New York and Nonresident Carry

This guest post does not necessarily represent the views of the Duke Center for Firearms Law. 

In a recent post, Andrew Willinger discussed the relationship between nonresident carry licenses, concealed-carry reciprocity and Article IV’s Privileges and Immunities Clause, suggesting that an absolute ban on nonresident carry permits and a total lack of reciprocity is vulnerable to constitutional challenges. To the best of my knowledge, New York is the only U.S. state that currently provides no avenue for a nonresident to obtain a carry permit. Or does it? New York now claims in ongoing litigation that it actually has never prohibited nonresidents from applying for concealed-carry licenses. This is a surprising position from a state that, not long ago, denied carry licenses to most of its own residents. Setting that aside, it is unclear whether New York’s interpretation of its own law, obviously intended to moot ongoing legal challenges, has any merit.

For background, prior to Bruen, states employed various approaches to the concealed carry of handguns by U.S. nonresident citizens. Some states allowed permitless carry by both residents and nonresidents. Some states granted partial reciprocity, meaning they recognized out-of-state carry licenses that contained similar application criteria to their own, such as a training course. Other states allowed nonresidents to apply for the state’s own license, often through a different process. A handful of states applied unique licensing criteria for nonresidents. Until 2023, North Dakota employed a permitless carry scheme for residents, while requiring either a nonresident or recognized out-of-state license from nonresidents. Presently, Oregon and Illinois allow residents of only certain states to apply for nonresident licenses and recognize no out-of-state licenses. Finally, New York and California refused to grant licenses to nonresidents or recognize licenses from any other states. Of course, this survey does not take into account an individual’s ability to openly carry a firearm, which is unregulated in most states for residents and nonresidents alike.

Following Bruen—which held that public carry is constitutionally protected and that therefore statutory schemes requiring a showing of cause to carry a firearm in public are invalid—litigants have focused their efforts on overturning nonresident carry bans. California recently settled with plaintiffs who challenged that state’s ban by establishing a procedure for nonresident licensure. But many actual or de facto nonresident carry bans remain. As mentioned, nonresidents of Oregon are unable to apply for that state’s concealed-carry license unless they live in a neighboring state and have a compelling need to carry a gun in Oregon. For an out-of-stater to be licensed to carry in Illinois, they must be a resident of Arkansas, Idaho, Mississippi, Nevada, Texas or Virginia, as those are the only states that Illinois has determined have substantially similar licensing criteria. Likewise, some states like Colorado recognize only resident licenses from certain states.  If a person does not happen to reside in one of those states, it is impossible for them to carry a concealed firearm in Colorado. Hawaii does not allow nonresidents to apply for concealed-carry licenses (the application from Kaua’i County does appear to contemplate this possibility, as it leaves blank the line for an applicant’s state), but the state does allow nonresidents to apply for open-carry licenses, which are subject to an “urgency or need” standard that has historically resulted in no licenses being issued.

New York is now the only state that closes all avenues of nonresident public carry. New York does not recognize any other state’s public carry licenses, nor does it provide nonresidents with a pathway to apply for licenses. The state fully prohibits the open carry of handguns for residents and nonresidents alike.[1] What’s more, the mere possession of a handgun is banned in New York absent a license subject to extremely limited exceptions, most of which relate to biathlon and other shooting competitions. Therefore, nonresidents of New York can rely only on the federal Firearm Owners’ Protection Act (FOPA) to transport their handguns through the state, and New York police are notorious for taking an “arrest first and ask questions later” approach to FOPA.

Recently, however, it appears that New York has sensed the constitutional infirmities of its total ban on nonresident handgun licenses. Last August, New York City promulgated an emergency rule purporting to allow nonresidents to apply for concealed-carry licenses issued by the New York City Police Department (NYPD). The City’s express purpose for enacting this was to ensure that it is evaluating licenses “in a manner consistent with the Supreme Court’s ruling in Bruen.” At the time, some questioned whether the city had authority to issue such licenses. State law requires that applications be made “to the licensing officer in the city or county, as the case may be, where the applicant resides, is principally employed or has his or her principal place of business as merchant or storekeeper.” In 2013, the New York Court of Appeals ruled that this provision did not prevent part-time residents who had a domicile elsewhere from applying for a handgun license. But the court did not suggest that its ruling extended to nonresidents.

Here is the full text of both the city ordinance and the state law:

City Ordinance:

§ 5-03 Carry and Special Handgun Licenses.

. . .

(b) A person who resides outside of New York State and is not principally employed within New York City may apply for a carry handgun license pursuant to this section, provided that such applicant meets the following requirements:

(1) The [character and criminal status] requirements of 38 RCNY § 5-02, except that the requirement to demonstrate a residence or principal place of business within the confines of New York City under subdivision (g) of such section shall not apply to an application submitted pursuant to this subdivision;

(2)   The [character references and training] requirements of subdivision (a) of this section;

(3)   The [application form] requirements of 38 RCNY § 5-05;

(4)   The submission of a form, to be provided by the department, that reflects the results of a background investigation undertaken for the purposes of obtaining a firearm license or firearm. The applicant shall provide such form to the local law enforcement agency in each jurisdiction in which the applicant has been a resident in the five (5) years preceding the date of the applicant’s application for a license pursuant to this subdivision and shall submit such completed form to the License Division.

(5)   If the applicant holds a firearms license or permit in any other jurisdiction, such applicant must submit a form, to be provided by the department, indicating the current and past status of any firearms licenses held by the applicant, including whether such other license is currently in good standing, and whether the applicant has any previous suspensions, revocations, or periods where the license was not in good standing.

State Law:

§ 400.00 Licensing and other provisions relating to firearms

. . .

3. Applications. (a) Applications shall be made and renewed, in the case of a license to carry or possess a pistol or revolver or to purchase or take possession of a semiautomatic rifle, to the licensing officer in the city or county, as the case may be, where the applicant resides, is principally employed or has his or her principal place of business as merchant or storekeeper[.]

. . .

7. License: form . . . . If such license is issued to a noncitizen, or to a person not a citizen of and usually a resident in the state, the licensing officer shall state in the license the particular reason for the issuance and the names of the persons certifying to the good character of the applicant.

Following New York City’s change, I suspected that the state would not contest this move for several reasons. First, from a gun-control standpoint, New York City has some of the strictest regulations in the state. The city requires applicants to receive their co-habitants’ assent to the approval of their application, witnessed by a notary (this also applies to nonresidents) and  complete target practice not required by state law for license renewals. The city also boasts some of the longest license approval times in the state. It also requires an in-person visit to the NYPD headquarters for fingerprinting and submission of an application questionnaire. Additionally, while licenses issued outside of New York City are not valid in the city without obtaining a separate license from the NYPD, city licenses are valid statewide. Obtaining a nonresident license in New York City, therefore, removes a duplicative obstacle to carrying statewide that is currently the subject of litigation from upstate residents. Finally, the training requirement in practice requires applicants to travel to New York or New Jersey for two days, as it entails an 18-hour course. I am only aware of classes in these two states that meet New York’s regulatory requirements.

My suspicions were confirmed in court filings in a challenge to the state ban on nonresident carry, where New York argued that the plaintiffs had misread state law. The state pointed out a handful of counties, including the five boroughs of New York City, that issue licenses to nonresidents. I think New York’s reading of its own state law is a perplexing interpretation of the plain text, which clearly limits licenses to residents and those who work in New York. This reading is further confirmed by N.Y. Penal Law § 400.00(7), quoted above, requiring licensing officers to articulate a reason for issuing a handgun license to “a noncitizen, or to a person not a citizen of and usually a resident in the state.” I thus suspect that the court will rule against New York as a matter of statutory interpretation.

One would generally be correct in assuming that a local ordinance inconsistent with state law would be invalid, and, as a corollary, New York City could no longer issue licenses to nonresidents if state law is held to preempt just that. Although correct as black-letter municipal law, the court may also well hold the state’s ban on nonresident licensure unconstitutional. In this bizarre outcome, New York City may be permitted—perhaps even compelled—to implement an ordinance directly inconsistent with state law. Regardless of the outcome, the state’s argument that non-residents are able to carry firearms in New York, despite a clearly contrary statutory command, and New York City’s move to actually issue those licenses are fascinating developments that put Bruen’s practical effects on full display by forcing otherwise gun-control friendly jurisdictions to adopt pro-gun rights litigation positions in order to save their restrictive firearm regulations from invalidation.