THE NYC MAYOR AND NYC POLICE COMMISSIONER SUGGEST THAT “NON-STATE RESIDENTS” CAN ACQUIRE A CONCEALED CARRY HANDGUN LICENSE. BUT IS THAT TRUE?

In early August 2024, the New York City Police Department notified the public of the adoption of new rules regarding “non-state-resident” applications for NYC concealed carry licenses.

What prompted “THE NOTICE OF ADOPTION OF  EMERGENCY RULES RELATING TO NON-RESIDENT APPLICANTS FOR CARRY LICENSES AND TO PURCHASE AND REGISTRATION AUTHORIZATIONS”?

NOTE: This “EMERGENCY” “NOTICE” was promulgated two-plus years after the publication of the Bruen decision. So, then, what was the nature of the present emergency?

“THE NOTICE” was signed and approved by New York City Mayor Eric Adams and by Police Commissioner Edward A. Caban.

The third paragraph of the first page of the lengthy seven-page document, sets forth, that,

Current NYPD rules do not contain formal procedures for applicants who do not reside in New York State, are not principally employed with New York City, and do not have their principal place of business in New York City. A process by which non-State residents can apply for a carry license will ensure that the City is able to properly regulate handgun ownership within NYC while also complying with the Bruen decision. This emergency rule sets forth standards to submit and evaluate applications for carry licenses made by these individuals, hereinafter called ‘non-resident’ applicants.

This response assumes something that few people have contemplated. But the assumption begs the question of whether the New York State Handgun Law, codified in the Penal Code under Section 400.00 et seq., allows for or bars out-of-state residents from procuring a valid NYC concealed handgun carry license.

Few people had bothered to give this matter any thought. Why should they? After all, City and State handgun licensing authorities throughout New York have routinely, even perfunctorily, for decades, denied the issuance of concealed handgun carry licenses to most New York residents who sought to secure one.

Very few people could acquire them because New York State law gave City and State handgun licensing officials near absolute discretion in issuing these licenses under the “PROPER CAUSE” standard.

And, if residents of New York have had such a difficult time securing a New York City concealed handgun carry license because they could not establish, to the satisfaction of the licensing official, an “extraordinary need” for issuance of a license to carry a handgun in public for self-defense, under the extremely stringent “PROPER CAUSE” standard, how on earth could an “out-of-state resident” ever hope to carry that burden of proof? Quite simply, that person could not.

But, in Bruen, in late June 2022, the High Court struck down New York’s “PROPER CAUSE” standard.

Henceforth, an applicant for a New York concealed handgun carry license would not have to establish an extraordinary need or any need for the issuance of such a license.

The Court made plain that the right of armed self-defense doesn’t stop at the doorstep of one’s home. So, a showing of one’s need to carry a handgun for self-defense is redundant, even nonsensical, because the right of armed self-defense is self-evident, true—a fundamental, unalienable, eternal right that does not and ought not require a person to formulate a reason for desiring to preserve his life and well-being.

It would be just a matter of time before out-of-state residents en masse clamor for a coveted NYC concealed handgun carry license.

But can they? Understand that there is nothing in the Bruen decision that suggests an out-of-state resident is on the same footing as a New York resident. So, if an out-of-state resident can at least theoretically acquire a New York State-issued or New York City-issued concealed handgun carry license, New York law must provide for that.

Historically, New York’s unabashed antipathy and animosity toward civilian ownership and possession of handguns is well-known and reflected not only in the Handgun Law of the Consolidated Laws of New York but throughout those Consolidated Laws.

However, a peculiar quirk in the State Handgun Law may suggest that an out-of-state resident can feasibly acquire a concealed handgun carry license.

The New York City Government must be assuming this, which explains why the Mayor and Police Commissioner are now scrambling to effectively deal with what they expect to be a large and steady influx of such applications from out-of-state residents.

But, what does the New York State Handgun Law say about non-state residents? It says nothing. The expression ‘non-state resident’ is neither expressly mentioned nor alluded to. The applicable section only refers to residents of New York.

Section 400.00 (3)(a) of the State’s handgun law says this:

Applications shall be made and renewed, in the case of a license to carry or possess a pistol or revolver, or to purchase or take possession of a semiautomatic rifle to the licensing officer in the city or county, as the case may be, where the applicant resides, is principally employed or has his or her principal place of business as merchant or storekeeper. . . .”

This statutory section, as explained in New York case law, was created to prevent a New York Resident, businessman, or employee from engaging in “forum shopping” ostensibly to enhance his chances of securing a handgun carry license in the State's most lenient locales.

Presumably, the State Legislature had not considered that an out-of-state resident might perceive Section 400.00 (3)(a) as a loophole, allowing him to obtain a coveted New York City handgun carry license. But that possibility raises another and perplexing question——

WHAT DOES THE EXPRESSION ‘OUT-OF-STATE RESIDENT’ MEAN?

The language of Section 400.00 (3)(a) does not expressly prohibit an out-of-state resident from attempting to procure a valid New York City handgun carry license, true. However, it is also true the statute’s silence does not logically imply that the New York State Legislature intended for Section 400.00 (3)(a) to include “out-of-state” residents, either.

More to the point, the language of Section 400.00 (3)(a) does not suggest a concern for non-state residents who do not have a connection with New York. Section 400.00 (3)(a) presumes a connection with the State.

This important distinction is blatantly ignored in the City’s August 2024 “NOTICE.” The City Government seems to be incurious of or altogether oblivious to the necessity for understanding the meaning of Section 400.00 (3)(a) apropos of ‘non-state resident.’

Since Section 400.00 (3)(a) is silent on this matter, is this to mean an out-of-state resident (WITH NO visible, genuine, if only minimal, legal contact with New York can), under a liberal interpretation of Section 400.00 (3)(a), still apply for a State or New York City concealed handgun carry license with a reasonable expectation of securing one, assuming that person isn’t under disability?

If so, this is an unintended consequence of poorly drafted handgun legislation that the Albany legislators never remedied through amendment. And it now comes back to haunt City and State Government officials.

Only a handful of New York cases allude to a potential problem for anti-Second Amendment New York Legislators and Government officials—a problem that would grow acute for them after Bruen.

Plainly, the New York State Legislature and New York City and State officials never anticipated a case like Bruen coming down the pike, even as Heller and McDonald should have alerted them to that eventuality.

To understand the Government’s blasé attitude, it helps to look at New York case law.

However, the few cases we have encountered all involve applicants who have some connection with New York, and that fact is a crucial factor in determining the disposition of all these cases.

The seminal case on the subject is Osterweil vs. Bartlett, 21 N.Y.3d 580; 999 N.E.2d 516; 977 N.Y.S.2d 153 (N.Y. Ct. App. 2013). The question on review was this:

“Is an applicant who owns a part-time residence in New York but makes his permanent domicile elsewhere eligible for a New York handgun license in the city or county where his part-time residence is located?”

The Court’s opinion is insightful in resolving the matter here, and we quote pertinent portions of it at length.

The United States Court of Appeals for the Second Circuit, by certified question, asks us to decide whether an applicant who owns a part-time residence in New York but makes his permanent domicile elsewhere is eligible for a New York handgun license in the city or county where his part-time residence is located. We answer the certified question in the affirmative, on the basis of the relevant statute. As we explain below, it is therefore unnecessary for us to decide the constitutional issues raised by appellant.

Appellant Alfred G. Osterweil, a resident of Summit, New York, a town in Schoharie County, applied on May 21, 2008 for a New York State pistol/revolver license pursuant to Penal Law § 400.00. The Schoharie County Sheriff initiated the required background investigations (see Penal Law § 400.00 [4]). On June 25, in the course of correspondence on an unrelated matter, Osterweil informed the Sheriff that he had bought a home in Louisiana and that he intended to ‘make that state my primary residence,’ while keeping ‘a vacation property here in Schoharie County.’ Osterweil asked whether he would still be eligible for a handgun license.

Osterweil's letter raised an important question. Penal Law § 400.00 (3) (a) provides that

‘[a]pplications shall be made and renewed, in the case of a license to carry or possess a pistol or revolver, to the licensing officer in the city or county, as the case may be, where the applicant resides, is principally employed or has his principal place of business as merchant or storekeeper’ (emphasis added).

At the heart of Osterweil's query is the distinction between residence and domicile. Generally, establishing residence ‘turns on whether [one] has a significant connection with some locality in the State as the result of living there for some length of time during the course of a year’ (Antone v General Motors Corp., Buick Motor Div., 64 NY2d 20, 30, 473 NE2d 742, 484 NYS2d 514 [1984]), whereas ‘[e]stablishment of a domicile in a [place] generally requires a physical presence in the [place] and an intention to make the [place] a permanent home’ (id. at 28), i.e., intent to remain there for the foreseeable future. It follows that an individual can have more than one residence, but only one domicile (see id.). Osterweil maintained a residence in Schoharie County, but could no longer claim it as his domicile. Therefore, if a New York domicile is required for a handgun license, the statute makes him ineligible.

The Sheriff forwarded Osterweil's application and query to respondent George R. Bartlett, III, Schoharie County Court Judge and also the county's licensing officer. Osterweil submitted an affidavit to Judge Bartlett, stating that he and his wife continued to play a role in ‘social, political and community affairs’ in Summit, even though they no longer made their primary residence there. He also cited the United States Supreme Court's recent decision in District of Columbia v Heller (554 US 570, 128 S Ct 2783, 171 L Ed 2d 637 [2008]), in which the Supreme Court struck down a District of Columbia law banning the possession of handguns in the home, holding that ‘the absolute prohibition of handguns held and used for self-defense in the home’ is unconstitutional under the Second Amendment (id. at 636; see also McDonald v Chicago, 561 US 742, 130 S Ct 3020, 177 L Ed 2d 894 [2010]). 

In May 2009, Judge Bartlett denied Osterweil's application for a handgun license, relying on Penal Law § 400.00 (3) (a) and an Appellate Division decision, Matter of Mahoney v Lewis (199 AD2d 734, 605 NYS2d 168 [3d Dept 1993]), which held that ‘as used in this statute the term residence is equivalent to domicile’ (id. at 735). Judge Bartlett further ruled that such a domicile requirement was constitutional, under Heller, as a lawful regulatory measure.”

‘We take a straightforward approach to this dispute. If Penal Law § 400.00 (3) (a) does not require domicile, then there is no need to decide the constitutionality of a hypothetical statute that requires domicile. The question concerning the meaning of the statute at issue—the question certified to us—must be answered prior to any question concerning its constitutional validity. This is not a case in which we are faced with an ambiguous statute requiring us to favor an interpretation that renders it constitutional over constructions that would invalidate it.’

In finding for the Plaintiff applicant for a handgun license, the Court opined further that,

Penal Law § 400.00 (3) (a) states that applications for a license to carry a pistol or revolver ‘shall be made and renewed . . . to the licensing officer in the city or county, as the case may be, where the applicant resides, is principally employed or has his principal place of business as merchant or storekeeper.’ The applicant's residence is referred to in the context of delineating the procedure whereby an individual files an application for a license. The applicant is instructed to apply to the licensing officer in the city or county where he resides (or is principally employed, etc.). The plain language of the statute is not consistent with the theory that the law requires an applicant to establish domicile as an eligibility requirement. Were it so, we would expect to see the manner of proof of domicile set out in the statute.

Moreover, the legislative history of the statutes that underlay Penal Law § 400.00 evinces an intent to ensure that an applicant for a handgun license applies in his place of residence, rather than an intent to limit licenses to applicants who make their domicile in New York. The residency language was added to the Penal Law by chapter 792 of the Laws of 1931. Former Penal Law § 1897 was amended by adding a subdivision, (9-a), which read as follows:

‘No license shall be issued by the police commissioner of the city of New York except to a resident of that city. Outside of the city of New York, no license shall be issued by a judge or justice of a court of record except to a resident of the county in which the office of such judge or justice is located. A license’ may be issued, however, to a qualified person principally employed in such city or county and to a merchant or storekeeper having his principal place of business in such city or county’ (L 1931, ch 792, § 4).

. . . [T]he residence language was introduced to prevent New York City residents from obtaining handgun permits in counties where, at the time, investigations of applicants were much less thorough than in the city. It  is therefore evident that the law was originally designed to ensure that licenses were obtained where applicants resided, and to discourage ‘forum-shopping,’ rather than to exclude certain applicants from qualifying at all.

The corresponding residence language in today's Penal Law § 400.00 (3) (a) is derived from former Penal Law § 1903, which was added in 1963 (L 1963, ch 136, § 8; see 1963 McKinney's Session Laws of NY at 155), and then adopted in the revised Penal Law provisions of 1965 (L 1965, ch 1030; see 1965 McKinney's Session Laws of NY at 1691). Appellant points to no legislative history from the 1960s suggesting that the relevant intent of the legislature was different then from what it had been in 1931. We conclude that there was no intent by the legislature to exclude applicants on the basis of domicile.

Finally, and most conclusively, Penal Law § 400.00 itself contemplates that licenses may be issued to individuals who do not make their domicile in New York. When a license to carry or possess a pistol or revolver ‘is issued to an alien, or to a person not a citizen of and usually a resident in the state, the licensing officer shall state in the license the particular reason  for the issuance and the names of the persons certifying to the good character of the applicant’ (Penal Law § 400.00 [7]). Since a handgun license may be issued, under the statute, to a person who is ‘not . . . usually a resident’ in New York State, it is clear that there is no requirement of domicile.

Because we hold that Penal Law § 400.00 (3) (a) does not preclude an individual who owns a part-time residence in New York but makes his permanent domicile in another state from applying for a New York handgun license, we have no occasion to decide whether a contrary law would be unconstitutional. 

Accordingly, the certified question should be answered in the affirmative.”

It is imperative to recognize the New York State Court of Appeals draws a distinction between the terms ‘residence’ and ‘domicile.’

A few lower courts wrongly did not draw that distinction, suggesting that if a person was not a permanent resident of New York, i.e., domiciled in New York, then that person would not qualify for a New York handgun license.

That led inevitably to an erroneous ruling.

The New York State Court of Appeals opined that it is wrong to conflate the term ‘residence’ with ‘domicile.’ But that does not mean the Court of Appeals suggests that a person with no connection with New York can secure a State handgun license, whether a restricted license or an unrestricted concealed carry license. The Court doesn’t deal directly with that issue because the issue wasn’t presented to it and the facts didn’t mandate consideration of it.

Still, through the reasoning of the Court, coupled with the language of the Statutory Section, Penal Law § 400.00 (3) (a), it is likely the Court would find, were it to consider the issue, rule that a non-state resident with no connection with New York cannot, under New York Law, lawfully acquire a New York handgun license.

But, without a case law ruling on this, we must construe, the matter, at best, as an open question.

At worst, extrapolating from Osterweil, we are inclined to infer that an out-of-state resident with no connection to New York is dead in the water. Such a person has, then, no hope of acquiring a valid New York handgun license of any kind, restricted or unrestricted, in the absence of bona fide, if only minimal, connection or contact with New York.

This inference is contrary to the conclusion to be drawn from the NYC “NOTICE.”

The New York City Mayor, Eric Adams, and the City’s Police Commissioner seem to assume that an out-of-state resident who has no connection with New York can feasibly obtain a New York City concealed handgun carry license. We do not see how the City Government can reasonably assume this.

However, the explanation is likely due to the Government’s erroneous conflating of the notion of non-state residents who have no connection with New York with non-state residents who have at least one tenable connection with New York.

Penal Law § 400.00 (3) (a) does not, to our mind, support this assumption of the New York City Mayor and the New York City Police Commissioner.

There is no mention of “non-state residents” in this Section or anywhere else in the New York statute (whether or not such non-state residents have any contact or connection with New York).

The New York Court of Appeals in Osterweil, though, did rule that non-state residents (those domiciled in another jurisdiction) but who DO HAVE A TENABLE CONNECTION WITH NEW YORK are able lawfully to acquire a New York handgun license.

Unfortunately, the City’s new “Emergency Rules” do not cite either Penal Law § 400.00 (3) (a) or New York State case law to support the tacit inference that non-State residents can lawfully acquire a New York City handgun license, even in the absence of any connection with New York.

This leads us to suspect that the Mayor and the Police Commissioner are being disingenuous.

It is true, of course, as pointed out by the New York State Court of Appeals in Osterweil, that a person does not have to be domiciled in New York to be able to qualify for a New York City handgun license. But, it is quite another thing to suggest, as the New York City Mayor and the Police Commissioner, do, that a non-state resident, who has no legal connection with New York, can still feasibly acquire a New York City ( and, by extension) State handgun) license.

It is a stretch to read Penal Law § 400.00 (3) (a) and the Osterweil case as assuming this. But, that is the implication to be drawn from the City’s “NOTICE.”

Perhaps the City is motivated by the money to be generated from such out-of-state resident applications even as it intends to deny all of those applications. If so, such deceit amounts to actionable fraud on the public.

The public should demand that the Mayor and the Police Commissioner explain cogently and comprehensively what they mean by the expression ‘non-state resident,’ given the expression’s inherent legal ambiguity.

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