NY SAFE: ON DETACHABLE MAGAZINES

RECAP

The ‘assault weapon’ is the cornerstone of NY SAFE. It’s a “new take” on an old strategy antigun zealots used two decades ago.  Former President Bill Clinton signed the “Assault Weapon Ban” into law in 1994. The “AWB” was a federal law.  So it affected the Nation. Fortunately, it had a sunset provision.  It expired in 2004. Exploiting the Sandy Hook Elementary School tragedy that occurred in December, 2012,  the antigun zealots resurrected the “AWB” in New York. The New York SAFE Act is a derivative of the “AWB.”  The SAFE Act was the first of a new wave of extraordinarily restrictive set of gun laws to be enacted in any jurisdiction following the Sandy Hook Elementary School tragedy. The mainstay of these new antigun laws is the “assault weapon.” The antigun zealots created the notion of  ‘assault weapon’ to undermine the Second Amendment. They realize the “assault weapon” is the most effective means available to dismantle the Second Amendment. And, so they are using it anew in a flurry of new legislation across the Country as they wage a constant war against the Second Amendment.

What is the “assault weapon?” The “assault weapon” is a legal fiction. Antigun groups created it for one purpose: to confiscate guns. Simply call a firearm an assault weapon and ban it. The SAFE Act is the new model for restrictive firearms sweeping the Country on both the State and Federal level. It employs the notion of ‘assault weapon’ extensively. So far, the SAFE Act limits assault weapons to semiautomatic guns but for one exception.  Revolving cylinder shotguns aren’t semiautomatics, but they are assault weapons by definition. Apart from revolving cylinder shotguns, all assault weapons are semiautomatics. But, for the moment at least, not all semiautomatics are assault weapons. Said another way, no weapon is an assault weapon if it isn’t also a semiautomatic, except for revolving cylinder shotguns. But, some semiautomatics aren’t assault weapons. So, except for the revolving cylinder shotgun, if your firearm isn’t a semiautomatic, it isn’t an assault weapon. Do not examine it further. But if it’s a semiautomatic, you must examine it further. We discuss extensively the assault weapons’ testing procedure under NY SAFE in the Arbalest Quarrel March 16, 2014 post.

Apart from revolving cylinder shotguns, semiautomatic pistols and rifles typically have detachable magazines. Keep in mind: no semiautomatic pistol or rifle is an assault weapon unless it’s “capable of accepting a detachable magazine.”For a pistol or rifle to be considered an assault weapon under the SAFE Act, the ability of the pistol or rifle to accept a detachable magazine is necessary. This means that no pistol or rifle is an assault weapon unless it’s semiautomatic in operation and it has the ability to accept a detachable magazine.

So, in order for a pistol or rifle to be an assault weapon under the SAFE Act, semiautomatic operation and the ability of the weapon to accept a detachable magazine are required.  They are necessary conditions but not sufficient conditions.  That means a pistol or rifle can’t be an assault weapon unless it’s a semiautomatic and it’s capable of accepting a detachable magazine. But, the ability of a semiautomatic pistol or semiautomatic rifle to accept a detachable magazine are not sufficient to turn the firearm into an assault weapon. The weapon must have at least one additional “assault weapon” feature. For a shotgun, the “assault weapon” tests are different. A shotgun must either operate by revolving cylinder or it must be a semiautomatic before the SAFE Act considers the weapon an “assault weapon.”  If the shotgun operates through a revolving cylinder, then it is an assault weapon, period.  The revolving cylinder feature is enough to satisfy the assault weapons test. If the shotgun is a semiautomatic, though, it must have one additional “assault weapon” feature before it’s considered an assault weapon under the SAFE Act. The ability of a semiautomatic shotgun to accept a detachable magazine is sufficient to turn it into an assault weapon under the SAFE Act.  The ability of the semiautomatic shotgun to accept a detachable magazine, then, isn’t merely a necessary condition. The ability of the semiautomatic shotgun to accept a detachable magazine is sufficient to turn it into an assault weapon.  This means that a semiautomatic shotgun is an assault weapon if it has a folding or telescoping stock, or a thumbhole stock, or a second handgrip or protruding grip that can be held by the non-trigger hand, or a fixed capacity in excess of seven rounds or an ability to accept a detachable magazine. So, for a semiautomatic pistol or rifle to be an assault weapon under the SAFE Act, the ability of the semiautomatic pistol or semiautomatic rifle to accept a detachable magazine is a necessary condition. And, for a semiautomatic shotgun to be an assault weapon under the SAFE Act, the ability of the semiautomatic shotgun to accept a detachable magazine is a sufficient condition. That is to say, the ability of the semiautomatic shotgun to accept a detachable magazine is sufficient, in and of itself, to turn it into an assault weapon.

CONFUSING TREATMENT OF “DETACHABLE MAGAZINE”

The SAFE Act’s treatment of detachable magazines is confusing. Not surprisingly, The Act’s treatment of detachable magazines has drawn criticism, not unwarranted. It has caused anger, resentment and even outrage. Consider a typical scenario. A person goes to a gun store to buy a semiautomatic pistol. The pistol comes with a detachable magazine, often two. The detachable magazine isn’t an item separate from the firearm. The “detachable magazine” is an integral part of the entire weapons package. The complete weapons package consists of receiver, barrel, trigger assembly and many other parts. NY SAFE treats the weapon and the detachable magazine as distinct items. The detachable magazine is potentially an illegal device. What does this mean? Under NY SAFE a semiautomatic weapon might be legal and the weapon’s magazine might be illegal. That’s odd. But under NY SAFE, that possibility exists. Are a semiautomatic and magazine two distinct devices or, properly considered, a unified weapons system? That’s a technical question. The answer is obvious. Can New York treat a semiautomatic pistol and its magazine as two distinct devices? That’s a legal question. In the recent case N.Y. Rifle & Pistol Ass’n versus Cuomo, 2013 U.S. Dist. LEXIS 182307, the District Court for the Western District of New York said, in dicta, citing an academic study, if the firearm implicates the Second Amendment so too must the right to load that weapon with ammunition implicate the Second Amendment. So, treating a weapon and the ammunition magazine as two separate devices is ridiculous. But, that’s what the SAFE Act does.

AN EXAMPLE

Consider. A stock “Glock 17 9×19” comes with a standard 17 round capacity magazine. Is it an assault weapon? Perhaps. We ask first: is the weapon a semiautomatic? If the answer is, “no,” we stop. The firearm isn’t an assault weapon. If, “yes,” we continue. The “Glock 17 9×19” is a semiautomatic. Is “Glock 17 9×19” an assault weapon? We don’t yet know. Perhaps. So, we continue with our test. We go to step 2. We ask, “does the weapon accept a detachable magazine? If not, we stop. The weapon isn’t an assault weapon.” But, if so, we continue. Now, the “Glock 17” “is capable of accepting a detachable magazine.” Is it an assault weapon? We still don’t know. Perhaps. So, we must continue. We go to step 3. If the “Glock 17 9×9” is an assault weapon, it must have at least one feature listed in Section 37 of the SAFE Act for pistols that are also assault weapons. “Does it have a folding or telescoping or thumbhole stock? Does it have a second hand grip or protruding grip that can be held by the non-trigger hand? Does it have the capacity to accept an ammunition magazine that attaches to the pistol outside of the pistol grip? Does it have a threaded barrel capable of accepting a barrel extender, flash suppressor, forward handgrip or silencer? Does it have a shroud that is either attached to or partially or completely encircles the barrel and permits the shooter to hold the firearm with the non-trigger hand without being burned? Does the weapon have a manufactured weight of 50 pounds or more when the weapon is unloaded? Or, is the pistol a semiautomatic version of an automatic rifle shotgun or firearm?” Apart from the last feature which is vague, we know a stock “Glock 17 9×19” has none of the “assault weapon” features. So, a stock “Glock 17 9×19” likely isn’t an assault weapon. But, it does have a detachable magazine. And the “Glock 17 9×19” has a magazine capacity of 17 rounds. So, we aren’t done with scrutiny of the weapon. We can’t stop with our testing of it. We have to go to Section 38 of the SAFE Act. This Section defines “large capacity ammunition feeding device.” It says in critical part: “ ‘Large capacity ammunition feeding device’ means a magazine, belt, drum, feed strip, or similar device, that . . . has a capacity of, or that can be readily restored or converted to accept, more than ten rounds of ammunition, or . . . contains more than seven rounds of ammunition, or . . . is obtained after the effective date of the chapter of the laws of two thousand thirteen which amended this subdivision and has a capacity of, or that can be readily restored or converted to accept, more than seven rounds of ammunition. . . .” A “Glock 17 9×19” magazine holds 17 rounds. That’s standard. So, the weapon’s magazine is a large capacity ammunition feeding under the SAFE Act. Does that affect you? If so, how? Let’s see. Let’s look at Section 41-b of the NY SAFE. “For purposes of this subdivision, a large capacity ammunition feeding device shall not include an ammunition feeding device lawfully possessed by such person before the effective date of the chapter of the laws of two thousand thirteen which amended this subdivision, that has a capacity of, or that can be readily restored or converted to accept more than seven but less than eleven rounds of ammunition, or that was manufactured before September thirteenth, nineteen hundred ninety-four, that has a capacity of, or that can be readily restored or converted to accept, more than ten rounds of ammunition. . . .” If the “Glock 17 9×19” magazine has a manufacturing date before September 13, 1994, then this Section 41-b of the SAFE Act says you can keep it. So, even though such a device is a large capacity ammunition feeding device, it is treated as if it weren’t. So, it is, but it isn’t. Are you confused? But, suppose you don’t know the manufacturing date. Or suppose despite, Section 41-b, another Section of the Act conflicts with Section 41-b. This presents a riddle. And, in fact we are presented with a real problem. See Section 46-a of the Act.

“It shall be unlawful for a person to knowingly possess a large capacity ammunition feeding device manufactured before September thirteenth, nineteen hundred ninety-four, and if such person lawfully possessed such large capacity feeding device before the effective date of the chapter of the laws of two thousand thirteen which added this section, that has a capacity of, or that can be readily restored or converted to accept, more than ten rounds of ammunition. An individual who has a reasonable belief that such device is of such a character that it may lawfully be possessed and who surrenders or lawfully disposes of such device within thirty days of being notified by law enforcement or county licensing officials that such possession is unlawful shall not be guilty of this offense. it shall be a rebuttable presumption that such person knows that such large capacity ammunition feeding device may not be lawfully possessed if he or she has been contacted by law enforcement or county licensing officials and informed that such device may not be lawfully possessed. Unlawful possession of a large capacity ammunition feeding device is a class a misdemeanor.”

AN INCONSISTENCY

Section 41-b of the SAFE Act says you can keep a large capacity ammunition feeding device made before September 13, 1994 you had lawfully owned. But Section 46-a says such possession is unlawful regardless. So, an exception exists under Section 41-b; but no exception exists under Section 46-a. Absent a Court challenge, the safest course of action is to surrender the device, transfer it outside New York, or make it inoperable for more than 10 rounds. This, of course is what the proponents of the SAFE Act want. The SAFE Act is designed to keep the firearms’ owner off guard. The Act is onerous. Governor Cuomo claims the SAFE Act does not target most weapons.  Yet, many gun owners have semiautomatic weapons. These are the weapons the SAFE Act mostly targets. Suppose you have a “Glock 17.” The SAFE Act allows you to keep it.  It’s not an assault weapon.  That’s true.  But, it’s also true you can’t keep the 17 round magazine. Yet, the ammunition magazine is an integral part of the weapon.  What, then, becomes of the weapon?  It becomes an expensive paperweight.  You can, of course, use the weapon as a club. But, one thing you can’t use the weapon for. You can’t use it as a firearm.

AN ABSURDITY

Apart from the inconsistency in the two Sections, 41-b and 46-a of NY SAFE, the absurdity of treating a single weapon as two devices should be at once plain. For, with the “Glock 17” a law-abiding gun owner has simultaneously and oddly a legal weapon and illegal ammunition feeding device. If you fail immediately to grasp the lunacy of this, let’s analogize a semiautomatic to a revolver handgun.

Consider a hypothetical. Suppose some revolvers are assault weapons under NY SAFE. Note: NY SAFE may extend the domain of assault weapons to include some or all revolvers. Now suppose NY SAFE says 45 caliber revolvers and larger calibers are assault weapons. Let’s say you have a .357 caliber revolver. That’s not an assault weapon. But, suppose NY SAFE says a revolver cylinder that can chamber over five rounds is illegal. So, let’s assume, as is usually if not invariably the case, that your .357 caliber revolver chambers 6 rounds. Now, what does that mean? Just this: you can keep the revolver, but you must surrender the cylinder. Do you see the problem? And that’s merely a hypothetical example. The “Glock 17 9×19” example isn’t. The problem is real. And the problem extends to more than Glock semiautomatics.

WRAP-UP

If the New York gun owning public must live with NY SAFE, at least the Act ought to be internally consistent. It isn’t. And the Act’s drafters ought at least have a passing acquaintance of gun operation. They don’t.

To suffer bad law is unfortunate. But, forced submission to State law that infringes a fundamental right is sinful.