New York gun retailers to Hochul: See you in court

New York gun retailers to Hochul: See you in court
Josh Anderson

New York Gov. Kathy Hochul’s newest gun control laws aren’t just having a chilling effect on the hundreds of thousands of New Yorkers hoping to exercise their right to bear arms in self-defense. The multitude of new mandates is also having an impact on those federally licensed firearm retailers across the state, and now a coalition of gun store owners along with a gun collector’s group in New York have filed suit in federal court seeking to have many of the new provisions thrown out on constitutional grounds.

The eight FFL holders involved in the suit argue in their initial filing that 31 interconnected statutes approved by New York lawmakers between May 30th and July 1st of this year constitute an abridgement of their rights under the Second, Fifth, and Fourteenth Amendments, and are seeking to halt enforcement of all provisions that are currently in effect as well as those that are set to be enforced starting in early December.

You can read the entire complaint here, but because the 31 separate statutes are a little too long to quote I’ll just provide a couple of the more egregious infringements that are being called into question, starting with all of the new “security” measures FFLs are supposed to comply with.

  • NY Gen Bus §875-b(1) – the “security plan,” including a “safe,” “vault,” or “secured and locked area on the dealer’s business premises” and the separate storage of ammunition. Originates in S.4970-A, p. 3. Takes effect on December 5, 2022.
  • NY Gen Bus §875-b(2) – a “security alarm system,” including installation and maintenance by a third party vendor, as well as specified placement of cameras with video recording devices with feed storage. Originates in S.4970-A, p. 3. Takes effect on December 5, 2022.14
  • NY Gen Bus §875-c – the prohibition of entry of persons under eighteen years of age without a parent or legal guardian. Originates S.4970-A, p. 4. Takes effect on December 5, 2022.
  • NY Pen §270.22, to be read with NY Exec §144-a – restriction against the sale of body vests, with exempted professions and persons upon declaration by the NYS Police. Originated in S.9407-B, p. 2. Eff. June 30, 2022.
  • NY Pen §§400.02(2) – requirement of an ammunition background check. Originated in S.51001, pp. 11-12. Eff. September 1, 2022.2

The laundry list of new rules and requirements for gun sellers (and gun owners) are a “minefield” according to the plaintiffs’s attorney; one designed to “trip-up the Plaintiffs to commit errors that will result in serious, misdemeanor and felony criminal charges, monetary fines, the loss of their federal and state licenses, and the closure of their businesses.”

With many of the security mandates surrounding gun stores set to take effect in a little more than a month, the lawsuit argues that the FFLs have had an “impossible level of financial burdens” thrust upon them; burdens that they’ll be unable to meet, which means the potential closure of their businesses and their loss of livelihood.

The lawsuit also notes that, unlike the ATF and its guidance (however vague and fuzzy it might be) to FFLs regarding federal rules and regulations, there’s no agency offering similar guidance to the FFLs about how to comply with the host of new state-level restrictions that have already taken effect or are coming on-line in the next few weeks.

The Defendants threaten criminal charges for violations of the new laws, focused on prosecution, in an attack that is the antithesis of developing, supporting, and encouraging lawful commerce in firearms and the dealers, pawnbrokers, gunsmiths, and manufacturers who are part of the only industry to support a product guaranteed and protected by the Bill of Rights

The Defendants offer no regulatory support, unlike BATFE, leaving Plaintiffs to struggle with cost estimates that are time-consuming and may prove fatally inaccurate, if and when the Defendants fulfill their regulatory responsibilities under the new laws.

The new laws, the Defendant Hochul’s animus, Defendants public pronouncements that differ from the laws, and the ticking of the clock towards the regulatory deadline of December 5, 2022 when the primary wave of business regulations becomes effective – all of which may result in closing their businesses and surrendering their commercial licenses, if there is no relief from the Court in the form of injunctive and declaratory relief. Such closure(s) would result in the loss of their livelihoods, wages or income, business value, property value, and satisfaction and pride that comes from participation in the lawful stream of commerce in firearms. Even with that relief, Plaintiffs have already suffered financial and other losses.

The lawsuit also outlines many of the ways that New York’s hastily conceived bills that were rushed into law have already impacted gun store owners, including the new concealed carry licensing standards announced on August 31st, just a day before they took effect.

Individuals are unable to obtain new concealed carry permits and thus are not becoming first-time handgun purchasers at Plaintiffs’ shops and at gun shows.

Individuals with concealed carry permits are required to renew those permits and cannot do so, also negatively impacting sales at Plaintiffs’ shops and at gun shows.

Plaintiffs have handguns in inventory that would normally be turning over at a regular pace, but which are now trapped in inventory due to a lack of customers and sales.

Additionally, customers who have current concealed carry permits are not coming into Plaintiffs’ shops and gun shows because the new laws are complicated, confusing, menacing, and starting to be enforced with Defendant NYS Police fanfare.

It’s an interesting case and I wish the plaintiffs well. It’s clear that New York’s most recent restrictions weren’t designed to “improve” the state’s gun laws (despite the fact that one gun control package is called the Concealed Carry Improvement Act) as much as they were to inhibit the exercise of the right to keep and bear arms. The plaintiffs argue that their ability to sell firearms is, by necessity, protected by the Second Amendment as well, and the regulations imposed by the state are anything but reasonable; instead crossing clearly over into infringement territory. That’s an argument that has had mixed success in federal courts to date, but in the post-Bruen legal environment the odds should be in the FFLs’ favor.