Statement of Basis and Purpose of Proposed Rule

As the firearms-licensing officer for the City of New York, the Police Commissioner has promulgated rules governing the possession, carry, and transport of handguns by licensees. Section 5-01 of Title 38 of the Rules of the City of New York defines the types of available handgun licenses in the City and generally describes the restrictions imposed by the different types of licenses. Section 5-01(a) defines a premises license as a restricted handgun license issued for a specific business or residence. Section 5-23 sets forth in greater detail the restrictions and conditions imposed by the different types of handgun licenses available in the City. Subsection 5-23(a) (“the Rule”) governs the possession and transport of handguns by holders of a premises license. The Rule provides that any handguns listed on a premises license may not be removed from the address specified on the license except as provided in Chapter 5 of Title 38 of the Rules of the City of New York. Currently, the Rule authorizes a premises licensee to remove a handgun from the premises listed on the license to take it directly to and from one of the following destinations, provided that the handgun is transported unloaded, in a locked container, with the ammunition carried separately:

• An authorized small arms range/shooting club, to maintain proficiency in the use of a handgun; or

• An authorized area for hunting, provided that the licensee has requested and received an appropriate amendment to the handgun license from the Police Department.

Additionally, Chapter 16 of Title 38 of the Rules of the City of New York generally governs the transport or delivery of weapons into or within the City. As currently written, Chapter 16 appears to apply to the transport of handguns by premises licensees.

The requirement that premises licensees keep their handguns at their premises, along with these two exceptions to that requirement, seeks to balance public safety against the interests of licensees in maintaining proficiency in the use of their handguns and in using their handguns for hunting. Two legal developments have occasioned a reexamination of the balance struck by the Rule. The first is the New York Court of Appeals’ decision in Osterweil v. Bartlett, 21 N.Y.3d 580 (2013), which held that the New York Penal Law permits the owner of a part-time residence in the state to apply for a handgun license in the jurisdiction of that residence, although the owner may be domiciled outside the state. Prior to the decision, the statute had been interpreted to require the applicant for a handgun permit to show that he or she was a domiciliary of the county (or city) where the application was filed. See, e.g., Matter of Mahoney v Lewis, 199 A.D.2d 734, 735 (3d Dep’t 1993). Following the Osterweil decision, a New York City resident who owns a second home elsewhere in the state may apparently apply to the licensing officer in that jurisdiction for a license to possess a handgun at the second home. The Rule, however, does not currently authorize a premises licensee to transport a handgun listed on a New York City premises license to another premises where the licensee resides and is authorized to possess a handgun.

The second development is the New York State Rifle and Pistol Association v. City of New York lawsuit, which challenges the Rule’s transport authorizations on Second Amendment and other constitutional grounds. One plaintiff in the case alleges that the Rule prevents him from transporting a handgun listed on his New York City premises license to a second home upstate. Several plaintiffs allege that the Rule prevents them from transporting their handguns to small arms ranges/shooting clubs outside of the City for purposes of firearms training or competitions. New York State Rifle and Pistol Association v. City of New York, 883 F.3d 45 (2d Cir. 2013) (“NYSRPA”). The United States Supreme Court has granted review of the decision.

The Police Department has strongly believed, and continues to maintain, that the present Rule furthers an important public-safety interest. However, in light of the Osterweil decision and the ongoing NYSRPA case, the Police Department has reviewed the Rule, and has determined that it is possible to modify it to reflect a carefully considered accommodation to the legitimate interests of licensees while also ensuring the safe transport of handguns by licensees between authorized locations. In furtherance of this determination, the amended Rule would allow premises licensees to transport a handgun listed on their premises license directly to and from any of the following additional locations, provided that the handgun is transported unloaded, in a locked container, with the ammunition carried separately:

• Another premises where the licensee is authorized to have and possess a handgun;

• A small arms range/shooting club authorized by law to operate as such, whether located within or outside New York City; or

• A shooting competition at which the licensee may possess the handgun consistent with the law applicable at the place of the competition.

The amended Rule will continue to recognize the importance of public safety. It requires that (1) a handgun listed on a premises license be kept at the premises when not being transported directly to or from, or possessed at, one of the authorized locations; (2) any handgun be transported unloaded and in a locked container, with the ammunition carried separately; and (3) transport of a handgun through the City of New York be continuous and uninterrupted. These requirements mean that a person who has not obtained a carry permit under Penal Law § 400.00(2) will continue to be unauthorized to transport a firearm in operable condition in public.