The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
An interesting state law decision today from the New Hampshire Supreme Court in Bach v. N.H. Department of Safety. New Hampshire is one of about 40 states that let any law-abiding adult carry a concealed weapon; but, like more than 30 of those states, it requires people to get a concealed carry license, which is generally available to law-abiding adults, whether or not they live in New Hampshire. Scott Bach is a New Jersey resident, but from 2004 to 2013 he had a New Hampshire nonresident concealed carry license. He let it lapse in 2013, but then tried to get it again.
In 2013, though, the New Hampshire Department of Safety promulgated new procedures for getting concealed-carry licenses—and those procedures required nonresident applicants to show their home-state concealed-carry licenses. In New Jersey, such licenses are very hard to get; the great bulk of law-abiding adults can't get them. (Our own David Kopel is cited as support for that statement about New Jersey practice.)
In today's decision, the New Hampshire Supreme Court held that these regulations violated the state statute; the state statute included no such requirement that would limit nonresident licenses, and the Department couldn't add such a requirement:
[W]e cannot disregard the fact that residents of certain states, like New Jersey, may simply be unable to satisfy state requirements for a license that differ from New Hampshire's statutory requirements. Because the rules at issue here effectively incorporate into New Hampshire's requirements for concealed-carry licenses the requirements established by other states for the issuance of concealed-carry licenses, the rules change the requirements of [the state statute], and thus, "add to, detract from, or modify the statute which they are intended to implement." Accordingly, we conclude that the challenged rules—requiring nonresidents to provide proof that they hold resident state licenses in order to obtain concealed-carry licenses in New Hampshire—are ultra vires [i.e., beyond the Department's powers] and, therefore, invalid.
Sounds right to me. Congratulations to Dan Schmutter (Hartman & Winnicki), who argued on behalf of Bach, and with whom I've had the pleasure of working on some First Amendment cases.