a civilian citizen or active duty police officer—gets upset with the Gun Dealer or the owner of the Gun Range. The transferee pays out of pocket immediately and gets nothing for his troubles as he must await the State Police processing of the transfer. That can take hours or even days.

Second, are both the fees and the dollar amounts of those fees lawful? They are. New York law specifies the State Police can assess fees for conducting NICS background checks and also provides a mechanism for determining what dollar amount is lawful.

A THIRD THORNY QUESTION PERTAINS TO THE LEGALITY OF AGENCY POLICY: DOES AGENCY POLICY HAVE THE FORCE OF LAW?

A third question is whether the Superintendent of the New York State Police can require a person who owns and possesses several firearms to show proof of having acquired a firearm safe to store those firearms.

A licensed New York Gun Dealer and the owner of a Gun Range has posed this question to us.

The New York State Police has required a person who holds several firearms on a restricted handgun premise license to present the State Police with a photograph of that safe.

This suggests that the person does not presently have a firearm safe, which is an expensive purchase, and would probably wish to defer the purchase of a safe if that were possible. It isn’t.

It is our reasoned belief that the State Police can require proof of purchase of a firearm safe once a New York premise license details possession of a certain (arbitrary) number of firearms on a premise license.

Is this true? If so, why?

The question is considered more a matter of policy than of law, according to New York Courts.

But Gun Policy, apart from State Statutes or County or Municipal codes, rules, or regulations, still operates with the force of law.

New York Courts have dealt with this issue and have so stated.

When a complainant contests a “Gun Policy, New York Courts have said that the complainant must prove that a given New York Gun Policy is “arbitrary and capricious” before a Court will strike that Policy down.

This follows from the “Primary Jurisdiction of Agency Rule” that Courts have followed since the U.S. Supreme Court issued its rulings in the Chevron case that came down decades ago, and a long line of cases that followed Chevron, since.

This Term, the U.S. Supreme Court has taken a renewed look at Chevron and is considering either constraining the Court’s prior rulings in that case or overturning the High Court’s rulings in that case outright.

The Biden Administration is apoplectic with rage over this.

But, at the moment Courts generally acquiesce to agency decisions because of Chevron. Agencies have tremendous discretion. And, so, failure to prove to the satisfaction of a Court that a gun “policy” is “arbitrary and capricious,”—a difficult standard to meet and the burden of which falls on the complainant—the policy will stand.

New York Police Departments are therefore given substantial freedom of action to create and implement policies directed at firearms licensing requirements.

This also follows from the fact—as New York Courts routinely make in their rulings, and which remains “Black Letter Law”—that, while the keeping and bearing of firearms remains a basic, fundamental, and indisputable Right, the licensing of a person to keep and bear arms remains a privilege.

The Arbalest Quarrel has pointed out that possessing a license (a Government bestowed privilege) as a condition precedent to the enjoyment of a fundamental, unalienable Right is not only logically fallacious and legally unsupportable, but nonsensical.

But, unless, or until, the U.S. Supreme Court has the courage to abolish the nonsense of allowing a State or Federal Government to license the exercise of a God-given right, the citizen will continue to suffer the consequences of the rudeness of State actors who refuse to countenance the sanctity of natural law, eternal rights.

And, the worst consequence by far is the insinuation of Tyranny upon us and our inability to effectively contend with that Tyranny if the citizenry is unable to bear arms to defeat it.

That, of course, is what a Treacherous Government’s concern is really all about—the power of the armed citizenry to thwart the will of the Tyrant who would dare subjugate the common man.

This has nothing whatsoever to do with ensuring “Public Safety” and preventing “Gun Violence.” Those things are nothing more than makeweights, mere cliché, that only a fool would believe.

And there are, unfortunately, plenty of them residing amongst us.

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