The Catch-22 in New York's new carry law

Seth Perlman

I know we’ve been writing a lot about what’s going on in New York over the past few days, but at the moment it’s the biggest battleground state in the fight over the right to keep and bear arms thanks to the atrocious new laws that were rushed through the legislature a few weeks ago and went into effect today. Between turning virtually all private and a good chunk of public property “sensitive spaces” where lawful carrying is banned (unless, in certain circumstances, where private property owners are allowed to permit the practice) and the overly burdensome and arbitrary licensing process, the new laws are flagrantly designed to inhibit the exercise of a constitutional right, and the legal battles over the constitutionality of the post-Bruen package of anti-gun laws are sure to reach the Supreme Court before long.

For now, though, a federal judge has declared that plaintiffs in a challenge to the new laws don’t have standing to sue, and the laws remain in effect. Could it be, however, that Gov. Kathy Hochul has created some new plaintiffs thanks to her interpretation of one portion of the new laws?

Since the passage of the anti-carry bills, virtually all issuing authorities have been operating under the premise that as long as someone applied for their permit before the new laws took effect on September 1st, their application would be processed under the state’s previous system; minus the “good cause” requirement that was shot down by SCOTUS in the Bruen case. I spoke earlier today with Niagara County Clerk Joseph Jastrzemski, who told me that the guidance his office received from stakeholders, including the Hochul administration and the state police, was that applications received through August 31st would be processed under the system, but starting September 1st the new rules would apply.

On Wednesday, however, Hochul announced that if an applicant had not received their license by September 1st, they would have to be processed under the new laws.

Over the past couple of weeks many counties have been overwhelmed by applicants rushing to submit their paperwork before September 1st, and there’s been plenty of news coverage about the massive increase in permit applications.

Jastrzemski said he received 1,600 applications in the month of August, which is more than the Niagara County received in all of 2021. Many other counties saw the same rush, and neither Hochul nor the New York State Police ever contradicted the many statements by county clerks and sheriffs who stated that the new rules wouldn’t be enforced against those who turned in their applications before September 1st until the governor spoke up just a few hours before the new laws took effect.

Even as Hochul was announcing her last-minute interpretation, the New York Police Department was telling reporters that applications dropped off yesterday would be processed under the old system.

A member of the NYPD’s legislative affairs unit told City Council members during a hearing Tuesday that anyone who applied during the two-month gap would avoid the new training requirement and would not have to submit social media information. Neither would they have to provide “proper cause,” since the provision was struck down — giving recent applicants a path to a conceal-carry permit that is unprecedented in recent years.

“That’s a source of concern,” Council Member Erik Bottcher said during the hearing Tuesday.

“You’re going to have thousands of people with conceal carry licenses who did not have to get trained, who did not have to have their social media reviewed,” he said, referencing the statewide numbers.

Police leaders said the recent applicants still need to abide by all of the NYPD’s existing rules, which includes an in-person interview. And in New York City, they will need to take the training when they reapply for a license in three years. (Permits need to be “recertified” every five years in most areas outside New York City, but applicants for recertification don’t have to undergo training.)

“We have very robust licensing requirements to begin with,” said Juliane Farruggia of the NYPD’s legislative affairs unit. “We already required references … we already took a look at social media accounts.”

The NYPD handles gun permits in the five boroughs, while local county clerks and sheriffs dole them out elsewhere in the state, according to Hochul.

Asked Wednesday about those who applied during the two-month gap, the NYPD reiterated that anyone applying before the deadline would be subject to the old requirements.

The governor’s office, meanwhile, pointed POLITICO to a clause in the law stating that training would be required for anyone who receives their license after Sept 1.

Here’s the thing. There was no way for any applicant to go through the 16 hours of training required starting today, because the state didn’t release the guidelines for that training until late last week.

Firearms instructors just got the basic guidelines from New York State on the requirements for the training on Friday. They now have to develop the curriculum, find the staff and schedule the classes. “We are still looking at those details [how much the class will cost] but it’s going to be somewhere around $400 because we have to pay staff, we have to pay for the classroom, we also have to pay for range-use and we gotta pay for materials,” explains Dave Jenkins, an instructor and the owner of Rochester Personal Defense.

Jastrzemski tells Bearing Arms that his office didn’t even receive the new application forms from the state until late Wednesday afternoon, so it would have been impossible for anyone to apply under the new rules before September 1st anyway. 

Hochul’s interpretation of the new law requires anyone and everyone whose permit was being processed but had not yet been approved when the clock struck midnight on Thursday to move to the back of the line and start the whole ordeal all over again; this time with even more intrusive and infringe-y mandates to boot. Given that some counties are already seeing wait times to apply under the new rules stretch until October of 2023, someone who applied on August 30th may not be able to receive their permit until well into 2024. I’d say this governor-imposed delay is squarely an undue burden on the exercise of a fundamental right.

That is, if any counties actually follow Hochul’s declaration. Jastrzemski tells Bearing Arms that his office will continue to follow the guidance he previously received from stakeholders, and that means as long as the application was received by August 31st the new rules don’t apply. My guess is that the vast majority of red counties will follow suit, and we may even see some Democratic county clerks ignore Hochul’s edict. But there’ll probably be some jurisdictions that will abide by the governor’s edict, and in doing so might very well create a new path to challenging the constitutionality of the carry laws now in effect.