Delays, denials, and a new lawsuit: New York's background checks on ammo sales off to a rough start

AP Photo/Rich Pedroncelli, File

Buying ammunition used to be a relatively simple procedure in New York. You went into a gun store or other retailer, picked up what you wanted, paid for it, and walked out the door. Starting last week, however, all ammo sales must go through a background check conducted by the National Instant Check System with the New York State Police serving as a middleman between ammo sellers and the FBI’s background check system.


The new law not only makes it more expensive to purchase a gun and ammunition in the state (new background check fees on gun purchases add an additional $9 to each sale, while each background check for ammunition comes with a $2.50 surcharge), it’s causing massive delays for some buyers and headaches for firearm retailers, with some FFLs worried that customers will simply choose to shop out of state going forward.

“I hope the whole system dies if I am going to be brutally honest,” said Mary Vann, who owns Vann’s Gun Shop & Reloads in Plattsburgh.

Vann is not pleased with the state’s implementation of a new law aimed at curbing gun violence.

In New York, background checks are now required to buy ammunition, and background check requests will go through the state police instead of the FBI, possibly adding a delay in purchases. Fees are also being implemented to pay for the background checks– $9 on firearm purchases and $2.50 for ammo.

Vann says the rollout of the rules this week resulted in massive wait times.

“It took eight hours between a computer tech and me to play with their website to get their website working,” she said.

Vann believes it will hurt not just her business but other family-owned gun shops, too.

“There is less and less of them all the time because it is a lot of work… This, I think, would just kill anybody’s notion of having a family-owned gunshop,” Vann said.


Retailers aren’t just struggling behind the scenes. The background check process has proven to be unworkable for many customers, including the head of the New York Rifle & Pistol Association.

“The system isn’t working — they’re making mistakes,” said Tom King, executive director of the state Rifle and Pistol Association.

King said he was denied over the weekend when he filed an application for a background check to purchase .410 shotgun shells in Rensselaer County.

A person has 30 days to appeal if State Police deny the attempted sale, and police have 30 days to respond and explain the reason for the denial. Additional appeals are filed with the state attorney general’s office.

The length of appeal may vary based on the reason for denial, according to State Police.

“The New York State Police will continue to update the NYS NICS system in order to provide an accurate and timely response,” police said. “Again, while some transactions are processed immediately, others require more research.”

King, who’s had a pistol permit in the state for more than 40 years, is preparing to go through the appeal process. He cannot try to buy ammunition again until the appeals process concludes as the fall hunting season approaches.

“The only people that this is affecting is the lawful legal citizen in New York state,” King said Monday. “We’re the ones that are being discriminated against.”


Relief could be on the way, however. A new lawsuit filed late last week by two members of the New York legislature, a firearms instructor, and the head of New York State Firearms Association (a group that I confess I had never heard of before) is seeking to have the new background checks on ammunition thrown out by a judge as a violation of the Second Amendment. In their complaint, the plaintiffs allege that the new law unjustly poses unconstitutional costs and fees for purchasing ammunition, but that enforcement of the new statute has led to some untenable situations like the one King found himself in.

On September 14, 2023, Mr. [Aaron] Dorr attempted to purchase a box of 9 millimeter ammunition at WalMart in Canandaigua, New York, a licensed firearms dealer. He could not make the purchase because the statewide license and record database was not working and so the store could not legally sell ammunition. He then attempted to purchase 9 millimeter ammunition at Runnings in Canandaigua, New York, with the same result. But for the failure of the statewide license and record database, Mr. Dorr would have proceeded with the background check and purchase. But for what he believes will be further failure of the statewide license and record database, Mr. Dorr would make future purchases, though with far less frequency owing to the burden of enduring a background check. He is thus subject to and harmed by the statewide license and record database under the law.

Mr. David DiPietro has 100 rounds of spare ammunition of .22 Long Rifle caliber that he would like to sell to Mr. William Ortman for the price of $8.00, making the exchange in person. Mr. Ortman would like to make this purchase. However, if they engage in this transaction without involving a licensed dealer in firearms or registered seller of ammunition or Mr. DiPietro registering as a seller of ammunition, Mr. DiPietro will be subject to a fine of $1,000. N.Y. Penal § 400.03(7), (8). But for the laws at issue, Mr. DiPietro and Mr. Ortman would engage in this transaction.


While the National Instant Check System is supposed to be, well, instant (or at least close to it), it also wasn’t designed to process background checks on every single purchase of ammunition in a particular state. That’s not only why we’re seeing these delays, but also why they’re not likely to substantially improve anytime soon. And as Assemblyman David DiPietro and firearms instructor William Ortman point out, the law makes it a crime to engage in any person-to-person sales of ammunition, so when the system goes down and you want to grab a box of .22 LR or 9 mm from your friend or neighbor before hitting the range, you do so at your own legal peril.

New York is just the second state in the Union to impose background checks on all ammo sales, and the first state to do so is already facing intense legal scrutiny over its measure. California lawmakers decided not to use NICS but to establish their own background check system for ammo purchases, and it too has been plagued with problems; most notably the shockingly high rate of false denials. Tens of thousands of California residents have been unable to purchase ammunition even though they’re not prohibited by law from doing so, and as Second Amendment attorney Kostas Moros has pointed out, many of those who’ve been falsely denied still don’t end up purchasing ammunition, which suggests that even when their issue is fixed the ammo background check scheme is having a chilling effect.


It’s too early to tell if New York’s background check scheme is going to lead to the same widespread issues that we’ve seen in California, but the initial rollout has been far from smooth for either retailers or their customers. Some gun owners have the option of crossing state lines and buying their ammunition elsewhere (something easier said than done, admittedly, depending on where exactly those gun owners live), but retailers don’t have much of a choice at all: comply with these latest unconstitutional demands and risk losing a substantial part of your customer base or close up shop completely and lose your livelihood.


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