NY SAFE: “ASSAULT WEAPON” DEFINITIONS

“What The Law-Abiding New York Firearms’ Owner
Must Know About Governor Andrew Cuomo’s NYSAFE Act”

CAPSULE SUMMARY

In this post I give you the definitions of ‘assault weapon’ under NYSAFE. These definitions are tests. I lay out the definitions for you. I explain what they mean. I show you how they work. After reading this post, you will grasp how to examine your own firearms.

GETTING A HANDLE ON “ASSAULT WEAPON” IN NYSAFE.

Governor Cuomo’s NYSAFE website mentions three types of “assault weapons,” matching three basic “gun types.” Those gun types are: rifles, pistols and shotguns. That’s reasonable. Most firearms made today are rifles, pistols or shotguns. And a firearm can’t be an “assault weapon” under NYSAFE if it isn’t a rifle, pistol, or shotgun. The problem is: NYSAFE isn’t so tidy. Governor Cuomo’s NYSAFE site oversimplifies the Act’s treatment of “assault weapons. The Governor’s treatment of assault weapons isn’t consistent with the NYSAFE Act’s treatment of those weapons. If the Governor were correct, you might expect a one-to-one correspondence between rifles that are assault weapons, pistols that are assault weapons and shotguns that are assault weapons. Unfortunately, this isn’t so. To understand this, let’s look at the notion of ‘category.’

CATEGORIES OF ASSAULT WEAPONS

In the NYSAFE Act we find one definition of ‘assault weapon’ for rifles. And we find one definition of ‘assault weapon’ for pistols. But, we find two definitions of ‘assault weapon’ for shotguns. And we find two more quasi-definitions of ‘assault weapon’ in NYSAFE. So, think of “assault weapons” as “categories,” not gun-types: four clear-cut categories of “assault weapons and two others, totaling six categories in NYSAFE. At the moment we look at the definitions of ‘assault weapon’ for the first four categories.

THE DEFINITIONS OF ‘ASSAULT WEAPON’ IN NYSAFE

Section 37 of NYSAFE lays out the definitions of ‘assault weapon.’ Section 37 of NYSAFE is codified in subdivision 22 of Section 265 of the Penal Code of New York. The definitions of  ‘assault weapon’ are:

SECTION 37(A) (CATEGORY ONE): RIFLES THAT ARE ASSAULT WEAPONS

“‘Assault weapon means a semiautomatic rifle that has the ability to accept a detachable magazine and has at least one of the following characteristics: (1) a folding or telescoping stock; (2) a pistol grip that protrudes conspicuously beneath the action of the weapon; (3) a thumbhole stock; (4) a second handgrip or protruding grip that can be held by the non-trigger hand; (5) a bayonet mount; (6) a flash suppressor or muzzle break or muzzle compensator or a threaded barrel designed to accommodate a flash suppressor or muzzle break or muzzle compensator; or (7) a grenade launcher.”

SECTION 37(B) (CATEGORY TWO): SHOTGUNS THAT ARE ASSAULT WEAPONS

“‘Assault weapon’ means a semiautomatic shotgun that has at least one of the following characteristics: (1) a folding or telescoping stock; (2) a thumbhole stock; (3) a second handgrip or protruding grip that can be held by the non-trigger hand; (4) a fixed magazine capacity in excess of 7 rounds; or (5) the ability of the shotgun to accept a detachable magazine.”

SECTION 37(C) (CATEGORY THREE): PISTOLS THAT ARE ASSAULT WEAPONS

“‘Assault weapon’ means a semiautomatic pistol that has the ability to accept a detachable magazine and has at least one of the following characteristics: (1) a folding or telescoping stock;(2) a thumbhole Stock;(3) a second handgrip or protruding grip that can be held by the non-trigger hand; (4) the capacity to accept an ammunition magazine that attaches to the pistol outside of the pistol grip;(5) a threaded barrel that is capable of accepting a barrel extender or a flash suppressor or a forward handgrip or a silencer;(6) a shroud that is attached to or partially or completely encircles the barrel of the weapon and that permits the shooter to hold the weapon with the shooter’s non-trigger hand so that the non-trigger hand is not burned;(7) a manufactured weight of 50 ounces or more when the weapon is unloaded;(8) a semiautomatic version of an automatic rifle or a shotgun or a firearm.”

SECTION 37(D) (CATEGORY FOUR) SHOTGUNS THAT ARE ASSAULT WEAPONS

“‘Assault weapon’ means a revolving cylinder shotgun.”

LET’S LOOK CLOSELY AT THE DEFINITIONS OF ‘ASSAULT WEAPON’ IN NYSAFE.

Except for the revolving cylinder shotgun, all assault weapons are semiautomatics. Take a look at your firearms. Inventory them. Divide them into three categories: rifle, shotgun and pistol. Suppose you have a black powder musket. Muskets are smoothbore long arm firearms. By definition, they are not rifles because the barrel of a musket isn’t rifled. So muskets aren’t long arm rifles. And muskets aren’t pistols.  And muskets aren’t shotguns. So, muskets aren’t “assault weapons.” Muskets can’t be “assault weapons” under NYSAFE. Why? Answer: no definition. Now, NYSAFE might have provided a definition.  NYSAFE might have said: ‘assault weapon’ means smoothbore long arm firearms. If so, then muskets would be assault weapons under NYSAFE. A firearm becomes an “assault weapon” if the law defines it as an ‘assault weapon.’ Otherwise it isn’t. That’s the danger of laws like NYSAFE. Any firearm is potentially an “assault weapon.” At the moment, though, only firearms that are rifles, pistols or shotguns may also be “assault weapons.” So set aside firearms that aren’t rifles, pistols or shotguns.

Like muskets, other firearms, too, do not fall into the category of rifle, shotgun or pistol. Most do. Set aside firearms that aren’t rifles, pistols or shotguns. Now, take a look at the remaining firearms in your collection. We will isolate the semiautomatic firearms first. But, we must decide what the expression ‘semiautomatic’ means. You might know what ‘semiautomatic’ means. But, does New York law define the word, ‘semiautomatic?’ If “no,” we look to trade use of the word. If, “yes,” we go with New York law use. Be aware: use of the word ‘semiautomatic’ in New York law trumps use of the word in the firearms’ industry. If New York law defines a word, then the word is a “legal term of art.” The meaning of ‘semiautomatic’ may mirror trade use. If an inconsistency exists, go with the New York law definition for the word.

Now, NYSAFE does not define ‘semiautomatic, but other New York law does define it. See New York Penal Law Code Section 265.00(21). The word ‘semiautomatic’ “means any repeating rifle, shotgun or pistol, regardless of barrel or overall length, which utilizes a portion of the energy of a firing cartridge or shell to extract the fired cartridge case or spent shell and chamber the next round, and which requires a separate pull of the trigger to fire each cartridge or shell.”

Now, look at your firearms again. Look at your pistols. If they are single action or double action revolver handguns, they are not “assault weapons.” So, you needn’t worry. Look at your rifles. If they are bolt action or lever action rifles, they are not “assault weapons.” Again, you needn’t worry. Look at your shotguns. If they are pump action, they are not assault weapons. You needn’t worry. Look again at your shotguns. Do you have a revolving cylinder shotgun? If so, do worry. It is an “assault weapon.” If the shotgun works through a revolving cylinder, the firearm is an assault weapon.  Under NYSAFE The revolving cylinder shotgun is the only  non-semiautomatic that is also an “assault weapon.” Set it aside.

Now, let’s look at the remaining rifles, shotguns and pistols. Do you have a “machine gun?” NYSAFE does not define a ‘machine gun,’ but other New York law does.  See New York Penal Law Code Section 265.00(1). The word ‘machine gun’ “means a weapon of any description, irrespective of size, by whatever name known, loaded or unloaded, from which a number of shots or bullets may be rapidly or automatically discharged from a magazine with one continuous pull of the trigger and includes a sub-machine gun.” If you have lawful possession of a machine-gun, don’t worry. A machine gun isn’t an “assault weapon.” And machine guns are not a subset of “assault weapon.” A machine gun does not fall under the scope of NYSAFE. If you lawfully have a machine gun, licensing for it falls under Federal law and under other Sections of New York State law. Possession of machine guns does not fall within the scope of NYSAFE.

SEMIAUTOMATIC WEAPONS THAT ARE ASSAULT WEAPONS

The remaining weapons in your collection are semiautomatics. They may be “assault weapon.” But semiautomatics are not necessarily “assault weapons.” Keep in mind: all “Category One” through “Category Three” assault weapons are semiautomatics under the NYSAFE Act, but not all semiautomatics are assault weapons. Look at the definitions closely. Think of the definitions of “assault weapons” under NYSAFE as tests. Apart from the special case of revolving cylinder shotguns (“Category Four” assault weapons), you first decide if the weapon is a semiautomatic. If the weapon isn’t a semiautomatic, then stop. The firearm isn’t an “assault weapon.” If, however, the weapon is a semiautomatic, then go to the second test. Ask: can the weapon accept a detachable magazine? If the weapon cannot accept a detachable magazine, stop. The firearm isn’t an assault weapon. But, what is a “detachable magazine?” NYSAFE doesn’t say. Curiously, NY SB 1422 did have a definition for ‘detachable magazine,’ but NY SB 1422, introduced on January 9, 2013, failed. NY SB 1422 would have amended New York Penal Law Code Section 265.00, adding Section 265.00(24). That Section defines ‘detachable magazine.’ “Detachable magazine’ means any ammunition feeding device, the function of which is to deliver one or more ammunition cartridges into the firing chamber, which can be removed from the firearm without the use of any tool, including a bullet or ammunition cartridge.” But that definition for ‘detachable magazine’ doesn’t exist in New York law. That definition doesn’t exist because the New York Legislature didn’t pass NY SB 1422. Why doesn’t New York law define ‘detachable magazine?’ Why didn’t NY SB 2230 – that became NYSAFE – provide a definition for ‘detachable magazine?’ It’s curious. The expression is important. A definition for it should exist. The expression appears prominently in NYSAFE. New York law doesn’t provide a definition. We don’t have a definition for it. This means we must look outside New York law for a workable definition. We look to trade use of the term. The firearms’ industry has one.

The NRA-ILA provides a glossary of common firearms’ terminology. And, fortunately, the NRA-ILA does provide a definition for ‘magazine.’ The word ‘magazine’ means, “a spring-loaded container for cartridges that may be an integral part of the gun`s mechanism or may be detachable. Detachable magazines for the same gun may be offered by the gun`s manufacturer or other manufacturers with various capacities. A gun with a five-shot detachable magazine, for instance, may be fitted with a magazine holding 10, 20, or 50 or more rounds. Box magazines are most commonly located under the receiver with the cartridges stacked vertically. Tube or tubular magazines run through the stock or under the barrel with the cartridges lying horizontally. Drum magazines hold their cartridges in a circular mode. A magazine can also mean a secure storage place for ammunition or explosives.” Treat this definition as a de facto New York law definition. Treat it as a “legal term of art.” So, if your rifle, shotgun or pistol is a “semiautomatic” and can accept a “detachable magazine,” we continue our analysis. “Semiautomatic” and “the ability to accept a detachable magazine” are “necessary conditions” but not “sufficient conditions.” If the rifle, pistol or shotgun is a semiautomatic and can accept a detachable magazine, then, and only then, do we continue with our analysis. Take a look at your remaining rifles, pistols and shotguns. If any are both a semiautomatic and can accept a detachable magazine, we must continue with our analysis. So, separate those firearms out. Now, look at the  list of characteristics for rifle, pistol and shotgun in the respective definition. If the firearm has at least one of the listed characteristics, the firearm is an “assault weapon.” If not, the firearm isn’t an “assault weapon.” That’s how the NYSAFE “assault weapon” test works. Apply it to your firearms.

IF SOME OF MY FIREARMS ARE ASSAULT WEAPONS, WHAT MUST I DO?

In my next post I will explain your duties under NYSAFE if you have one or more assault weapons.

Copyright © 2014 Roger J Katz (Towne Criour) All Rights Reserved.