by Shawne K. Wickhham
Gun Advocates Up in Arms Over Change in Application Published in the Union Leader on August 17, 2014
Gun-rights advocates are up in arms over recent changes to the state’s resident concealed-carry pistol license application that they say are a “direct attack” on those rights.
The New Hampshire Firearms Coalition last week issued a statement criticizing the changes, which they say “invite rogue police chiefs to deny permits for flimsy, insubstantial reasons.”
The state Department of Safety has gotten numerous calls and emails from angry gun owners.
Earl Sweeney, assistant commissioner of safety, who approved the new form, said one change was made on the advice of the Attorney General’s Office, after a New Hampshire Supreme Court ruling in May.
Still, Sweeney said he didn’t anticipate the changes would cause such a firestorm. And he pledged to work with gun-rights advocates this week to fix the problems.
State law says authorities “shall” issue a license allowing someone to carry a concealed, loaded pistol or revolver “if it appears that the applicant has good reason to fear injury to the applicant’s person or property or has any proper purpose, and that the applicant is a suitable person to be licensed. Hunting, target shooting, or self-defense shall be considered a proper purpose.”
The law does not further define “suitable person” or “proper purpose.”
Upheld chief’s decision
In a May 16 order, the Supreme Court noted the vagueness of that language when it affirmed a lower court’s decision to uphold the Hooksett police chief’s decision to deny a man’s license application.
Noting RSA 159:6 does not define “suitable person,” the court stated, “However, we have construed the term to give some measure of discretion to the issuing authority to deny an application if it deems the applicant to be unsuitable.”
The plaintiff had argued that he was a suitable person to be licensed, based on this sentence on the reverse of the license application: “Applicants not prohibited under federal or New Hampshire law from possession of a firearm shall be deemed suitable persons and the license shall be issued unless the applicant is so prohibited from possessing a firearm.”
Sweeney said he wrote that particular paragraph several years ago as part of a summary of “salient points” about the state’s carry laws; they were printed on the back of the application form.
But the Supreme Court found that wording “would remove all discretion to deny the application of a person not otherwise prohibited from possessing a firearm under federal or state law.”
That’s not how lawmakers wrote the statute, the court said. “The Legislature easily could have drafted the statute in this manner if, indeed, it intended to deprive issuing authorities of any discretion over determining the suitability of an applicant. We conclude that such a ‘rule’ would impermissibly modify the statute.”
And that’s why the form had to be changed, Sweeney said. So the new license application replaced his “salient points” with the actual wording of state laws regarding license to carry, suspension or revocation of license, and the appeals process.
However, three new questions were also added to the front of the new form. One asks if someone is prohibited by federal law or regulation from possessing a firearm; another asks about previous licenses held.
But it was a third question that has raised the ire of many gun owners: “Has any state or federal agency or licensing authority ever claimed that you are prohibited by law or regulation from possessing a firearm?”
Rep. JR Hoell, R-Dunbarton, serves as secretary of New Hampshire Firearms Coalition. Hoell called the question “unanswerable.”
“Those extra questions don’t enhance safety, and if we’re interested in enhancing safety, there are better ways to do that,” he said.
The three new questions were meant to be “helpful” to those issuing licenses, Sweeney said. But the one about what a federal agency may have “claimed,” he said, is “a stupid question, really.”
“That particular question is extremely poorly worded, and we need to get rid of it,” he said.
Hoell not only criticized the “radical changes” to the form, but the process by which it was adopted. He contends the new form should have gone through the rule-making process, with public hearings and input. “I think the process is a complete violation of public trust,” he said.
Sweeney said the resident pistol license form had never gone through rulemaking before. He said he hopes the controversy over the new form can be resolved quickly, without having to wait to go through the rulemaking process.
“If we could get rid of the issues that they have and allay their concerns, I would just as soon change the form immediately,” he said. “And then if we have to go through rulemaking, we could go through it at a later time.”
Sweeney said he takes the blame for not looking more closely at the changes to the form and anticipating the concerns of gun owners.
“The bottom line is that we certainly had no intention to pull a fast one on people or take away anybody’s right to have a license to carry,” he said. “And we certainly, I think, should have looked at it more closely before we changed it.”
In the future, he said, “We certainly will get some wide input and give advance notice before we make another change like that.”
Alan Rice serves on the NHFC board of directors. He said the changes to the form represent “a radical departure” from past applications.
Rice said there are “abusive” police chiefs who refuse concealed-carry licenses for arbitrary reasons, and that’s why the previous language on the form was so critical.
But Enfield Police Chief Richard Crate Jr., president of New Hampshire Association of Chiefs of Police, said the state has some of the most liberal gun-permitting laws in the nation.
If a police chief denies a license application, the person can appeal the decision in court. And if he wins, the judge can order the chief to pay attorney fees, Crate said.
And that has happened enough, he said, that chiefs are pretty restrained about denying applications. He said chiefs in Salem and Lebanon in the past have had to issue concealed-carry licenses to known members of the Hell’s Angels because they did not have felony convictions that would have barred them.
Crate said the chiefs tend to use the questions on the license form “to see if this person is being honest or not with us.” But he said answering “yes” on some questions does not automatically bar someone from getting a license.
“We really need to be able to identify why this person is not suitable,” he said. “We look at it from what’s fair.”
In his eight years as chief, Crate recalls only a single instance in which he denied a license; the applicant was a convicted felon.
Vague on purpose
Sweeney said he believes the language of the gun-license law was intentionally vague. “Because you can’t predict every single situation that might arise, and so I think it does give them some flexibility. But it also adds the protection that if someone appeals and a judge agrees and thinks the chief … made the wrong decision, the judge can order the license to be issued.”
Hoell said he thinks “suitable person” should be defined in the law, and he plans to propose legislation to do so. He also plans to file a “constitutional carry” bill to make licenses optional; similar measures failed to pass in 2011 and 2013.
Rice would rather see New Hampshire adopt the kind of concealed-carry law Vermont has, where no license is required. “Then we don’t really care about the form.”
But in the meantime, he said, the previous license form was working fine and should be restored. “Lots of people are carrying lots of guns and there’s not a lot of crime here, so something’s working,” he said.
“Why change it?”