Stow Man, Borrello Challenge State Law

Federal Suit States Ammo Fee, Background Check Violates Second Amendment

A Stow resident is among those who have filed a federal lawsuit challenging the constitutionality of New York state’s newly implemented ammunition registration law which requires that purchasers submit to and pay for a background check for ammunition transactions.

William Ortman is a member of the New York State Firearms Association and a certified instructor for pistol, rifle and metallic cartridge reloading through the National Rifle Association. The Stow man is an instructor for the Chautauqua County Pistol Permit Program, holds lifetime state hunting and fishing licenses, enjoys trap and skeet shooting and participates in high-power rifle competitions.

“On September 13, 2023, Mr. Ortman attempted to purchase a box of 9 millimeter ammunition for $32 at M&M Sports Den in Jamestown, a licensed firearms dealer. He declined to proceed when confronted with the background check and when he was informed that he would be responsible for paying the fee required conduct the background check. But for the background check and associated fee, Mr. Ortman would have purchased the ammunition and would make purchases in the future. He is thus subject to and harmed by the background checks and fees for purchase under the law.”

Ortman is joining with state Sen. George Borrello, R-Sunset Bay, and Assemblyman David DiPietro, R-East Aurora, in their suit against Steven A. Nigrelli, acting New York State Police superintendent, in challenging the state’s Concealed Carry Improvement Act. The new requirements include the following:

¯ Shifts New York state from a jurisdiction in which the FBI conducts firearms-related National Instant Criminal Background Check System (NICS) background checks, to one in which the New York State Police are the “point of contact” for background checks;

¯ Requires the State Police to conduct background checks on all firearm and ammunition purchases in the state;

¯ Authorizes State Police to charge fees for each background check on purchases and transfers. Those fees have been set at $9 for firearms and $2.50 for ammunition; and

¯ Requires the State Police to create and maintain a statewide firearms license and records database to be used for ammunition sales as well as for the certification and recertification of permits and assault weapon registration.

While the establishment of an ammunition database and background check requirements were part of the 2013 SAFE Act, implementation was put on hold because of legal and operational concerns.

There had been a challenge to the law, but U.S. Supreme Court Justice Sonia Sotomayor issued an order last week rejecting the challenge.

“This new order from Justice Sotomayor will ensure that the legislation’s provisions related to stronger background checks for guns and ammunition, set to take effect on September 13, will continue to move full speed ahead, and the law requiring periodic onsite inspections of firearms dealers remains intact. Public safety is my top priority, and I’m committed to doing everything in my power to keep New Yorkers safe,” Gov. Kathy Hochul said last week.

Borrello was in attendance Thursday as the state appealed a lawsuit he won last year in state Supreme Court in Cattaraugus County challenging new state Health Department isolation and quarantine rules. Now he is joining Ortman’s suit. Borrello voted against the Concealed Carry Improvement Act on the Senate floor and is himself a gun owner.

Ortman, Borrello and DiPietro argue the background checks on the purchase of ammunition imposed by the Concealed Carry Improvement Act infringe on their right to bear arms and that they can’t “identify an American tradition” of firearm regulation justifying the state’s law. The phrase “identifying an American tradition” is taken from the U.S. Supreme Court’s decision in New York State Rifle and Pistol Association Inc. v. Bruen, which states history and tradition will be used to determine whether laws regulating firearms are constitutional under the Second Amendment.

The Bruen decision struck down a New York law requiring people to demonstrate a particular need for carrying a gun in order to get a license to carry a gun in a concealed way in public — and paved the way for the state to pass the Concealed Carry Improvement Act. A majority of the Supreme Court ruled in Bruen said that the state’s former concealed carry requirements violated the Second Amendment right to “keep and bear arms.” Justice Brett Kavanaugh, joined by Chief Justice John Roberts, noted the limits of the decision. States can still require people to get a license to carry a gun, Kavanaugh wrote, and condition that license on “fingerprinting, a background check, a mental health records check, and training in firearms handling and in laws regarding the use of force, among other possible requirements.”

“My office has been flooded with calls from law-abiding gun owners, sporting goods dealers and gun clubs who are upset about this latest assault on our Second Amendment rights,” Borrello said. “Requiring a background check and fees for each ammunition purchase is unconstitutional and has already proven to be a technological and administrative failure. Since the system launched on Wednesday, retailers who sell firearms and ammunition across the state have reported that attempts to use New York’s new online system either failed completely or took so long to complete, the potential purchasers had already left their stores. The end result is that the state is blatantly denying New Yorkers the ability to exercise their Second Amendment rights. That represents a violation of the U.S. Constitution, which is the basis for our lawsuit.”

The federal government already taxes the sale of guns and ammunition nationwide. The government gives that money to the states, which spend it on wildlife conservation and hunter safety programs. According to the Associated Press, California followed New York’s lead and passed legislation earlier this month setting an 11% tax – the same as the federal tax — on guns and ammunition to pay for security improvements at schools and gun violence prevention programs. Gov. Gavin Newsom has until Oct. 14 to decide to sign the law.

California’s proposed tax would not apply to people who buy the guns. Instead, the state would make the businesses that sell guns and ammunition pay the tax. However, most of the time businesses will raise prices to cover the cost of the tax. The tax would not apply to police officers and it would not apply to businesses with sales of less than $5,000 over a three-month period.

“It’s a poll tax. It’s a tax on exercising a constitutional right,” said Chuck Michel, president of the California Rifle and Pistol Association, who opposes the tax. “We’re going to have to file a lawsuit to challenge it.”


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