Expert: Robert P. Firriolo - 12/14/2009

Question
QUESTION: I live in Erie County; I put in my PP application on March 4th 2009. As of today I am told, I should expect an answer in 4 to 5 more months. I don't mind waiting if it is a reasonable and fair time period. My question is, is this a just and reasonable time period or does it cross the line into being an unjust delay of my 2nd amendment rights?  Can the county government sit on applications for any time period?

Thank you,

Hans


ANSWER: "Is this a just and reasonable time period or does it cross the line into being an unjust delay of my 2nd amendment rights" is a fair question but not one that can be answered with certainty right now. It is something courts will have to decide, and the law is certain to be changing in the months and years to come.

First, the US Supreme Court is considering whether the Second Amendment applies to the states.  Assuming that the Second Amendment is "incorporated" to the states by the US Supreme Court (or if the similar provision in NY Civil Rights Law is given effect), I expect there will be numerous challenges to state and local gun laws across the country, including in New York.

Next, to try to predict whether a given gun law or licensing practice will be found constitutional, we'd need to know the standard of review that will be applied to challenges of gun laws. We don't know that, and the current case before the US Supreme Court has not even raised the standard of review issue. So, it is extremely hard to predict which laws will be overturned and which will be allowed to stand without further guidance from the Supreme Court.

Some of the challenges will obviously be easier than others. For example, the license fees in NYC and Nassau County run into the hundreds of dollars, and would probably be found to unduly burden the right regardless of the standard of review. However, waiting several months for a license COULD be justified if the government can establish that the amount of time is reasonable and necessary. Again, this is just speculating because we don't yet know what standard of review will be imposed on gun laws. It will probably take more than one trip to the US Supreme Court before we know which kinds of gun control laws are constitutional and which are not.

To answer your second question, no, the county can't just sit on the application. They have to act within six months or give you a written reason for the delay. State Penal Law 400.00 4-a says: "Except upon written notice to the applicant specifically stating the reasons for any delay, in each case the licensing officer shall act upon any application for a license pursuant to this section within six months of the date of presentment of such an application to the appropriate authority. Such delay may only be for good cause and with respect to the applicant. In acting upon an application, the licensing officer shall either deny the application for reasons specifically and concisely stated in writing or grant the application and issue the license applied for."


---------- FOLLOW-UP ----------

QUESTION: Since a 6 month time period has elapsed, I am with in my right to ask for a written explanation as to why I have not received a yes or no answer form Eire County pertaining to a pistol license?   

Would it be a wise course of action, in your opinion?

What are some justifiable reasons for a delay?

Thank you,

Hans


Answer
You are certainly within your rights to ask for a written explanation. In fact, the county was required under the law to give you a written notice "specifically stating the reasons for any delay" once six months elapsed from the date your application was submitted.

I cannot give you advice as to whether it is "wise" to contact the county.

"Justifiable reasons" are not defined in the law. Problems with conducting the background searches, lack of cooperation by references, and the need for a detailed investigation of past criminal charges or mental health records are just some examples of things that could delay an application. Regardless, the county is obligated to tell you why there is a delay.