Brendan J. Lyons
September 27, 2023
ALBANY — Gun store owners in New York said there have been glitches in the state’s processing of background checks for ammunition purchases under a law that went into effect this month — one of many new firearms statutes enacted last year that are being challenged in litigation that will be the subject of a conference Oct. 6 by the U.S. Supreme Court.
The laws were enacted by the Democrat-controlled state Legislature a year ago in response to a ruling by the Supreme Court that threw out New York’s century-old rules governing the ability of someone to carry a concealed firearm. The Legislature’s action was part of a response to that ruling in an effort to increase scrutiny and heighten the requirements for someone purchasing or carrying a gun or buying ammunition.
Critics have said the new laws were enacted as an attempt to make an end-run around the Supreme Court’s earlier ruling.
A gun store owner who asked not to be identified on Wednesday said in one instance this month a background check for a retired high-ranking State Police official who sought to purchase ammunition was denied. In another case, Tom King, president of the New York State Rifle and Pistol Association, was initially declined without explanation.
According to State Police, some of the potential reasons for someone failing a background check needed to purchase ammunition could be that they are a fugitive, a convicted felon, are in the United States illegally or under a non-immigrant visa, have been committed to a mental health institution or have been dishonorably discharged from the military. None of those prohibitions are applicable in King’s case.
“I got denied and then eventually the next day, or maybe the day after, they rescinded it (and) totally outside the appeals process,” King said. “I think it might have been about a Spectrum News interview we did saying we were going to start a lawsuit against them.”
A spokeswoman for the State Police issued a statement saying the National Instant Criminal Background Check System “processes transactions immediately. However, some responses will take longer than others depending on the amount of research required.”
She said there is also an appeal process for someone whose background check does not get approved. In the case of the retired State Police member, the system listed “miss click” as the reason for the denial.
“The New York State Police will continue to update the NYS NICS system in order to provide an accurate and timely response,” said Deanna Cohen, a spokeswoman for the State Police. “Again, while some transactions are processed immediately, others require more research.”
Under the appeals process, a person rejected as a result of a background check has 30 days to file an appeal. The State Police then have 30 days to notify that person why they were turned down. The person then has another 30 days to file an appeal with the state attorney general’s office.
Republican lawmakers have hailed the decision by U.S. Supreme Court Justice Clarence Thomas to conference the case with the full court. But that is no guarantee that the Supreme Court will take the case; even if the case is taken up, it could take years to adjudicate.
The case, filed in U.S. District Court in western New York, involves a constitutional challenge of the state laws that were rushed through a year ago and included requirements for not only more comprehensive background checks but also mandatory firearm safety and live-fire training for individuals seeking to obtain concealed carry permits. The measures also prohibit gun owners with those permits from carrying a concealed weapon into locations such as schools, hospitals and government buildings.
Earlier this month, additional measures went into effect under the 2022 legislation that includes requiring background checks for those purchasing ammunition or antique firearms in New York. The law also assesses fees for those transactions — $2.50 for each ammunition background check and $9 for gun background checks. The money is supposed to be used to fund the system that processes the background checks.
“The (U.S.) Constitution presumptively protects the possession of ammunition just as strongly as it protects the right to bear firearms, and the state cannot ‘justify (this) regulation by demonstrating that it is consistent with the nation’s historical tradition of firearm regulation,’” the complaint states.
The case was filed against outgoing acting State Police Superintendent Steven A. Nigrelli on behalf of state Sen. George Borrello, state Assemblyman David DiPietro, and William Ortman, a member of the New York State Firearms Association.
Gov. Kathy Hochul has staunchly defended the state’s new firearms laws, saying they are intended to protect the public.
“As governor, I took swift action to keep people safe following the Supreme Court’s decision in Bruen to strike down our state’s century-old concealed carry law,” Hochul said in a statement earlier this month. “One year later, we are continuing to lead the nation in the fight against gun violence and saving lives.”
State Sen. Dan Stec, a Queensbury Republican, is among numerous Republican lawmakers who have supported the Supreme Court’s decision to move forward in reviewing a challenge of the state’s ammunition background check and database law.
“I voted against this bill because it undermines our Second Amendment right and harms small businesses,” Stec said. “Since coming into effect, those concerns have sadly been validated and new privacy issues have arisen. … We need to take public safety seriously if we’re going to take on violent crime and illegal gun possession, not take rights away from gun owners who are following the law.”
U.S. Rep. Elise Stefanik has also weighed in on the Supreme Court’s review of the law.
“Gov. Hochul’s state-run background check system and tax on constitutional rights are causing serious delays and false denials,” Stefanik said. “I have heard from constituents, including former law enforcement officials, who have successfully purchased a firearm only to be denied the ability to purchase ammunition. The delays are also causing community firearm retailers to lose customers who say they aren’t going to wait and instead go to neighboring states for ammunition to avoid the state registration and extra taxes.”
Read the article in Albany Times Union here.
