The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Earlier this evening, I shared a guest post from Professor Rob Leider, who explained that New Yorkers in rural areas may be worse off under the recently-enacted legislation. Here, I'd like to flag some changes made to the permitting process.
Let's start with the good news. New York struck the provision requiring "good cause." The rest of the statute is not-so-good news for gun owners.
First, the bill offers this definition of "good moral character"
good moral character, which, for the purposes of this article, shall mean having the essential character, temperament and judgement necessary to be entrusted with a weapon and to use it only in a manner that does not endanger oneself or others.
"Good moral character" is defined as "essential character." That's super helpful. Neither Justice Thomas nor Justice Kavanaugh identified "moral character" as a permissible ground for a "shall-issue" jurisdiction. This standard may not be much different than the subjective "good cause" standard. And in some regards, "moral character" is worse, because it is subject to such vast discretion.
Second, the bill requires that applicants meet in person with the licensing office for an interview. And the applicant must provide a host of information to the government:
(i) names and contact information for the applicant's current spouse, or domestic partner, any other adults residing in the applicant's home, including any adult children of the applicant, and whether or not there are minors residing, full time or part time, in the applicant's home;
(ii) names and contact information of no less than four character references who can attest to the applicant's good moral character and that such 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;
Presumably, the references will have to sign a sworn affidavit to this effect.
(iii) certification of completion of the training required in subdivision nineteen of this section;
(iv) a list of former and current social media accounts of the applicant from the past three years to confirm the information regarding the applicants character and conduct as required in subparagraph (ii) of this paragraph; and
(v) such other information required by the licensing officer that is reasonably necessary and related to the review of the licensing application.
To be clear, even if four character witnesses attest that the applicant has "good moral character," the government can use a person's social media account to "confirm" the person in fact does have "good moral character." I am fairly certain that social media, in general, brings out the absolute worst in a person. Plus, the government can request any other information that is "reasonably necessary and related" to the process, which means any information. Here, there is such vast discretion for official to deny a person's applicant. Eugene already commented on the First Amendment implications of California scrutinizing ideological viewpoints. Here, New York is performing a similar role under the guise of "good moral character."
Third, there is extensive classroom training requirement (16 hours):
An applicant shall complete an in-person live firearms safety course conducted by a duly authorized instructor with curriculum approved by the division of criminal justice services and the superintendent of state police, and meeting the following requirements:
(a) a minimum of sixteen hours of in-person live curriculum approved by the division of criminal justice services and the superintendent of state police, conducted by a duly authorized instructor approved by the division of criminal justice services, and shall include but not be limited to the following topics:
(i) general firearm safety;
(ii) safe storage requirements and general secure storage best practices;
(iii) state and federal gun laws;
(iv) situational awareness;
(v) conflict de-escalation;
(vi) best practices when encountering law enforcement;
(vii) the statutorily defined sensitive places in subdivision two of section 265.01-e of this chapter and the restrictions on possession on restricted places under section 265.01-d of this chapter;
(viii) conflict management;
(ix) use of deadly force;
(x) suicide prevention; and
(xi) the basic principles of marksmanship;
Plus, the applicant will need two hours in a live-fire range. And the applicant must score 80% on a written exam:
(b) a minimum of two hours of a live-fire range training course. The applicant shall be required to demonstrate proficiency by scoring a minimum of eighty percent correct answers on a written test.
Fourth, the government will audit records every month to determine if there is some reason to revoke the permit:
All records containing granted license applications from all licensing authorities shall be [periodically] monthly checked by the division of criminal justice services in conjunction with the division of state police against criminal conviction, criminal indictment, mental health, extreme risk protection orders, orders of protection, and all other records as are necessary to determine their continued accuracy well as whether an individual is no longer a valid license holder.
And as I read the statute, the permit shall be revoked immediately if a problem is found.
Fifth, it is a felony to possess a gun in a "sensitive location." Where is a sensitive location? Just about anywhere, unless the place expressly welcomes guns. (Such a business would immediately be boycotted and cancelled in the Empire State.) I'll provide commentary along the way.
For the purposes of this section, a sensitive location shall mean:
(a) any place owned or under the control of federal, state or local government, for the purpose of government administration, including courts;
(b) any location providing health, behavioral health, or chemical dependance care or services;
(c) any place of worship or religious observation;
Some houses of worship may wish parishioners to carry. But under the law, they cannot.
(d) libraries, public playgrounds, public parks, and zoos;
(e) the location of any program licensed, regulated, certified, funded, or approved by the office of children and family services that provides services to children, youth, or young adults…
(f) nursery schools, preschools, and summer camps;
(g) the location of any program licensed, regulated, certified, operated, or funded by the office for people with developmental disabilities;
(h) the location of any program licensed, regulated, certified, operated, or funded by office of addiction services and supports;
(i) the location of any program licensed, regulated, certified, operated, or funded by the office of mental health;
(j) the location of any program licensed, regulated, certified, operated, or funded by the office of temporary and disability assistance;
(k) homeless shelters, runaway homeless youth shelters, family shelters, shelters for adults, domestic violence shelters, and emergency shelters, and residential programs for victims of domestic violence;
(l) residential settings licensed, certified, regulated, funded, or operated by the department of health;
(m) in or upon any building or grounds, owned or leased, of any educational institutions, colleges and universities, licensed private career schools, school districts, public schools, private schools licensed under article one hundred one of the education law, charter schools, non-public schools, board of cooperative educational services, special act schools, preschool special education programs, private residential or non-residential schools for the education of students with disabilities, and any state-operated or state-supported schools;
No carrying in any school. Anywhere. The hypothetical from Bruen comes to life. Is the "campus" of NYU--that is, much of Greenwich Village--a "ground" owned or leased by the institution?
(n) any place, conveyance, or vehicle used for public transportation or public transit, subway cars, train cars, buses, ferries, railroad, omnibus, marine or aviation transportation; or any facility used for or in connection with service in the transportation of passengers, airports, train stations, subway and rail stations, and bus terminals;
All public transit is out. And streets with bus routes may also be out. Those are most streets in Manhattan.
(o) any establishment issued a license for on-premise consumption pursuant to article four, four-A, five, or six of the alcoholic beverage control law where alcohol is consumed and any establishment licensed under article four of the cannabis law for on-premise consumption;
(p) any place used for the performance, art entertainment, gaming, or sporting events such as theaters, stadiums, racetracks, museums, amusement parks, performance venues, concerts, exhibits, conference centers, banquet halls, and gaming facilities and video lottery terminal facilities as licensed by the gaming commission;
Just about all indoor places of public gathering are out.
(q) any location being used as a polling place;
(r) any public sidewalk or other public area restricted from general public access for a limited time or special event that has been issued a permit for such time or event by a governmental entity, or subject to specific, heightened law enforcement protection, or has otherwise had such access restricted by a governmental entity, provided such location is identified as such by clear and conspicuous signage;
Presumably, any street which is authorized for a parade, or other gathering, will not permit carry.
(s) any gathering of individuals to collectively express their constitutional rights to protest or assemble;
My goodness. This exception can swallow the entirety of New York state. Any place where two or more people gather to express their constitutional right becomes a "sensitive place."
(t) the area commonly known as Times Square, as such area is determined and identified by the city of New York; provided such area shall be clearly and conspicuously identified with signage.
And Times Square will become a 24/7 sensitive place. I'm sure New York City will stretch Times Square from Heralds Square to Central Park.
Sixth, a person has the burden to know he is in a sensitive location, even if there is no sign indicating that it is a sensitive location.
A person is guilty of criminal possession of a firearm, rifle or shotgun in a sensitive location when such person possesses a firearm, rifle or shotgun in or upon a sensitive location, and such person knows or reasonably should know such location is a sensitive location.
As if the categories above were not broad enough. Now, people have the extra obligation to know a place is "sensitive."
Seventh, you may think that it is safe to leave a gun in your car. Not exactly.
No person shall store or otherwise leave a rifle, shotgun, or firearm out of his or her immediate possession or control inside a vehicle without first removing the ammunition from and securely locking such rifle, shotgun, or firearm in an appropriate safe storage depository out of sight from outside of the vehicle.
The glove box will not suffice. You must use a "safe storage depository" with a key, keypad, or some other locking mechanism. Yes, to keep the gun in your car, you must unload it, and lock it. Then put it in a safe. And you have to keep the gun out of sight. Retrieving the gun in a timely fashion from your car is now extremely difficult.
Eighth, licenses are only valid for three years. Applicants will be required to jump through all of these hoops on a regular basis.
Ninth, there is now a database to record the sale of ammunition! As I read the statute, in order to purchase ammunition, a person will have to go through the national instant criminal background check system. Every trip to the range will now require a background check.
If I made any errors with this statute, please email me. I'm happy to post corrections.