In New York State Rifle & Pistol Association v. Bruen, the Supreme Court acknowledged that “shall issue” licensing systems for concealed carry are constitutional, at least if they truly remove all subjectivity from deciding who, exactly, gets to exercise their right to bear arms in self-defense. But the opinion also noted that even “shall-issue” regimes can run afoul of the Second Amendment if they include “lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.”
Is three weeks too long to wait for authorities to process an applications? Probably not. But three years? Yeah, that’s going to be a problem.
Several gun owners in Suffolk County, New York allege its taking at least that long for the county to process their carry applications. In a recent brief filed in U.S. District Court in support of a request for an injunction, attorneys for six gun owners and a firearms instructor complain that Suffolk County officials are dragging their feet in an attempt to block them from their Second Amendment rights for as long as possible.
Plaintiffs produced recorded admissions from SCPD and Plaintiffs’ Declarations establishing that SCPD’s licensing process takes 2-3 years – facts unchallenged by SCPD. The state’s 6-month statutory timeframe, implemented within SCPD’s 2-3 year process, is also unconstitutionally lengthy. [Penal Law § 400.00(4-a)]. As discussed in the Reply to the State below, where no wait time to possess and carry Arms existed in the Founding Era, delays exceeding 30 days violate the Second Amendment.
By refusing to accept the State PPB-3 for filing upon presentation, delaying fingerprinting, interviews, and photographs for 1½-2 years, SCPD deliberately delays the commencement of the State’s 6-month clock: “the NYS Application and fingerprints are completed (the date of the interview), is the date by which the six (6) month time frame as set forth in NYS Penal Law § 400.00(4-a) commences.” Aff. of Lt. Michael Komorowski at Bellantoni Reply Dec. Ex. 1, ¶¶5-8. Thus, SCPD is enforcing the state’s 6-month requirement – after imposing its own 1½ -2 year wait.
In other words, Suffolk County isn’t starting the clock on the state’s six-month time limit until after the county police have taken the applicants fingerprints. But those trying to obtain a carry license can’t just walk in to their local substation and say they need to get printed. They have to set up an appointment beforehand, and at the moment it looks like the earliest appointments available are well over a year away.
This isn’t the only complaint leveled against Suffolk County in Giambalvo v. New York, which also challenges many of the licensing provisions of New York’s Concealed Carry Improvement Act and their interpretation by the Suffolk County PD. For instance, attorneys for the plaintiffs allege that the department’s policy is to arrest unlicensed individuals who are taking part in the live-fire training mandated by the state in order to receive a carry license.
Penal Law section 265.20 (3-a), enacted through the CCIA, exempts unlicensed individuals who engage in live fire training to obtain a concealed carry license from criminal penalties. Under SCPD policy, however, any unlicensed person who engages in live fire training to satisfy the CCIA requirements will be arrested – a fact left uncontested by the County.
SCPD does not deny its “arrest policy”. Rather, it erroneously points to a separate (and preexisting) exemption (§ 265.20 (7-b)) to justify its arrest policy, but there is no correlation between the two, no language tying the implementation or validity of (3-a) to section (7-b), and no qualification that the provisions of section 400.00(3)(b) apply to (3-a).
Section (3-a) allows individuals (no requirement that an application be pending) to lawfully take the live fire training required by § 400.00, whereas while they are undergoing such training and are supervised by a duly authorized instructor. Section (7-b), however, allows “pre-license possession [of a handgun]” by a person who has applied for a license and pre-license possession, which generally applies to possession of a handgun for employment purposes. Plaintiffs are not seeking, and did not apply for, “pre-license possession” of a handgun under (7-b).
The request for the injunction in Suffolk County also argues that the county and state have failed to provide any historical analogues to New York’s “good moral character” requirement, in-person interviews by police, character references, social media disclosures, training requirements, as well as the six-month window the state has granted to issuing authorities. As attorney Amy Bellantoni pointed out to the court, “[w]here zero ‘wait time’ existed to possess and carry firearms in the Founding Era, a wait time of six months is unconstitutional.”
I would agree, and a two-to-three-year wait is an absolutely unconscionable and flagrant abuse of a fundamental right. If demand for permits is so high that Suffolk County now has a years-long backlog, then its up to the county to provide enough staff to process those applications in a timely manner. Using a staffing shortfall as an excuse to deprive residents of one of their fundamental civil rights shouldn’t fly in federal court, especially given that SCOTUS has already acknowledged that “lengthy wait times” for permits can infringe on that right. There’s no denying that applicants in Suffolk County are suffering from those lengthy waits. Now the question is what, if anything, will the courts do about it.