by Shawne K. Wickham
Published in the New Hampshire Sunday New on August 24, 2014
Gun license form must change, critics say
Issue not resolved: Some of the new wording will remain and that angers some gun owners.
The Department of Safety has agreed to remove some — but not all — of the changes to the concealed- carry gun license form that angered gun-rights advocates earlier this month.
But that’s not good enough, some say.
Earl Sweeney, assistant commissioner of safety, who approved the changes to the resident license form, met last week with several individuals who were outraged by those changes. And while both sides described the meetings as “cordial,”
The issue remains unresolved.
State law bars someone from carrying a loaded pistol or revolver in a vehicle or concealed on his person (except at his home or business) without a license.
And RSA 159:6 says local officials “shall issue” a license “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.”
At the center
“Proper purpose” and “suitable person” are not further defined. And that’s the crux of the controversy over the new license form.
Until recently, the reverse side of the form included a summary of “salient points” in state gun laws, including this: “Applicants not prohibited under federal or NH 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.”
However, the New Hampshire Supreme Court in May found that the Department of Safety had no authority to include such language, which does not appear in the statutes. So the department changed the license form, replacing the language on its reverse with the actual state laws.
Now gun-rights advocates are making a similar argument, contending that state officials had no authority to change the license application. They want the old form restored, including that previous language.
Rep. JR Hoell, R-Dunbarton, who serves as secretary of New Hampshire Firearms Coalition, said his meeting with Sweeney was “cordial” but he isn’t satisfied.
“I told him for open and transparent government, we need to keep the form the way it was,” he said. “The former language basically said if you can buy, you can carry.”
Issues arose after court case
Hoell said the form could be changed either through legislative rule-making or legislation. But he said the previous language, which had been on the form since 2003, needs to be restored until that can happen.
“I think what we’ve asked for is a perfectly reasonable solution,” Hoell said. “We’re talking four months more of re-issuing the old form and then when the legislative season starts, we can go hash out what should be the language on the form and what should be the language in the statute.”
The Supreme Court case involved a Hooksett man whose gun license application was denied. He appealed, arguing that he was a “suitable person,” based on the wording on the back of the license form.
The court wrote that the petitioner had not shown that the Department of Safety had rulemaking authority over resident gun licenses. Even if the wording on the back could be considered an administrative rule, such rules “may not add to, detract from or modify the law they are intended to implement.”
That language, the court said, “would remove all discretion to deny the application of a person not otherwise prohibited from possessing a firearm under federal or state law.
“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.”
The new license form also includes three new questions for applicants to answer, including: “Has any state or federal agency or licensing authority ever claimed that you are prohibited by law or regulation from possessing a firearm?”
Changes will be made
Gun-rights supporters said the question was “unanswerable,” and last week Sweeney agreed. He told the Sunday News the form will be modified, and the new questions removed, “as quickly as possible.”
However, Sweeney said in an email, “We have not committed to any changes to the back of the form.”
In changing the form, he said, officials “had no ulterior motive to abridge any of the rights expressed in the U.S. or State Constitutions.”
“As a lifelong owner of numerous firearms myself, those rights protect me as well,” he said.
Concord attorney Penny Dean, who has been defending gun rights in New Hampshire courts for many years, also met with Sweeney last week. She, too, said her concerns were not allayed.
Dean said the real problem is that the courts “have been unfairly chipping away at our Second Amendment rights.”
“Here’s the really sad thing: It is not he who is the maker of the law who is the true giver of law; it’s he who has interpreted the law.”
“The bottom line is what’s happening is wrong, and we need to do something about that,” she said.
The previous language on the back of the form, she said, was not about making rules. “It’s putting out in plain language for the average citizen what the law says and means,” she said.
Dean contends the legislative history on gun laws here is clear: “If you own a gun, you get a license.”
She said the court’s “tortured and twisted and outcome-determinative interpretation of the law” may provoke an unintended consequence: More people will choose to openly carry their guns, which does not require a license in this state.
And that is likely to provoke more confrontations with police, Dean said, as people unfamiliar with the laws report people for carrying guns into stores and other public places.
Dean also thinks the controversy could revive a push to have judges elected, not appointed.
Meanwhile, Hoell said he plans to file legislation that would define “suitable person” in the law.
And he said what the Department of Safety did may backfire. “I think their efforts to try to maintain some level of discretion … will actually hurt them,” he said. “Because there will be a great clamor amongst the gun owners to replace the current system with constitutional carry — no license required.”