As Court Slams Door on One Obnoxious Gun Law, NY Enacts Fresh Version

In maneuvers highly reminiscent of the frantic enactment of the “SAFE” Act in 2013, “rushed to a vote only hours after it was printed,” Governor Kathy Hochul signed New York’s latest gun control bill into law on the same day the lengthy bill text was made publicly available.

Legislators in the Empire State passed S.51001/A.41001 as a furious reaction to the U.S. Supreme Court decision on June 23, New York State Rifle & Pistol Association Inc. v. Bruen, striking down a New York gun licensing law as unconstitutional.

New York’s law made it a crime to possess a gun without a license outside the home, and required that an applicant establish, to the satisfaction of licensing bureaucrats, that he or she had an extraordinary need for a carry license (“proper cause”). This, and other license requirements, made it very difficult to obtain and keep an unrestricted carry license.

In Bruen, the Supreme Court held that the Second and Fourteenth Amendments protect a constitutional right of ordinary, law-abiding individuals to carry a firearm in public, outside the home. States cannot altogether prohibit the public carry of arms protected by the Second Amendment, and requiring an applicant to show an atypical need to qualify for a license violates this right.

Instead of recognizing that the era of the last few “may issue” licensing laws is now officially over – as New Jersey and Maryland have done – New York State officials have doubled down on defying the ruling, and continue to conflate law-abiding license holders with the unlicensed scofflaws behind the surge in violent crime.

After calling the Court’s decision “reckless” and “senseless,” Gov. Hochul announced that the new law “is devised to align with the Supreme Court’s recent decision,” even though it will “bolster restrictions on concealed carry weapons” in response to the anticipated “increase in licenses and in the number of individuals who will likely purchase and carry weapons” now that the old law has been invalidated.  Others were less subtle. Lieutenant Governor Antonio Delgado said, “With this action, New York has sent a message to the rest of the country that we will not stand idly by and let the Supreme Court reverse years of sensible gun regulations.” A co-sponsor of the law dropped any pretense of compliance with the Bruen ruling entirely: “Today, we put the pieces back together and fixed what the Supreme Court destroyed.”

The new law eliminates the “proper cause” requirement for an unrestricted carry license, but expands “good moral character” and adds a new interview process, a new training certification, and new disclosure obligations. The required training is a minimum of 16 hours, to include two hours of live-fire training, using a state-approved curriculum and an “authorized” instructor. Applicants must score at least 80% on a written exam, and obtain an as-yet-unspecified score on the live-fire test. There are no exemptions, and existing licensees cannot renew (recertify) their license without satisfying this training requirement.

As part of the licensing process, an applicant must meet with a licensing officer for an “in person” interview – an interesting addition given the COVID restrictions we’ve seen over the last two and a half years. The applicant must give the officer at least four character references, who can “attest to the applicant’s good moral character” and that the applicant “has not engaged in any acts, or made any statements that suggest they are likely to engage in conduct that would result in harm to themselves or others.” The applicant must provide the names and contact information for any spouse or domestic partner and all adults who cohabit with the applicant, and disclose whether minors reside with the applicant. A list of the applicant’s “former and current social media accounts” from the past three years has to be turned over to the licensing official, and the official is authorized to require that the applicant provide “any other information” that the official feels is relevant to the application (perhaps passwords to private setting social media accounts, evidence of “economic stability” or income sources, or whether the person is a supporter of gun rights groups – after all, New York’s Attorney General has filed a lawsuit to dissolve the NRA). All of this is presumably used to assess suitability for a license, although there are no objective, clear standards regarding the weight of any information, or limits on bureaucratic discretion. 

A “good moral character” requirement applies to all license category applicants, defined as “having the essential character, temperament and judgment necessary to be entrusted with a weapon and to use it only in a manner that does not endanger oneself or others.” How this is determined is also uncertain.   

If this wasn’t sufficiently problematic, the bill authorizes local governments to enact their own licensing requirements, provided that these requirements are “more restrictive” than the state law.

Another new component of the law is the concept of “sensitive” and “restricted” locations, where carrying a gun, even by a licensed individual, is a crime, unless the person is a police officer, a registered security guard “granted a special armed registration card,” or one of the few other exempted persons. Gov. Hochul had expressed her opinion that “[i]t’s hard to find a place that’s not sensitive, in my judgment.” Consistent with that, the list of “sensitive locations” in the bill covers 20 broad categories of both public and privately-owned areas.

One such location is “any place used for the performance [sic], art entertainment;” another is “any gathering of individuals to collectively express their constitutional rights to protest or assemble,” regardless of whether this occurs with a permit, by consent of the property owner, or any notice. “Restricted location” is based on an oddly-worded presumption regarding private property, where the person knows or reasonably should know that the owner or lessee “has not permitted such possession by clear and conspicuous signage indicating that the carrying” of guns is permitted, or given express consent. However, this “opting in” doesn’t apply to private property for which state legislators have already made the irrevocable decision on behalf of the owner or lessee, and designated the place as a “sensitive location.” 

The Supreme Court indicated some “sensitive places” were constitutionally permissible but was clear that such places cannot be defined generally as any large geographic area (“Manhattan”), or as public spaces where people gather, where law enforcement and public safety personnel are presumptively available. This approach “would eviscerate the general right to publicly carry arms for self-defense.” Given the vague wording and wide scope, a compelling argument exists that New York’s new law has crossed that line.      

The law establishes a new state “point of contact” background check system, to handle background checks for gun licenses and renewals, “assault weapon” registration, ammunition sales, and NICS checks for “the purchase of firearms and ammunition” under federal law. The law also reactivates the ammunition sales database that was part of the 2013 SAFE Act but was never operational, and makes ammunition sales subject to the new state “point of contact” system.  

The state law on gun storage has been amended to make it more restrictive, by raising the age limit in N.Y. Penal Law § 265.45 from sixteen to eighteen, and adding a new subsection on vehicle storage. No person may store or keep a gun out of his or her immediate possession or control in a vehicle, unless the ammunition has been removed and the gun is securely locked in an “appropriate safe storage depository” (not the glove compartment), not visible from outside of the vehicle.

The law amends the definitions of “rifle” and “shotgun” in NY Penal Law § 265.00(11) and (12), to include “those using obsolete ammunition not commonly available in commercial trade.” In the case of a “rifle,” this now adds those that “load through the muzzle… including muzzle loading rifles, flintlock rifles, and black powder rifles.” Likewise, the “shotgun” definition has been expanded to cover both rifled and smooth bore guns, and those that “load through the muzzle and fire[] ball shot with each discharge, or loading, including muzzle loading shotguns, flintlock shotguns, and black powder shotguns.” 

Governor Hochul – who days ago struggled to articulate any connection or data tying more licenses to rising crime and explain just how the Bruen ruling “senselessly send[s] us backward and put[s] the safety of our residents in jeopardy” – responded to the expected legal backlash against her legislation with the usual stale and empty language. “Governor Hochul signed landmark legislation to save lives and combat the gun violence epidemic by carefully regulating access to concealed weapons, protecting public safety while abiding by the Supreme Court’s ruling in the Bruen case. We have no further comment on pending litigation.”