Judges: James D. Cole, Assistant Attorney General
Filed Date: 11/18/1991
Status: Precedential
Modified Date: 7/5/2016
Requestor: Patrick M. Malgieri, Esq., County Attorney Monroe County Department of Law County Office Building 39 West Main Street Rochester, New York 14614
Written by: James D. Cole, Assistant Attorney General in Charge of Opinions
You have requested an opinion regarding several aspects of section
First, you have expressed concern that individuals who make multiple additions and deletions from their carry permits may be dealing handguns from the permit. You have asked whether the licensing officer may deny the request of a currently licensed permit holder to add or delete handguns from his permit if there is cause to believe that the permit is being used for other than its intended original purpose.
A licensing officer has broad discretion in determining whether "proper cause exists" for the issuance of a carry permit pursuant to Penal Law §
Clear from these decisions is the authority of the licensing officer to monitor carry licenses he has issued to ensure that the basis for issuance of the license remains. Once issued, a carry license is not irrevocable.
The Penal Law authorizes the issuance of a carry license only upon a showing of proper cause. Section 400(2)(f). If the underlying circumstances serving as the justification for issuance of the license have changed, a licensing official necessarily must have the power to modify or revoke the original license. Case law has recognized this authority. Matter of Sherwood, supra; Hochreich v Codd, supra.
A licensing official, in order to ensure that handguns are at all times possessed by persons meeting the requirements of the State Penal Law, must be able periodically to review the licensee and his current circumstances. A licensing official, in issuing a license, may impose reasonable restrictions to ensure that the licensee is at all times qualified under State law to possess and carry a firearm. See, 1972 Op Atty Gen (Inf) 4.
You have asked whether a rule similar to that expressed in section
We believe that the licensing officer is permitted to require an explanation of any requested change to an existing carry permit. It is incumbent upon the applicant in each case to demonstrate that "proper cause exists" for any such change. See, Bernstein v Police Department,
Your second question is whether a dealer licensed to sell firearms in New York may sell these firearms at licensed gun shows within the State. As you know, under both State and Federal law a licensed dealer is generally restricted to doing business at the particular place of business stated on the license. See, Penal Law §
New York law requires a dealer in firearms to obtain a license which, among other things, states and describes the premises for which it is issued. Such a license is valid only for the premises stated on the license (Penal Law §
In our view, dealers in firearms (as defined in section
"No provision of this chapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together."
18 U.S.C. § 927 .
Thus, only provisions of the Gun Control Act of 1968 that are in direct and positive conflict with State law supersede that State law. The question at hand is the meaning of the language "direct and positive conflict".
We believe it is clear from the legislative history of the Federal Gun Control Act of 1968 that more restrictive State laws governing firearms are not superseded by the Federal Act. The House Report accompanying this legislation states that its "principal purpose" is "to strengthen Federal controls over interstate and foreign commerce in firearms and to assist the States effectively to regulate firearms traffic within their borders." H. Rep. No. 1577, 3 U.S. Code Cong. Admin. News 1968, p. 4410 at 4411. The legislation responded to "widespread national concern that existing Federal control over the sale and shipment of firearms [across] state lines is grossly inadequate." Id., at 4413. The Gun Control Act was designed "to control the indiscriminate flow of such weapons across State borders and to assist and encourage States and local communities to adopt and enforce stricter gun control laws." Id., at 4413; emphasis supplied.
In an "Executive Communication" from the Attorney General of the United States to the Speaker of the House of Representatives dated June 10, 1968, requesting the enactment of the Gun Control Law of 1968, it is stated:
"By recognizing the Federal responsibility to control the indiscriminate flow of firearms and ammunition across State borders, this bill will give States and local communities the capacity and the incentive to enforce effectively their own gun control laws. Once enacted into law, it will insure that strong local or State laws are not subverted by a deadly interstate traffic in firearms and ammunition." Id., at 4425.
Indeed, regulations carrying out the provisions of the Gun Control Act of 1968 provide:
"A license issued under this part confers no right or privilege to conduct business or activity contrary to State or other law. The holder of such a license is not by reason of the rights and privileges granted by that license immune from punishment for operating a firearm or ammunition business or activity in violation of the provisions of any State or other law."
27 C.F.R. § 178.58. See, Oefinger v Zimmerman,
In response to your second question, we conclude that dealers in firearms in New York may not sell firearms (defined in section
You also asked whether an individual violates the terms of his carry permit if he uses it to bring guns to a licensed gun show to display and sell them there. In New York, it is generally accepted that a carry permit may validly restrict the purposes for which the licensed weapon may be carried. See, Matter of Davis v Clyne,
Finally, you have asked whether a currently State-licensed dealer may have his license revoked or suspended for failing to maintain and file proper transaction records. We draw your attention to (a) subsection 12 of Penal Law §
"A license may be revoked and cancelled at any time in the city of New York, and in the counties of Nassau and Suffolk, by the licensing officer, and elsewhere than in the city of New York by any judge or justice of a court of record. The official revoking a license shall give written notice thereof without unnecessary delay to the executive department, division of state police, Albany, and shall also notify immediately the duly constituted police authorities of the locality."
Taken together, we believe that these provisions give ample authority for a judge or justice (or, where appropriate, the licensing officer) to revoke the license of a dealer in firearms for failure to maintain proper records as required by law.
The Attorney General renders formal opinions only to officers and departments of the State government. This perforce is an informal and unofficial expression of views of this office.
national-rifle-association-a-not-for-profit-corporation-south-carolina , 914 F.2d 475 ( 1990 )
United States v. Herbert Van Buren , 593 F.2d 125 ( 1979 )
People v. Lombardo , 61 N.Y.2d 97 ( 1984 )
Matter of Moore v. Gallup , 293 N.Y. 846 ( 1944 )
Coalition of New Jersey Sportsmen v. Florio , 744 F. Supp. 602 ( 1990 )
Fresno Rifle and Pistol Club, Inc. v. Van De Kamp , 746 F. Supp. 1415 ( 1990 )
Michaelson v. New York City Police Department , 53 A.D.2d 573 ( 1976 )
Shapiro v. Cawley , 46 A.D.2d 633 ( 1974 )
Guida v. Dier , 54 A.D.2d 86 ( 1976 )
Davis v. Clyne , 58 A.D.2d 947 ( 1977 )
Hochreich v. Codd , 68 A.D.2d 424 ( 1979 )
Bernstein v. Police Department , 85 A.D.2d 574 ( 1981 )
Marlow v. Buckley , 105 A.D.2d 1160 ( 1984 )
In re Sherwood , 80 Misc. 2d 215 ( 1975 )