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Court Invalidates a Permit Rule as Bogus: Agency Can’t Make Up New Requirements

Friday, June 10, 2016

Court Invalidates a Permit Rule as Bogus: Agency Can’t Make Up New Requirements

In a ruling released early this month, the New Hampshire Supreme Court determined that a license condition imposed by the state’s Department of Safety had no basis in law, and invalidated the requirement as executive overreach. New Hampshire allows nonresidents to apply for a concealed carry license. Starting in 2013, the administrative rules listing the application requirements state that the nonresident must provide proof of an existing “resident state license” to carry a concealed weapon to be eligible. Without this proof, a nonresident license will not be issued. New Hampshire’s actual licensing statute, however, lacks any reference to this requirement and requires, among other things, that the applicant be “a suitable person to be licensed.”

The plaintiffs, New Jersey resident Scott Bach (a member of the NRA Board of Directors) and the Association of New Jersey Rifle and Pistol Clubs, Inc., argued that this administrative “resident license” rule was unauthorized, invalid and unenforceable because it wasn’t based on state statute. For residents of some jurisdictions, like New Jersey, it is virtually impossible to obtain a resident license and consequently, to satisfy this “resident license” requirement. In addition, the plaintiffs argued that the administrative rules effectively imposed a higher standard than the “suitability” standard contained in the New Hampshire statute.

At first instance, the trial court disagreed, ruling that there was neither a state nor federal constitutional right to carry a loaded concealed weapon, and, even assuming that such a right existed, the administrative rules did not unreasonably infringe upon that right. A compelling interest in protecting the public was sufficient to justify the administrative rules. However, on appeal, the Supreme Court of New Hampshire reversed.

In evaluating the administrative rules, the court noted a legislature could delegate to administrative agencies the power to make rules and regulations necessary for the proper execution of the laws. However, this power was limited: the agency could “fill in the details” of the legislative scheme but could not add to, detract from, or modify the statute. While the state law did not define “suitable person,” it clearly lacked any requirement that nonresidents submit proof of their resident state licenses. 

By inventing this prerequisite, the administrative rules “effectively import into New Hampshire law requirements different from those set forth in” the statute. This administrative scheme could not be justified by pointing to a need for a nonresident applicant to supply proof of his or her suitability, because such information could be provided using other, equally sufficient, means. By effectively incorporating into New Hampshire’s concealed-carry licensing standards the requirements established by other states for the issuance of their licenses, the administrative rules impermissibly changed the statutory scheme adopted by the legislature. The challenged administrative rules were, as a result, invalid and unenforceable.

The decision is Bach v. New Hampshire Dept. of Safety, No. 2014–0721, 2016 WL 3086130 (N.H. June 2, 2016).

BY NRA-ILA Staff

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Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.