your system has a set of criteria one must meetNo. And no and no. Absolutely one hundred per cent no. You haven't paid any attention at all, have you? Issuance of a possession and acquisition licence is 100% discretionary -- to read the law.
I'm not talking about issuance of a permit to carry a concealed firearm -- that is not equally discretionary.
I'm talking about a
discretionary system, i.e. one that is comparable to the one you are talking about. The issuance of firearms licences in Canada is such a comparable system.
http://www.canlii.org/ca/as/1995/c39/whole.html6. (1) A person is eligible to hold a licence only if the person is not prohibited by a prohibition order from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device or prohibited ammunition.
7.(1) An individual is eligible to hold a licence only if the individual
(a) successfully completes the Canadian Firearms Safety Course ...
The only specified
ineligibility factors are an actual prohibition order, most commonly made at the time of sentencing for a violent or firearms-related offence, and failure to complete the required course (or meet the equivalency criteria). And of course age comes into it somewhere.
Then come the discretionary elements:
5. (1) A person is not eligible to hold a licence if it is desirable, in the interests of the safety of that or any other person, that the person not possess a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition or prohibited ammunition.
Criteria
(2) In determining whether a person is eligible to hold a licence under subsection (1), a chief firearms officer or, on a reference under section 74, a provincial court judge shall have regard to whether the person, within the previous five years,
(a) has been convicted or discharged under section 736 of the Criminal Code of
(i) an offence in the commission of which violence against another person was used, threatened or attempted,
(ii) an offence under this Act or Part III of the Criminal Code,
(iii) an offence under section 264 of the Criminal Code (criminal harassment), or
(iv) an offence relating to the contravention of subsection 39(1) or (2) or 48(1) or (2) of the Food and Drugs Act or subsection 4(1) or (2) or 5(1) of the Narcotic Control Act;
(b) has been treated for a mental illness, whether in a hospital, mental institute, psychiatric clinic or otherwise and whether or not the person was confined to such a hospital, institute or clinic, that was associated with violence or threatened or attempted violence on the part of the person against any person; or
(c) has a history of behaviour that includes violence or threatened or attempted violence on the part of the person against any person.
The authority is directed to direct his/her mind to certain considerations, but the
discretion is not fettered in the legislation.
A gun-head funded paper reproduced at the website of the vile right-wing gun-head MP Gary Breitkreutz states the critique:
http://www.garrybreitkreuz.com/publications/violatescharterofrightsandfreedom.htmThe excessive discretion exercised by the Chief Firearms Officer in each province also violates the norms of procedural fairness. As Justice Conrad of the Alberta Court of Appeal oberved <the dissenting opinion in that court>: “The entire licensing scheme is at the discretion of the Chief Firearms Officer. It is a discretion without minimum standards, or any absolute standards for that matter.” This unfettered discretion violates the norms of the rule of law that date back to the Magna Carta (1215). Dicey’s articulated this principle still stands:
“We mean, in the first place, that no man is punishable or can be lawfully made to suffer in body or in goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. In this sense the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint.”
This rule of law principle was enforced in Canadian courts prior to the Charter in the famous case of Roncarelli v. Duplessis (1959), and is strengthened by section 7 of the Charter.
The Supreme Court's decision on the question demonstrates how there simply is no such thing, in a free and democratic society under the rule of law and all that jazz, as unfettered discretion; the Alberta decision was appealed:
http://scc.lexum.umontreal.ca/en/2000/2000scc31/2000scc31.html(I have omitted discussion of granting of authorization to transport/carry, and discretion to register firearms, which are somewhat fettered in the legislation.)
37. ... A licence shall be refused if the applicant is not eligible to hold one: s. 68. Eligibility to hold a licence is delineated in the rest of the Act: a person is ineligible to hold a licence if the person has been convicted of certain offences (s. 5(2)) or is subject to a prohibition order (s. 6); s. 7 requires the applicant to complete a safety course.
... Furthermore, the chief firearms officer and the Registrar are explicitly subject to the supervision of the courts. Refusal or revocation of a licence or a registration certificate may be referred to a provincial court judge: s. 74. ...
The obvious inference is that if the discretion were NOT subject to review, it WOULD be an impermissible grant of discretion.
And yet the discretion is not fettered in the legislation itself. It is subject to review, but it is not fettered. The review would obviously be able to involve questions such as impermissible discrimination.
The simple, straightforward fact is that a grant of unfettered discretion with a prohibition on any review of the exercise of that discretion, would be contrary to the most fundamental rules of a society under the rule of law, if it were exercised in a way that is plainly so impermissible as to discriminate on the basis of skin colour.
If the Cdn law
had barred review, it would undoubtedly have been struck down.
The review provisions are:
74. (1) Subject to subsection (2), where
(a) a chief firearms officer or the Registrar refuses to issue or revokes a licence, registration certificate, authorization to transport, authorization to export or authorization to import, ... the applicant for or holder of the licence, registration certificate, authorization or approval may refer the matter to a provincial court judge in the territorial division in which the applicant or holder resides.
75. ... (3) At the hearing of the reference, the burden of proof is on the applicant or holder to satisfy the provincial court judge that the refusal to issue or revocation of the licence, registration certificate or authorization, the decision or the refusal to approve or revocation of the approval was not justified.
76. On the hearing of a reference, the provincial court judge may, by order,
(a) confirm the decision of the chief firearms officer, Registrar or provincial minister;
(b) direct the chief firearms officer or Registrar to issue a licence ...
77. (1) Subject to section 78, where a provincial court judge makes an order under paragraph 76(a), the applicant for or holder of the licence, registration certificate, authorization or approval, as the case may be, may appeal to the superior court against the order. ...
So, to transpose that to your situation -- your situation being in a free and democratic society under the rule of law and all that jazz -- if the law does grant absolute, unfettered discretion and prohibit any form of review, it is obviously contrary to the fundamental principles of your constitution and justice system.
And the way to deal with it would be for someone to challenge a denial of a permit by challenging the validity of the legislation itself under which the decision denying the permit was made.
As the gun-heads in Canada tried to do, by way of a constitutional reference, but failed precisely because the exercise of the discretion is
subject to review, and obviously because there are
inherent requirements governing the exercise of discretionary powers. One of which is that skin colour may not be used as a criterion, duh, precisely because permitting such an exercise of discretion would violate the constitutional guarantee of equality before (and under, here) the law.
None of that is simple, but it's quite unavoidably true.
The best I can find for what the law in NY state is is this:
http://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=$$PEN400.00$$@TXPEN0400.00+&LIST=SEA3+&BROWSER=40750369+&TOKEN=22340074+&TARGET=VIEW
Virtually incomprehensible from a lack of formatting. This seems to be the relevant bit:
§ 400.00 Licenses to carry, possess, repair and dispose of firearms.
1. Eligibility.
No license shall be issued or renewed pursuant to this section except by the licensing officer, and then only after investigation and finding that all statements in a proper application for a license are true.
No license shall be issued or renewed except for an applicant
(a) twenty-one years of age or older, provided, however, ...
(b) of good moral character;
(c) who has not been convicted anywhere of a felony or a serious offense;
(d) who has stated whether he or she has ever suffered any mental illness or been confined to any hospital or institution, public or private, for mental illness;
(e) who has not had a license revoked or who is not under a suspension or ineligibility order issued ...
(f) in the county of Westchester, ... and
(g) concerning whom no good cause exists for the denial of the license.
2. Types of licenses.
... A license for a pistol or revolver, other than an assault weapon or a disguised gun, shall be issued to
(a) have and possess in his dwelling by a householder;
... (f) have and carry concealed, without regard to employment or place of possession, by any person when proper cause exists for the issuance thereof;
Have I managed to find the gist of it? Gets kinda tiresome hearing all the chatter about how awful things are when no one has ever produced any actual information about how those things are ...
The problem alleged seems to be that the legislation provides that
a licence for a pistol or revolver shall be issued to have and carry concealed by any person when proper cause exists for the issuance thereof.
And presumably it is within the discretion of the issuing authority to determine whether "proper cause" exists.
And if it could be demonstrated that proper cause had been found to exist in the case of one applicant but not in the case of another similarly situated applicant whose skin colour was different ... no court would find an arbitrary and capricious exercise of discretion based on impermissible considerations?
My main question remains, though: who has challenged such a decision, and what was the result, and if no one has, why not?