What the Law-Abiding New York Firearms’ Owner Must Know about Governor Andrew Cuomo’s NYSAFE Act
In this post and the one that follows I discuss firearms transfers in New York. Exercising your sacred Second Amendment right merely to possess firearms in New York is no easy matter. Transferring a firearm to another is no easier. You have to know New York firearms laws: where to find them; what they mean; how they work; whom they impact.
NO END TO RESTRICTIVE FIREARMS LAWS
The NYSAFE Act provides new wrinkles to many laws that have operated in New York for years. The laws governing firearms transfers in New York are highly detailed and frustratingly complex. And locating all of them is a chore. You will not find them in one place. They are spread out over several legal sources. Some of the laws apply to all transfer situations. Many of them apply to particular transfer situations.
Assembling the laws is like piecing together a large and complex jigsaw puzzle. But, once you have completed the puzzle you aren’t done. You have to figure out what the puzzle means. I will provide you with a few clues.
HOW WE WILL APPROACH THE MATTER
In this post and the one following I will piece together the New York firearms laws pertaining to transfers. I will try to create a coherent pattern for you. I will cite the laws and tell you what they mean and how they work and operate in practice.
Together we will look at some of the more important firearms transfer laws and apply them to a few typical situations. I caution you at the start. This is not going to be an easy exercise or fun. This is not a game. Understanding the restrictive firearms laws of New York – where they are, what they mean, how they interact with and relate to each other – takes effort and time and patience. But understanding the laws you must. For, if you fail in this task, you have much to lose. You will lose your pistol license and long arm firearms permit. And that means you will lose your firearms. On top of that, you may face misdemeanor charges and possibly even felony charges. And, if that happens, you will never be able to possess a firearm lawfully in New York again. Indeed, you may not be able to possess a firearm lawfully in any other State. And that would be a sin. My job here is to prevent that from happening to you. Let’s get started.
WHAT YOU ARE UP AGAINST
If you are a New York resident, you know obtaining a firearm lawfully is no easy task. You may not also know but should know disposing of a firearm lawfully is no easy task either. Can you just give one firearm to the family member as you wish, sell a second firearm to a private party, unrelated to you, and be done with the matter? Hardly! You might think, “why not?” After all, my firearms are my personal property. But are they?
We will take a look at the notion of private property in connection with firearms in a later Article. The notion of private property is a pillar of our economic system. The right to keep and bear arms is a pillar of our political and social and legal systems. The right to own and possess firearms is the linchpin of our political and social and legal and economic systems – but not, apparently, in New York.
If you wish to purchase a handgun lawfully in New York, you need a license to do so. If you wish to transfer a handgun lawfully in New York, you need a license to do so. In New York City and in various other jurisdictions within the State of New York, you also need a long arm permit to lawfully purchase a rifle or shotgun. Whoever controls the licensing of firearms controls the possession of them. New York controls the issuance of firearms licenses and permits. So, logically, New York controls the ownership and possession and transference of firearms.
That in a nutshell is how New York strangles the Second Amendment to the United States Constitution. And that, in a nutshell, is how New York prohibits the free exercise of your sacred right to keep and bear arms. New York’s firearms laws operate in direct and defiant contravention to the meaning and purport of the Second Amendment. How that came to be we shall leave for another day.
POSSESSION OF FIREARMS IN NEW YORK IS A PRIVILEGE, NOT A RIGHT.
Once again, to obtain a firearm lawfully in New York is not an easy matter. To transfer a firearm to another is not any easier. Obtaining firearms, maintaining ownership and possession of them, and participating in the transfer of them are rigorously controlled exercises in New York. Why is that? For a simple reason: New York considers the possession of firearms to be a privilege, not a right. That basic idea – simple and presumptuous and monstrous in the assertion – is a “fact of life” in New York. Many New York residents do not worry over it. But the idea that firearms ownership and possession is a privilege rather than a right has ripple effects across New York firearms law.
Codified in Statute, echoed in New York Court decisions, cemented in the New York resident’s consciousness, the regulation of firearms is a loathsome and ponderous and costly enterprise. It is also the hallmark of the Police State.
Is that in store for the rest of us? Governor Cuomo hopes so. “President” Cuomo would make it so. New York has some of the most restrictive and complicated and lengthy set of firearms laws in the Country. Governor Cuomo does not deny that. Quite the contrary! He revels in the fact of it. He says as much. Take a look at his website. He says: “The Safe Act . . . imposes the toughest weapons ban in the country.” If you are unhappy with this, the Governor has an answer for you: you should leave the State. Various news sources have pointed to an odd comment the Governor recently made. He said, among other things, “pro-assault weapons . . . have no place in the State of New York because that’s not who New Yorkers are.” Oh, really?
OUR RESPONSE TO GOVERNOR CUOMO
We, unlike Governor Cuomo, do not see a benefit to NYSAFE. It is a travesty. And the body of New York firearms laws operates essentially as a deception. But, I am not going to rail against New York’s restrictive “gun laws” in this post. That serves no useful purpose. That does nothing to help you understand and cope with New York’s loathsome and cumbersome firearms laws.
But I will say this: New York’s firearms laws are unconstitutional. They are inconsistent with the Second Amendment to the United States Constitution. You know this. What you may not know is that New York’s restrictive firearms laws are inconsistent with recent U.S. Supreme Court decisions as well. But until the New York State Courts or the Federal Courts strike down these unconstitutional laws or the New York State Legislature repeals them, we are stuck with them, and so, must deal with them. I have made a similar point in my first Article, posted in September of last year. And I stand by the point made.
You do not ignore a problematic law. You learn how it works. It exists. So you operate within it so long as it exists, if only to do so grudgingly. You undercut an unconstitutional law through the legislative or judicial process. That is what you must do. That is not what I alone am able to do for you. Rather, in this post I discuss the lawful disposing of firearms in New York. I will deal with this matter frankly and, hopefully, clearly for you.
WHAT IS THE FORMULA FOR TRANSFERRING FIREARMS IN NEW YORK?
You would like to have the formula for this. And I would like to give that formula to you. But I can’t. There isn’t one. So, I cannot supply you with one. And, look as you might, you won’t find one. An easy to understand, straightforward formula does not exist. Different situations call for different procedures. Such an undertaking is massive. I would have to write a book to even try.
Why is this so? New York’s firearms laws are difficult to fathom. They are a tangled mess. This might be by accident – given the sheer number of them – but more likely this is by cold and calculated design.
Part of the problem is that New York’s firearms laws do not show up in one place. They are spread out over several legal source materials. Consider gun transfers. Our first task is to locate the laws we need. Once we find them – no easy task in itself– we need, second, to understand what they say. That too is often difficult as many of the laws are vague, inconsistent, ambiguous or incoherent. And, once we have found the applicable laws, assembled them, translated them into plain English, and figured out how each of them works and relates to the other, we must then apply them to the specific situation.
If you get this wrong, the transfer is unlawful. And the matter doesn’t stop there. For your troubles, you risk revocation of your pistol license and long arm firearms permit. And then you risk the loss of your firearms. And you may face misdemeanor charges and possibly felony charges as well.
This of course what the “antigun” politicians and “antigun” fanatics want. This is what they would like to see. They would like you to make a mistake. Why is that? The reason is this: the confiscation of your firearms means one less American has access to his or her firearms. And the Second Amendment is thereby undermined. So too the concept of private property rights is undermined.
THE LAWS GOVERNING THE LAWFUL DISPOSING OF FIREARMS IN NEW YORK PREDATE NYSAFE AND THOSE LAWS ARE VALID.
The difficulty transferring firearms from one person to another predates NYSAFE. NYSAFE simply adds new wrinkles to an already rigorous and tedious and laborious task. To get this right you have to first ask the right questions. Once you pose the right questions, you must search the law for the right answers. Do you wish to transfer a firearm to a family member or to a non-family private person? Does the person live in New York or reside outside the State?If the person lives in New York, where in New York does he or she live? Does that person reside in New York City or outside New York City? What kind of firearm do you wish to transfer? Is the firearm a handgun or a long arm? Is the firearm defined as an “assault weapon?” Or is it merely an “ordinary” weapon?
Before you transfer a firearm you must ask these questions and others. You must clarify what firearm you wish to transfer, whom you wish to transfer the firearm to, know where that person resides; and you must know the status of that person – whether the person to whom you wish to transfer a firearm is allowed, under the applicable laws, to possess a firearm at all.
You must clarify the entirety of the transfer situation posed before you take steps to make the actual transfer of a firearm. So, once you have posed the necessary questions concerning the nature of the firearms transaction you wish to make, you must be able to answer those questions frankly and fully and honestly. And there is a good reason for this.
The procedures for transferring a firearm lawfully differ from one situation to another. If you apply the wrong procedure, you will mess up. That is not what you want to do. But that is an easy thing to do.
Finding your way around New York’s myriad firearms’ laws is like being trapped in a “Twilight Zone” episode. And if you happened to see some of those episodes, you know the stories often end badly for the protagonists. Similarly, for the firearms owner, New York is a strange – even eerie – place to live. The police departments are not friends of New York’s firearms’ owners. The police departments are less likely to assist you than call you out for a wrong transfer – and that is what you must guard against.
To help you navigate through this kaleidoscopic nightmare we will look at a few typical situations. I will begin with several assumptions. These assumptions are responsive to the above questions and form the basis for the situations posed. We will look at the laws governing firearms transfers for those situations. We will apply those laws to the situations posed. As we proceed, you will see the procedures are highly detailed. Penalties for failing to adhere to the procedures are severe. Let’s begin.
I will assume you are a New York City resident and have both a valid pistol license and valid long arm permit. I will assume further you have several pistols and long arms in your collection. I will further assume you purchased all firearms lawfully and some of those firearms are defined as assault weapons under NYSAFE. If you purchased firearms defined as ‘assault weapons,’ this means that you are in possession of weapons that you purchased lawfully prior to enactment of NYSAFE. Weapons, defined as ‘assault weapons,’ can no longer be acquired lawfully in New York. I will assume you wish to make several firearms transfers and that you wish to transfer firearms to four individuals. Three individuals reside, like you, in New York City. One person resides out of State. I will assume you also wish to make a bequest of firearms in your last will and testament.
And let us say three of the private persons to whom you wish to transfer firearms are unrelated to you and the remaining person to whom you wish to transfer a firearm is a family member. I will also assume for the purpose of this study that the family member, although a resident of New York City, does not live with you. And I will assume further that one of the NYC residents, other than a family member, to whom you wish to transfer a firearm, is an active duty N.Y.P.D. police officer. And I will assume the second NYC resident to whom you wish to transfer a firearm is a private individual. I will further assume the fourth individual to whom you wish to transfer a firearm is a friend who lives out of State. And I will assume that two of the New York City residents – the family member and the private person, unrelated to you – both have valid firearms licenses and permits as you do.
I will also assume, as is true, the third New York City resident, the active duty police officer, does not need a valid pistol license or long arm permit to possess a firearm. State law does not require an active duty police officer – a public employee – to secure a firearms license to possess firearms. He has a badge. That’s enough. But all private New York State residents, other than police officers or peace officers, require a pistol license to possess handguns. And in New York City and in a few New York Counties, a rifle and shotgun – long arm – permit is required as well.
Now, apart from the firearms you wish to dispose of during your lifetime, let’s assume lastly you wish to bequeath, to various members of your family, through your last will and testament, your remaining firearms.
These then are the assumptions. These assumptions frame the firearms transfer situations that form the basis of our discussion and case study that follows.
The basic fact patterns boil down to this: One: you wish to sell a shotgun to a private citizen in New York City who is not related to you. Two: you wish to give one revolver handgun and one rifle to a New York City family member who does not reside with you. The rifle is defined as an ‘assault weapon’ under NYSAFE; the revolver handgun is not. Three: you wish to sell one handgun – a semiautomatic pistol – to an active duty N.Y.P.D. police officer. Four: you wish to sell a rifle, defined as an assault weapon in the NYSAFE Act, to a friend who lives out of State. Five: you wish to bequeath all remaining firearms in your collection to family members. Some of those firearms you wish to bequeath to family members are defined as ‘assault weapons’ and some are not.
A WORD ABOUT “ASSAULT WEAPONS”
If you wish to transfer a firearm defined in NYSAFE as an “assault weapon,” you must be particularly careful. I have said much about “assault weapons” in previous posts and will have more to say about “assault weapons” both in this and future posts. The salient point I wish to make about firearms defined as ‘assault weapons’ is this: The “assault weapon” is a political construct and a legal fiction, created for one purpose and one purpose only: to separate you from your firearms. It is the fuel that feeds the engine of firearms restrictions and firearms confiscation.
Understand: firearms legislation – whether in New York or any other jurisdiction – rests upon the notion that Americans should not have possession of firearms, period. Unconstitutional, restrictive firearms laws operate more effectively through outright bans of firearms than through laws governing the possession, ownership and use of them.
We have seen this before. Consider an American’s possession of fully automatic or selective fire weapons. Why shouldn’t a law-abiding citizen have the right to possess a submachine gun or an assault rifle? My question is serious, not frivolous or rhetorical.
So, once again: Why shouldn’t a law-abiding citizen have the right to possess a submachine gun or an assault rifle? The question doesn’t even arise in public discourse. There is no public debate on it. Indeed the mere thought of a law-abiding American citizen possessing a fully automatic or selective-fire weapon is considered an anathema – beyond the pale of rational discourse.
But why is that? Certainly the Second Amendment does not constrain your possession of a submachine gun or an assault rifle. They are personal, hand-held weapons. Your possession of them is consistent with and flows directly from the Second Amendment. You do not present an inherent danger to self or others in the mere possession of them. So, why can’t you own and possess them?
You cannot own or possess a submachine gun or an assault rifle because those in power do not wish for you to have them. And there is no debate. “That is that.” Case closed! You, as well, have probably not bothered to consider your right to own selective fire or fully automatic weapons. And the reason is plain. As decades have passed since Federal and State law prohibited access to such firearms by the average American citizen, Americans have grown accustomed to the loss of them.
A similar strategy is underway for a slew of weapons that, until recently, the law-abiding New York resident could possess. Such, then, is the strategy behind use of the words, ‘assault weapons’ as well. And such is the strategy behind restrictive firearms laws, restraining and constraining possession of firearms to which the appellation “assault weapons” is affixed.
Firearms designated, “assault weapons,” will soon be as scarce as those referred to as “machine guns.” That, at any rate, is the hope of “antigun” politicians and other “antigun” fanatics. The “antigun” groups hope the Public will grow accustomed to the loss of such weapons. And, as fewer Americans have access to them, the discussion over one’s right to possess them will become more sporadic and finally cease. Years later, debate over one’s right to possess “assault weapons” will seem as aberrant and irrational as a debate over possession of “machine guns” may seem among many individuals today. That is the hope of the “antigun” groups and their allies in Congress and in the State Legislatures across the Country.
Today, the “antigun” fanatics and their political allies compare firearms designated ‘assault weapons’ to the submachine guns and assault rifles that preceded them – guns that must be banned. And, once those firearms are banned, the “antigun” politicians and “antigun” groups will work to ban other firearms. These groups — although loathe to admit it on the airwaves — wish to ban all firearms. They certainly denigrate firearms. Thus, they seek to designate all firearms, ‘assault weapons.’ Perhaps they will come up with another expression to describe double action and single action revolver handguns they next wish to ban.
These “antigun” groups and allies in Congress and in the State Legislatures across the Country hope the very notion of firearms will be viewed an anachronism, like hoop skirts and buggy whips. As Americans grow accustomed to the loss of firearms of any sort, the debate over one’s right to possess firearms will, as well, become incongruous and moot. At that point, the Second Amendment will have been effectively repealed.
What, then, are we to make of “assault weapons?” Answer: nothing really. No universal definition exists for the expression. But, for our purpose here, “assault weapons” are whatever NYSAFE says they are. The nature of the firearm is not changed thereby. But a law can change our relation to it — must change our relation to it. And that is the insidious nature of New York’s firearms laws. The laws compel New York firearms’ owners to turn upon themselves. And for what? For having the audacity to invoke their Second Amendment Right to keep and bear arms? The entire argument of weapons’ possession generally and possession of “assault weapons” particularly has little if anything to do with “public safety.” That is nothing more than a dodge. Rather, when all is said and done, the “antigun” zealot is merely harping on a personal aesthetic concern, not a meaningful societal one.
Under NYSAFE the range of firearms falling into the orbit of “assault weapons” has broadened. At the moment New York firearms laws are targeting semiautomatic pistols and rifles and – although you may not be aware of it – revolving cylinder shotguns as well. The drafters of NYSAFE wish to make “assault weapons” obsolete in New York.
And the range of pistols and rifles and shotguns deemed assault weapons in New York will grow. Note: I did not use the word ‘may.’ I used the word, ‘will,’ for a reason. I did so for a good reason.
If NYSAFE and the Penal Laws underlying NYSAFE are not repealed, further firearms will be included in the orbit of assault weapons – banned firearms – and the erosion of our Second Amendment rights will continue unabated. That will come to pass. That is a goal of “antigun” politicians and “antigun” zealots around the Country. That is what they want: to ban possession of firearms outright. Exceptions will be stated with particularity in law and those exceptions will be narrowly drawn. They will include the police and military and certain wealthy and powerful and prominent individuals considered “elite.” The firearms laws will deem such groups and individuals trustworthy by the State. Contrariwise, the law will construe the “average” American citizen as untrustworthy, potentially dangerous – mere rabble and unworthy of possessing firearms.
The law “will look down” upon the average American citizen much as the Roman patrician “looked down upon” the Roman plebian. Restrictive firearms laws are grounded on the idea the average American cannot be trusted. The State assumes the role of protective parent and operates on the precept the State must be protected from the Public and the Public must be protected from “Itself.” That is truly an anathema. That is contrary to the very concept of a Republic. Should we not have a public debate?
Keep in mind: the phrase ‘assault weapons’ is equivalent in meaning to the phrase ‘illegal guns’ or ‘illegal weapons’ or ‘banned guns’ or ‘banned weapons.’ Governor Cuomo and the other “antigun” zealots prefer to use the phrase ‘assault weapons’ rather than the phrase ‘banned guns’ or ‘illegal guns’ or ‘banned weapons’ or ‘illegal weapons.’
There is a reason for this. By using the phrase ‘assault weapon’ instead of the phrases ‘banned gun’ or ‘illegal gun’ or ‘banned weapon’ or ‘illegal weapon,’ Governor Cuomo focuses attention on the purported safety issue of firearms restriction rather than on the bald infringement of a Constitutional Right. Apparently he believes he can get the public on board with the phrase, ‘assault weapons.’ Were he to use the phrases ‘banned guns,’ or ‘illegal guns’ or ‘banned weapons’ or ‘illegal weapons,’ he focuses direct and awkward attention on his real aim: to take firearms out of circulation and out of the hands of the Public. Safety concerns are then tangential to the true aim, assuming safety concerns are the Governor’s “real” motivation at all for banning “assault weapons.”
The primary goal of the Governor and the “antigun zealots” in the State Legislature and around the Country and internationally is to separate the American public from their guns.” But that will not play well. So talk is directed to purported “safety issues” instead. This is done to confuse the Public and to defuse righteous anger toward the de facto repeal of the Second Amendment to the U.S. Constitution.
But is the public truly fooled? “Assault weapons” are illegal weapons in New York. They are “banned guns.” Now, suppose the State Legislature enacted a law to criminalize possession of “banned guns” that the owner had acquired lawfully. That would be an example of an “ex post facto” law. Ex post facto laws are illegal. You cannot criminalize a New York resident’s possession of a “banned gun” in the present he had acquired lawfully in the past. So the State Legislature and the Governor considered another tack: mandate a new and repressive registration scheme for those who insist on keeping such “assault weapons.”
Now the Governor points to the ease of re-registering the firearms designated as “assault weapons.” What no one bothers to discuss though is why these firearms have to be re-registered at all. The Superintendent of State Police knows who has these weapons in New York and, so, knows they were properly and lawfully registered at the time of acquisition. So why do those weapons have to be re-registered as “assault weapons” now? Answer: they have to be re-registered to make life difficult for the New York resident who wishes to keep them. If the Governor has another rationale for the re-registration of firearms lawfully obtained in the past that he now calls, “assault weapons,” I, for one, would like to hear it.
As the number of firearms deemed “assault weapons” grows, the New York firearms owner who had acquired them lawfully will find more difficulty in keeping them and more difficulty in transferring them to another. Transferring a firearm designated under NYSAFE an “assault weapon” is strictly regulated in New York. And we will get into that. But my point is this: as more weapons fall under the rubric, “assault weapons,” there will be fewer of them. So, over time there will be fewer weapons available to the Public. Eventually revolver handguns and “high power” hunting rifles will be illegal too. They will be considered oddities in the same vein as assault rifles and submachine guns.
SO: HOW DO I LAWFULLY TRANSFER MY FIREARMS?
This is the ultimate question. And the correct answer depends upon the nature of the transfer you wish to make.
One correct answer exists for each situation as do many more incorrect answers. More to the point: you will find one right answer for each unique transfer situation and many wrong answers for each unique transfer situation. So, you must know all aspects of the transfer. That means you must know exactly what kind of firearms transfer you wish to make; to whom you wish to make the transfer; whether the transferee is qualified to possess the particular firearm; and the location of the transferee.
You must then pull out the appropriate New York firearms laws from the large kettle of existing firearms laws. And, lastly, you must apply the correct laws to the particular situation and in the right order – sequentially, as New York law demands.
If you falter at any point along the way, the transfer cannot lawfully take place. And for all your effort to effectuate a transfer, you face the revocation of your license and permit, the confiscation of your firearms, and the possible imposition of civil or criminal sanctions.
If you fail to understand New York law, you will be “in the kettle.” You won’t be able to transfer your firearms. That is certain. And that will be the least of your worries as you may face misdemeanor or even felony charges as well.
Although certain requirements cut across all firearms transfers, the actual procedures differ from situation to situation. But, before we get to a discussion of typical firearms transfer situations, I need to draw your attention to a point I made in an earlier Article.
In my first Article, posted in September last year, I told you what the NYSAFE Act is. I said: “The NYSAFE Act is a set of laws, not one law, but many laws. It is a grab bag of laws, wrapped into one thing.” This is an important point. Think of NYSAFE as a large vat holding newly minted restrictive firearms laws. These newly minted laws are given Section headings in NYSAFE. The laws are codified in a much larger – colossal – container: “The Consolidated Laws of New York.” The Laws compiled in NYSAFE are sprinkled here and there in various Sections of the “Consolidated Laws of New York.”
And restrictive firearms laws show up in other “vats” or “containers.” New York City, for example, has enacted restrictive firearms laws. And those laws, too, are spread over a number of legal sources: the New York City Administrative Code; the New York City Municipal Code; the Rules of the City of New York; and the City Charter.
The primary scope of this post is firearms transfers. We find NYSAFE does talk a little about transfers; but not enough; not nearly enough. NYSAFE is a stepping stone. But it is only a stepping stone. There are many other stepping stones.
Consider NYSAFE the first stepping stone. But to fully understand firearms transfers you must venture beyond NYSAFE. You must look to New York laws that predate NYSAFE. And the laws we need to look at are found all over the place.
You will also need to become familiar with certain terminology. Take the word, ‘transfer.’ The word appears several times in the NYSAFE Act. But, you will not find a definition for the word ‘transfer’ in NYSAFE. We need to look at the New York State Penal law for a definition. Section 265.00 of the State Penal Law does not define the specific word, ‘transfer.’ Rather New York’s Penal Law drops the word ‘transfer’ into a more general word: ‘dispose of.’ And State Penal Law does define the word, ‘dispose of.’ The word, “‘dispose of,’ means “to dispose of, give, give away, lease-loan, keep for sale, offer for sale, sell, transfer and otherwise dispose of.’”
So, now we know the word, ‘transfer,’ is included in the more general word phrase, ‘dispose of.’
Here’s another important point: New York law does not discuss your reason for “disposing of” your firearms.” The New York State Legislature that drafted New York’s restrictive firearms laws does not care about your reason for transferring your firearms. So, New York State Statutes do not govern your reason for disposing of your firearms. Whom you wish to transfer your firearms to and the manner in which you go about transferring your firearms is a concern of Governor Cuomo and New York law. Your reason for doing so is not.
Suppose you wish merely to rid yourself of your firearms. Suppose you wish simply to give your firearms to the Superintendent of State Police and be done with them. Both he and Governor Cuomo would be delighted “to dispose” of your firearms for you. Disposing of your firearms by turning them over to the Superintendent of State Police is not difficult. And that is not surprising. The Governor and the drafters of New York’s restrictive firearms laws want to make it easy for you to destroy your firearms. No complicated procedures; nothing to fuss over. Disposing of them in that way truly means “getting rid” of your firearms. The firearms would likely be melted down. And that would be a sin. But at least Governor Cuomo and the Superintendent of State Police and the drafters of NYSAFE and of the other firearms laws would be happy.
I presume though you wish to avoid the destruction of your firearms. So, “dispose of,” for you, does not mean ‘get rid of’ or “destroy.”
But here we run into traps and snares. I will point to those traps and snares. I will show you what you are up against. You have an inkling of that already. We will continue to look at important Sections of New York Law: both State Law and New York City Law. And we will touch briefly on Sections of the State Constitution as well. I will cite and translate those Sections for you. We will look at words and their meanings. There are steps you must take. Together we will work through the example situations I provided for you.
But I must address one more matter before we proceed. And that has to do with an important distinction between firearms and the ammunition you use with them. This post concerns the transfer of firearms between parties, only. I am not talking about the transfer of ammunition here. While you may think it reasonable to provide a “transferee” with ammunition along with the firearm you wish to transfer to him, don’t do it. Let me be blunt. Don’t even think about doing it! Let me say that again. Do not attempt to transfer ammunition! You cannot lawfully do so unless you are a “seller of ammunition.” And, I will assume here that you are not a seller of ammunition.
The expression, ‘seller of ammunition,’ is a ‘legal term of art.’ A ‘legal term of art’ is an expression defined in law. The expression, ‘seller of ammunition’ is defined in New York law. So ‘seller of ammunition’ is a legal term of art.
Be advised: Only a “seller of ammunition” can sell ammunition. The expression, ‘seller of ammunition’ is defined in Section 39 of NYSAFE. Section 39 of NYSAFE is codified in Subdivision 24 of Section 265.00 of the Penal Code. The phrase ‘seller of ammunition’ means: ‘any person, firm, partnership, corporation or company who engages in the business of purchasing, selling or keeping ammunition.’
How a “seller of ammunition” can do that is explained in Section 50 of NYSAFE. Once again, I assume you, the reader, are not a “seller of ammunition.” So, that Section does not apply to you and does not concern us here. This post is limited to a discussion of firearms transfers, not transfers of ammunition by “sellers of ammunition.” Let’s continue.
Be aware too: you cannot lawfully “dispose of” a loaded firearm. So: do not try to transfer a “loaded firearm” to anyone, ever! You cannot lawfully do so.
The expression, “loaded firearm” is defined in Subdivision 15 of Section 265.00 of the Penal Law of New York. It means: ‘any firearm loaded with ammunition or any firearm which is possessed by one who, at the same time, possesses a quantity of ammunition which may be used to discharge such firearm.’
A loaded firearm cannot be lawfully transferred. So, before transferring a firearm make certain – absolutely certain – it contains no ammunition.
Let’s now get to the nitty-gritty.
As I said, whom you transfer a firearm to and the manner you go about it are two matters of critical importance. Your reason for doing so is not.
How you go through the process of lawfully transferring a firearm is not easy to master. We will need to look at many legal sources in order to get this right. And, keep in mind: if you wish to transfer a firearm that NYSAFE designates an “assault weapon,” certain laws come into play and special requirements must be met before you can do so – assuming you can do so lawfully at all. The kinds of parties to whom you can transfer an “assault weapon” are very few in number. And the manner in which you can lawfully proceed with the transfer of an “assault weapon” must be adhered to in minute detail. You may thank the drafters of the NYSAFE Act and Governor Cuomo for that.
Apart from NYSAFE and other Sections of State law, we will take a look at the State Constitution. And, as I mentioned earlier, we will take a look at the New York City Administrative Code and the New York City Municipal Code. And we will take a look at the Rules of the City of New York and at the New York City Charter.
In this exercise I draw your attention to two words you should familiarize yourself with: ‘transferor’ and ‘transferee.’ The “transferor” is the person who transfers the firearm to another. And he does this by selling it or exchanging it or otherwise disposing of it in some manner. And as you learned, the notion of “transferring a firearm” is very broad. And the “transferee” is, logically, the party who takes possession of the firearm.
The “transferee” is the party who receives the firearm. And he receives a firearm often as a gift or through a sale or exchange. As for the nature of the transfer, I will use words such as ‘transfer’ and ‘sale’ and ‘dispose of’ interchangeably.
And remember: under New York law, your reason for “disposing of” a firearm is unimportant. New York law is not concerned about that. New York law deals only with the manner of transfer, not your reason for doing it. To make a lawful transfer, you, the transferor, must keep in mind five basic and critical questions: Who is the transferee? Where does the transferee live? What kind of firearm do I wish to transfer to that transferee? Is the transferee qualified to possess a firearm at all? And, lastly, assuming the transferee is qualified to possess firearms, is the transferee qualified to accept the particular type of firearm I wish to transfer to him? After I have asked and answered these five questions, we then ask and do our best to answer: How do I proceed with the lawful transfer of the firearm so I am in compliance with the transfer laws of New York?
Let us now take a look at a few key provisions of State law.
We will look at Section 17 of NYSAFE first. Think of Section 17 as the key “Transfer Provision.” It is titled: “PRIVATE SALE OR DISPOSAL OF FIREARMS, RIFLES AND SHOTGUNS.”
That Section of NYSAFE is codified in ARTICLE 39-DDD of the General Business Law. This is a brand new part of New York State law.
The first paragraph of Section 17 says this: “In addition to any other requirements pursuant to state and federal law, all sales, exchanges or disposals of firearms, rifles or shotguns shall be conducted in accordance with this section unless such sale, exchange or disposal is conducted by a licensed importer, licensed manufacturer or a licensed dealer, . . . when such sale, exchange or disposal is conducted pursuant to that person’s federal firearms license or such sale, exchange or disposal is between members of an immediate family. For purposes of this section, immediate family shall mean spouses, domestic partners, children and step-children.”
SO: WHAT DOES THE FIRST PARAGRAPH OF SECTION 17 MEAN?
Section 17 makes plain all firearms transfers “shall be conducted in accordance with this Section.” And that is so “unless” the transferee falls within certain exceptions. And those exceptions are set forth with particularity in Section 17.
Note: the first line of Section 17 also says that this Section is “in addition to any other requirements pursuant to State and Federal law.” So we know that before making a transfer, there are other Statutory Sections of State and possibly Federal Law we must look at.
As mentioned, Section 17 also provides certain exemptions. This means that, for certain persons or other legal entities, Section 17 does not apply.
DOES SECTION 17 APPLY TO YOU?
The answer to that question: “it depends.” Remember what I said: whom you transfer a firearm to and how you go about it are critical matters. Why you choose to do so is irrelevant.
Let’s get another matter out of the way. I will assume you are not a licensed importer, licensed manufacturer or licensed dealer and that you do not have a federal firearms license. For these sample situation exercises, you are a private citizen and resident of New York and do not have any license other than a valid New York pistol license and New York City rifle and shotgun permit. So your ability to possess firearms and to transfer them are immediately very limited in scope.
This takes us to our basic questions: Who is the transferee? Where does the transferee live? What kind of firearm do I wish to transfer to that transferee? Is the transferee qualified to possess a firearm at all and, if so, is the transferee qualified to accept the specific firearm I wish to transfer to him?
Now go back to the example situations I laid out for you. You desire to transfer firearms to one family member and to three individuals, who are unrelated to you, two of whom live, like you, in New York City, and one of whom lives out of State. Of the two parties unrelated to you who live in New York City, one of the parties, unrelated to you, to whom you wish to transfer a firearm, is a public employee and active duty N.Y.P.D. police officer. The other party, unrelated to you, to whom you wish to transfer a firearm, is a private citizen. The third person to whom you wish to transfer a firearm is a private person who lives out of State. Section 17 says the Section does not apply to family members. But we have to be careful as to the meaning of ‘family member’ in the context of Section 17 of NYSAFE.
WHO ARE FAMILY MEMBERS UNDER SECTION 17?
Section 17 says family members are “spouses, domestic partners, children and step-children.” So, even though aunts and uncles and nieces and nephews are family members in the ordinary sense of the expression, they are not considered family members for the purpose of and within the meaning of Section 17.
They are not “immediate family.” So we know Section 17 applies to some but not to all family members. It does not apply to “immediate family members” as defined in Section 17. It does apply to individuals who are not immediate family members. So: Section 17 does apply to all family members who are not “immediate family.”
Be careful, too, not to read into a Statute something not there. The inverse is true too. Don’t presume to exclude something that the Statute logically implies even if not expressly stated. In the context of Section 17 do not assume the Statute is directed to New York residents only. For example, our fact situation includes a transfer of a firearm to a person, unrelated to you, who lives out of State. The language of the Statute does not suggest a limitation in its application to certain New York residents only. A prospective out of State transferee who is not immediate family does fall within the purview of Section 17. So you must comply with the provisions of Section 17 for that individual.
Now, suppose the out of State transferee is a member of your “immediate family” as the expression “immediate family” Section 17 of NYSAFE. If that were true, then Section 17 of NYSAFE does not apply. Remember the residence of the transferee is not a factor in the application of Section 17 of NYSAFE to a transferee. The relationship of the transferee to the transferor is a factor. In other words the relationship of the transferee to you, the transferor is decisive of the applicability of Section 17; the jurisdiction of the transferee – where the transferee lives – is not.
And Section 17 also applies to private persons unrelated to you unless, as set forth in Section 17, a person or other legal entity falls under another exception. Those other exceptions do not, at the moment, concern us here.
The first paragraph of Section 17 is then an “exemption” or “exception” provision.
So, what does that mean?
Once again, Section 17 means just this: if you wish to give one of your firearms to an “immediate family member,” Section 17 does not apply. An immediate family member is “exempted” from the application of Section 17. If, however, you wish to transfer a firearm to a person who is not an “immediate family member” – whether this transfer is a gift or a sale or an exchange – Section 17 does apply, unless that transferee falls under another exception. Keep in mind, too: where the transferee resides – within New York or outside the State – is not a factor that comes into play. So, whether a transferee resides within New York or outside the State is not determinate of Section 17.
But, what about active duty police officers who are not immediate family members? Does Section 17 apply to firearms transfers made to active duty police officers who are not immediate family members? We will get to that question once I discuss the transfer of a firearm to the active duty N.Y.P.D. police officer in our fact pattern for that situation. But first we have to take a look at what Section 17 tells us to do. For that, we have to look at the second paragraph of Section 17.
The second paragraph of Section 17 of NYSAFE tells us this: “before any sale, exchange or disposal pursuant to this article, a national instant criminal background check must be completed by a dealer who consents to conduct such check. . . .”
The second paragraph of Section 17 says that, before you can transfer a firearm to a person, who is not a member of your “immediate family” or who is otherwise exempted from application of Section 17, a “National Instant Criminal Background Check” must be completed of that person. So, generally, if you wish to sell a firearm to a person or simply give a firearm to a person, that person must first undergo the instant criminal background check. So, does the “National Instant Criminal Background Check” apply to immediate family members as well? Once again, the answer is, “No!”
If you wish to transfer a firearm to an immediate family member as defined – whether by gift or sale or exchange – the family member is exempted from the instant criminal background check provision. A member of your immediate family does not have to go through a criminal background check. Everyone else does – whether that person resides in New York or outside the State unless the transferee falls under another exemption.
Now assuming an instant criminal background check is required, how do we go about doing that? Section 17 of NYSAFE tells us what we have to do. The second paragraph of Section 17 sets forth in full: “before any sale, exchange or disposal pursuant to this article, a National Instant Criminal Background Check must be completed by a dealer who consents to conduct such check, and upon completion of such background check, shall complete a document, the form of which shall be approved by the superintendent of state police, that identifies and confirms that such check was performed.”
Let us look at two more paragraphs of Section 17 before proceeding with our fact situations. The fourth paragraph of Section 17 of NYSAFE is a companion paragraph to the third. It says: “A dealer may require that any sale or transfer conducted pursuant to this section be subject to a fee of not to exceed ten dollars per transaction.”
The sixth paragraph of Section 17 is an enforcement provision. The sixth paragraph says: “any person who knowingly violates the provisions of this article shall be guilty of a class a misdemeanor punishable as provided for in the penal law.”
This takes us to our first case study: the transfer of a revolver handgun and assault weapon rifle to a family member who lives in NYC.
So, let’s say you wish to transfer a revolver handgun in your firearms collection and you wish to transfer a rifle, defined as an assault weapon under NYSAFE, to a family member who resides in NYC but who does not live with you. Can you make the transfer of both of those firearms? Does New York law permit you to make the transfer of one of the firearms but not the other? Or does New York law forbid the transfer of both firearms? Let’s see.
Let us consider a few scenarios within this fact situation. Let us suppose you wish to transfer these firearms to an adult son who has a valid pistol license and a valid rifle and shotgun permit. We now know you do not have to proceed with an instant criminal background check on him. He is an “immediate family” member. So we are spared the Section 17 requirement of conducting an instant criminal background check on him. Now suppose you did not know that and went to a licensed firearms’ dealer and requested an instant background check. And assume that the firearms dealer did undertake a background check on your son and found no record. What then? Well, the law does not say you cannot proceed with an instant background check where none is required. So you just did something you need not have done. You broke no laws and will suffer no consequence. There is nothing in: Section 17 to preclude having an instant criminal background check performed where none is required.
So, what is the next step?
NYSAFE does not provide us with a specific set of procedures. Section 17 of NYSAFE says only that you must comply with other State and federal laws. Well, under State Law, you must be careful whom you transfer a firearm to. New York maintains a general prohibition on the possession of firearms absent a license.
The requirement for licensing is set forth in New York State Penal Law Sections 265.01 through 265.04 and Section 265.20. And, Section 400.00 of the New York State Penal Law is the exclusive statutory authority for the licensing of firearms in the State.
These Statutory Sections together establish that no one in New York can lawfully possess a firearm absent a license to possess unless that person falls within a specific firearms licensing requirement exemption. By logical implication these Statutory Sections proscribe — that is to say forbid – the transfer of a firearm to a person who does not have a valid license unless the person is exempted by State Statute from the licensing requirement.
Now, we have posited in our fact situation that the transferee, your son, an immediate family member, does have a valid pistol license and a valid rifle and shotgun permit. So we know State law does not prohibit your son from possessing firearms. But, before we look at the procedures governing a lawful transfer of firearms – in this instance, a revolver handgun and a rifle that is designated an “assault weapon” under NYSAFE – we need to look at whether applicable New York law allows or forbids the transfer of one or both of the specific types of firearms to your son.
Let’s look at this firearms transfer situation more closely. Again, you, the transferor, and your son, the transferee, both have valid pistol licenses and long arm permits.
SO: CAN YOU TRANSFER ONE OR BOTH OF THE FIREARMS TO YOUR SON?
In this case study you want to transfer two firearms to your son, an immediate family member: a revolver handgun and a rifle that NYSAFE defines as an ‘assault weapon.’ Can you transfer both weapons to your son? Let’s see.
Nothing in New York State law prohibits the transferring of the revolver handgun to your son. You both have valid pistol licenses and both of you can lawfully possess a handgun in New York. So, the transfer of the revolver handgun to your son can take place.
If the only question remaining were how to effectuate the transfer of the revolver handgun, we could then proceed to look at the applicable laws detailing the actual transfer of the handgun.
But, in this fact pattern, you want to transfer the rifle to your son as well – a firearm designated an “assault weapon” under NYSAFE. So, can you also transfer the rifle that NYSAFE designates an assault weapon to an immediate family member?
Now, you are permitted to retain possession of the weapon because you purchased it lawfully prior to enactment of the NYSAFE Act. The question we need to answer is whether you are permitted under the firearms laws of New York to transfer the weapon, now designated an illegal “assault weapon,” to your son.
Well we can muddle over this all we want. But, we cannot assume that a weapon you lawfully purchased at one point in time is, ipso facto, transferable to anyone else at another point in time even if you seek only to transfer the weapon to your son, who, like you, also has a valid New York City rifle and shotgun permit.
What we have to do is take a look at NYSAFE. Does the NYSAFE Act permit the transfer of an assault weapon lawfully acquired prior to enactment of NYSAFE? Suppose the answer is generally, “no.” If so, does NYSAFE provide an exception? Would a transfer of an “assault weapon” to an immediate family constitute one permissible exception to the general rule against assault weapon purchases and transfers in New York?
Well, after review of the applicable law, we run into a snag.
NYSAFE sets forth clear limitations in the lawful transferring of the rifle – an “assault weapon.” Although you, the transferor, can continue to keep the weapon because you purchased it lawfully prior to enactment of NYSAFE – so long as you properly register the firearm as an assault weapon – you are prohibited from transferring it to anyone in New York subject to very narrow exceptions. And those exceptions do not include the transfer of an “assault weapon” to a family member, even a close – “immediate” – family member. Here’s why.
The answer is found in paragraph H of Section 37 of NYSAFE. This paragraph is codified in Subdivision 22 of Section 265.00 of the Penal Code of New York. It reads in full: “any weapon defined in paragraph (E) or (F) of this subdivision and any large capacity ammunition feeding device that was legally possessed by an individual prior to the enactment of the chapter of the laws of two thousand thirteen which added this paragraph, may only be sold to, exchanged with or disposed of to a purchaser authorized to possess such weapons or to an individual or entity outside of the state provided that any such transfer to an individual or entity outside of the state must be reported to the entity wherein the weapon is registered within seventy-two hours of such transfer. An individual who transfers any such weapon or large capacity ammunition device to an individual inside New York State or without complying with the provisions of this paragraph shall be guilty of a class a misdemeanor unless such large capacity ammunition feeding device, the possession of which is made illegal by the chapter of the laws of two thousand thirteen which added this paragraph, is transferred within one year of the effective date of the chapter of the laws of two thousand thirteen which added this paragraph.”
This Section of the New York State Penal Code is directed, in part, to specific individuals who had purchased firearms, defined under Section 37 of the NYSAFE Act as ‘assault weapons.”
Paragraphs E and F of Section 37 of the NYSAFE Act” are “grandfather provisions.” This means firearms that are now illegal to acquire and to own and to possess in New York – namely as of the date of enactment of the NYSAFE Act – can still be legally owned and possessed by those who happened to acquire them lawfully prior to enactment of NYSAFE. These paragraphs are directed, then, solely to individuals who lawfully obtained firearms prior to enactment of NYSAFE.
Paragraph H of Section 37 of the NYSAFE Act also sets forth with particularity the parties to whom such weapons may be lawfully transferred.
Paragraph H of Section 37 explains – among other things – how one may lawfully dispose of those weapons and to whom. We learn that the parties to whom we can transfer “assault weapons” are narrowly circumscribed. They include persons out of State and specific parties within New York and that’s all. Is an immediate family member who resides in New York one of the parties to whom you can transfer your “assault weapon?” Let’s see.
One critical clause of paragraph H of says, “‘assault weapons’ may only be sold to, exchanged with or disposed of to a purchaser authorized to possess such weapons. . . .” We ask, who are such purchasers?
NYSAFE doesn’t provide us with an answer. But we can find the answer through diligent research of other New York laws.
The answer is found in a couple Sections of the Penal Law of the State of New York and in a couple of Sections of Municipal Code of the City of New York. We turn first to paragraph 9 of Section 265.00 of the New York State Penal Law for guidance. This Section of the Penal law describes the “dealer in firearms.” A “‘dealer in firearms’ means any person, firm, partnership, corporation or company who engages in the business of purchasing, selling, keeping for sale, loaning, leasing, or in any manner disposing of, any assault weapon, large capacity ammunition feeding device, pistol or revolver.” Now a “dealer in firearms” requires a special license to transact business in firearms in New York. But we need not go further into scrutinizing those, Statutory Sections or in scrutinizing comparable, Federal Law.
We know that the transferor of the “assault weapon” may lawfully transfer an “assault weapon” to a licensed “dealer in firearms.”
The expression “dealer in firearms” is also defined in Section 10-301 of the New York City Administrative Code.
Who else, within the confines of New York, can we transfer “assault weapons” to – apart from a “dealer in firearms” and apart from the State Superintendent of Police or his designee, for destruction of the weapon or for use of the weapon by the Superintendent’s personnel? We see we can transfer an assault weapon to a “gunsmith.”
We turn to paragraph 8 of Section 265.00 of the New York State Penal Law. This Section of the Penal law describes and defines the “gunsmith.” A “‘gunsmith’ means any person, firm, partnership, corporation or company who engages in the business of repairing, altering, assembling, manufacturing, cleaning, polishing, engraving or trueing, or who performs any mechanical operation on, any firearm, large capacity ammunition feeding device or machine-gun.”
The term ‘gunsmith’ is also defined in Section 10-301 of the New York City Administrative Code.
The definition of ‘gunsmith’ as defined in Section 10-301 of the New York City Administrative Code is similar to the definition of ‘gunsmith’ as defined in the New York State Penal Law.
Section 10-301 of the New York City Administrative Code says a ‘gunsmith’ is “Any person, firm, partnership, corporation, or company who engages in the business of repairing, altering, assembling, manufacturing, cleaning, polishing, engraving, or trueing, or who in the course of such business performs any mechanical operation on any rifle, shotgun, firearm, assault weapon or machine gun.”
Now, both a “gunsmith” and a “dealer in firearms” must be properly licensed to engage in those respective businesses. We turn once again to Section 400.00 of the New York Penal Code. Paragraph 1 of Section 400.00 of the New York Penal Code sets forth in critical part that, “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.” Paragraph 2 of Section 400.00 of the New York Penal Code sets forth in critical part that, “A license for ‘gunsmith’ or ‘dealer in firearms’ shall be issued to engage in such business.”
Of note, Section 400.00 of the New York Penal law that establishes the licensing requirements for the “gunsmith” and for the “dealer in firearms” also establishes the licensing requirements for mere possession of firearms by the average, law-abiding New York resident.
Now going back to our fact pattern, you, the transferor wish to transfer a rifle, designated as an “assault weapon” to your son, the transferee, who holds a valid pistol license and a valid rifle and shotgun permit. The problem is your son does not also hold a license as a “dealer in firearms” or a license as a “gunsmith.”
So, what does this mean? Answer: What this means is that you, the transferor cannot lawfully transfer the “assault weapon” to your son, the transferee.
But, suppose, you, the transferor make the transfer of the “assault weapon” to your son, the transferee, anyway. What then? Well, paragraph 10 of Section 265.10 of the Penal Law says in pertinent part: “Any person who disposes of any machinegun, assault weapon, large capacity ammunition feeding device or firearm silencer is guilty of a class D felony.”
That means you will be charged with a felony and, if convicted, you will not only have your own pistol license and long arm permit revoked, you will lose all your firearms. And you will never again be allowed to possess firearms lawfully in New York. And, with a felony conviction, you would most likely not be permitted to lawfully possess firearms in any other State as well.
So: do not ever make an unlawful transfer of firearms.
You must be ever mindful whom in New York you wish to transfer an “assault weapon” to even if that transfer is to a close family member.
Once again: if you proceed with an unlawful transfer of an “assault weapon,” you will lose more than your pistol license and long arm permit and you will lose more than your firearms. You will face a felony charge. And, if convicted, you will never again be able to possess firearms lawfully in New York. And you likely will be unable to lawfully possess firearms in any other jurisdiction.
And keep in mind too: there is a presumption that disposal of any firearm in New York is unlawful: unless that disposal is made to or by a gunsmith or a dealer licensed in firearms or is otherwise permitted – within very narrow limits. Paragraph 16 of Section 400 of the Penal Law makes this point abundantly clear. “No person shall, except as otherwise authorized pursuant to law, dispose of any firearm: unless he is licensed as a gunsmith or dealer in firearms.”
SO WHAT DO WE KNOW AT THIS POINT CONCERNING OUR FIRST FACT PATTERN?
We know the transferor can transfer only one of his firearms to his son: the transferor’s revolver handgun. And we know the transferor cannot transfer his rifle, designated an ‘assault weapon,’ to his son, the transferee. The transferor has only four lawful options: one, keeping the assault weapon; two, transferring the assault weapon to a licensed firearms dealer or licensed gunsmith; three, transferring the weapon to a person out of State; or four, surrendering the weapon to the Superintendent of State police or his designee, for destruction or for reassignment of the weapon to police personnel. And that’s it!
WHAT DO WE HAVE YET TO LEARN BEFORE WE CAN PROCEED WITH THE TRANSFER OF THE REVOLVER HANDGUN?
Well, we still do not know how to go about the actual transfer of the revolver handgun to the transferee: the immediate family member. State law does not help us. So where do we turn? Since both the transferor and transferee in this case study reside in New York City and since each has a valid pistol license and long arm permit that allows for possession of rifles and shotguns, we turn to New York City law for guidance. But why do we turn to New York City law at all. Answer: Section 2 of Article 9 of the State Constitution gives New York City certain enumerated powers. Section 2 of Article 9 of the State Constitution is the “home rule” Section. The Local Government of New York City has the legal authority to adopt and amend laws relating to the “. . . protection, conduct, order and safety . . . of persons or property therein.” The promulgation of firearms regulations fall within the scope of “protection, conduct, order and safety.” So, under Section 2 of Article 9 of the State Constitution the Local Government has the authority to adopt and amend laws related to the licensing and disposition of firearms so long as those laws are not inconsistent with State Statute.
SO, HOW DO WE PROCEED WITH THE TRANSFER OF THE REVOLVER HANDGUN?
We now turn to Section 5-26 of Title 38 of the Rules of the City of New York. This Section of the City Rules provides detailed procedures and guidance for transferring a handgun from one person to another. Now, since, in our fact pattern, the transferor, who holds a valid pistol license, does not wish to make a sale of his revolver handgun but simply wishes to give the handgun to his son, the transferee, who also holds a valid pistol license, the transferor must first comply with particular New York City Rules before proceeding with the transfer. The rules for this transaction are detailed. They are as follows: “If the licensee wants to transfer her/his handgun(s) to another New York State/New York City license s/he also possesses s/he shall make a written request to the Division Head, License Division. The request shall include the following information: (1) The licensee’s name, address and telephone number. (2) The license number; make, model, calibre, and serial number of the handgun the licensee wishes transferred; and the number of the license to which the licensee wants to transfer the handgun.” (3) The licensee shall enclose copies of both licenses front and back. (4) The licensee shall receive a written response. If the request is approved, the licensee shall have to appear at the License Division with both licenses to process the transaction.”
Note: nothing in the New York City Rules establishes a time frame for processing a “firearms transfer” request. Note also: The licensing official has virtually absolute discretion in approving or disapproving the transfer.
And keep this in mind: “Any person lawfully in possession of a handgun who disposes of the same without first notifying the License Division in writing shall be guilty of a Class A Misdemeanor” in accordance with the provisions of New York State Penal Law §265.10(7). And, pursuant to New York City Administrative Code §10-311(a), “it shall be unlawful for any person or business enterprise to dispose of any handgun which does not contain a safety locking device, defined as a design adaptation or attachable accessory that will prevent the use of the weapon by an unauthorized user. The following types of safety locking devices will be deemed to comply with this provision: a trigger lock, which prevents the pulling of the trigger without the use of a key; or a combination handle, which prevents the use of the weapon without the alignment of the combination tumblers; or a detachable or non-detachable locking device, composed primarily of steel or other metal of significant gauge to inhibit breaking, utilizing a metallic key or combination lock, rendering the weapon inoperable until the locking device is removed by an authorized person.” Note: “The license becomes invalid if the licensee sells the one and only handgun on her/his license. Should the licensee wish to sell it without canceling her/his license, s/he shall first follow the instructions to add a handgun.”
When all is said in done – after you have complied perfectly with the laws governing transfer of firearms – the transfer may still fail. For the police licensing official has virtually absolute discretion to allow the transfer or deny the transfer. So the transfer can fail even if you comply with the laws governing the transfer of firearms, exactly.
And, if you do not follow the transfer procedures to a “T,” you may lose your firearms license and rifle and shotgun permit. And, if you lose your license and permit, you will lose your firearms as well. And you will almost certainly face civil and, possibly, criminal sanctions too.
There is much more to discuss on the subject of transfers. We have barely scratched the surface. But let’s stop here. Given the length of this post and the amount of material, there is much to digest. We will pick up the discussion in my next post. In that Article we will look at the legal requirements for transferring a firearm to a police officer. And we will look at the procedures for transferring an “assault weapon” to a person who resides out of State. Lastly, we will look at bequests of firearms. Stay tuned.
Copyright © 2013 Roger J Katz (Towne Criour) All Rights Reserved.