New York State's Handgun Law Under Fire in United States District Court

[FirearmsLawNews]

(Buffalo, New York) – New York State’s pistol permit law is under fire for not complying with the federal case law. The United States Supreme Court’s ruling in McDonald v. City of Chicago prohibits states from interfering with the rights of homeowners to carry handguns in their home.

The licensing officer in Erie County determined that Darryl and Michele Seibert of West Seneca New York were not eligible for general concealed carry permits. However, federal case law since the seminal Heller and McDonald decisions prohibit states from interfering with handgun possession in the home, provided that the homeowners do not have felony charges nor have been declared mentally incompetent.

Here, New York failed to provide the Seiberts with an application for a license to carry a gun within their home. Because the licensing officer did not exercise his discretion to furnish the Seiberts with a general concealed carry permit, they cannot not exercise their fundamental right to carry a gun in their home under the Second and Fourteenth Amendments.

Today, the plaintiffs filed a 42 U.S.C. §1983 civil rights lawsuit in United States District Court to force New York State to comply with the Heller and McDonald requirements, and further seeking to enjoin the state from enforcing its handgun law under New York Penal Law §400.00 as it applies to homeowners.

The name of the case is Seibert v. Schneiderman. For more information, please contact Tresmond Law at (716) 858.3115.

 

[SleazyRider]

I was under the impression that one could apply for either a "premises permit" or a concealed carry permit, the latter superseding the former with regard to privileges. Normally the carry permit includes restrictions, exempli gratia, hunting, target shooting, et cetera. So I'm confused: did they apply for a premises permit or a carry permit and which were they denied? Or perhaps I am in error.

And welcome to The High Road!

 

[FirearmsLawNews]

Thank you for the welcome!

While premises permits were at one time available, they were not made available to the plaintiffs in this case. Consequently, New York is not Heller compliant.

 

[splithoof]

This sounds to me like a gross civil rights violation, one that requires great sums of monetary compensation for the irreparable damage of such discrimination. Every single individual in the entire chain of authority, from the clerk that receives the applications, to the end decision maker, must be held personally liable. If it can be shown that they colluded to deny the plaintiff of their civil rights, nothing short of prison time, coupled with complete financial ruin could even begin to heal the wound.

 

[GJSchulze]

On my application for Monroe County there was a line asking for what reasons do you want a pistol permit. There was no separate form. It could be different for Erie County, I suppose. The key issue, I think, is that NY is a "may issue" state, but according to McDonald and Heller you have to be allowed to have a gun at home, so "may issue" for the home won't cut it.

 

[HexHead]

On my application for Monroe County there was a line asking for what reasons do you want a pistol permit. There was no separate form. It could be different for Erie County, I suppose. The key issue, I think, is that NY is a "may issue" state, but according to McDonald and Heller you have to be allowed to have a gun at home, so "may issue" for the home won't cut it.

Perhaps just fill in "Heller & McDonald" for the reason.

 

[USSR]

I was under the impression that one could apply for either a "premises permit" or a concealed carry permit, the latter superseding the former with regard to privileges.

There is no "premises permit" in NY State. There is simply a pistol permit which at the discretion of the local judge may grant you the right of concealed carry, or restrict you only to specific useages such as hunting, target shooting, etc.

Don

 

[Ryanxia]

This is very interesting. As USSR said there is no 'home permit' just one pistol permit. And I believe (could be wrong) that you need that permit to even purchase a handgun so it's not like in free states where you just go out and buy one. NY wouldn't be able to back peddle (not that they would) and say that you don't need a permit if you're only carrying it inside your own home.

Could you imagine the surge of new handgun owners in NY if they had to start issuing pistol permits even if it were just for their homes?

And then, it would seem an easier fight to argue 'I can have my gun in my home but I can't take it to the range to practice/train with it?'

 

[Midwest]

Could you imagine the surge of new handgun owners in NY if they had to start issuing pistol permits even if it were just for their homes?

And then, it would seem an easier fight to argue 'I can have my gun in my home but I can't take it to the range to practice/train with it?'

In NY State one cannot possess a pistol without a permit. Period

Someone moving in from another state cannot bring their pistols with them! They have to apply for a pistol permit.

Then six months to a year and half later (no I am not joking) they get the permit.
http://nyfirearms.com/forums/pistol-permits/53254-nassau-county-1-5-year-wait-now.html

Then they have to get their pistols that they owned in another state sent to an FFL in New York State so they may add the pistol (s) to the permit.

Furthermore this means if the husband has a permit to posses a pistol and the wife doesn't, she cannot touch that pistol!

Even if both husband and wife have pistol permits, the same pistol must be added to both permits in order so they can use the same firearm.

Some counties are unrestricted carry, some others restrict carry. Some counties the wait is obscene, while some other counties can be less than six months. Suffice to say that there is NO uniform standard across the state. Which might be a good thing if you happen to live in the right county.

Despite all the hassles, at least you have a chance to get "full carry" if you live in the right county. Unlike New Jersey, Maryland and Hawaii where it is virtually impossible to obtain a carry permit unless you are a security guard or politically connected.

For more information on the pistol permit process in New York State, please visit http://nyfirearms.com/forums/pistol-permits/index10.html

Nyfirearms.com is the "go to" site for anything firearm related in New York State.

.

 

[Kaeto]

Plus in New York while you may possess a Black Powder handgun without a permit. The moment you have the means of shooting it (powder, caps or a flint, and projectile) it must be added to your permit. This in spite of the fact that under federal law it is not even classed as a firearm.

 

[Midwest]

Plus in New York while you may possess a Black Powder handgun without a permit. The moment you have the means of shooting it (powder, caps or a flint, and projectile) it must be added to your permit. This in spite of the fact that under federal law it is not even classed as a firearm.

Correct, here is an interesting thread covering that very topic.

"is it legal for a non resident to bring a bp revolver?"

http://nyfirearms.com/forums/black-powder-guns/31031-legal-non-resident-bring-bp-revolver-nys.html


"its not considered a firearm until you possess the materials to make it fire. Once you have those materials it needs to be on your permit, or its a felony......"
.

 

[Ryanxia]

In NY State one cannot possess a pistol without a permit. Period

Which could work for their advantage in this case. It's because of the fact that there is only one permit that they have a good shot at winning this, similar to the California appeal where the panel from the 9th district court ruled that because open carry was prohibited, and conceal carry was the only way to legally carry, they had to have a reason to deny someone a permit and also have an appeals process.

 

[Midwest]

Which could work for their advantage in this case. It's because of the fact that there is only one permit that they have a good shot at winning this, similar to the California appeal where the panel from the 9th district court ruled that because open carry was prohibited, and conceal carry was the only way to legally carry, they had to have a reason to deny someone a permit and also have an appeals process.

We have to also change things in Maryland, Hawaii and especially New Jersey. One would get the impression that New Jersey is not even a part of the United States with all it's draconian and oppressive gun laws...and mentality. I have not noted any pro gun legislation being passed in that state...ever.

And regarding New York State, I have not run across any challenges to the "Sullivan Law" over the years. At least none so far that I have been able to find. It is amazing that they have been able to keep it in place for 103 years.
.

 

[tyeo098]

My family has a house in NY, but we are Virginia residents, and since we have VA DL's we cannot even register the pistols we want to bring.

Lunacy, all of it.