THROUGH ENACTMENT OF THE REPRODUCTIVE HEALTH ACT OF 2019, NEW YORK NOW SANCTIONS MURDER

Americans will remember Andrew Cuomo, the 56^th Governor of New York, long after he leaves Office and longer still, once he has departed from this Earth. They will remember Andrew Cuomo, but not in a good way. They will remember him for ramming through the State Government in Albany, two policy measures, both of which are antithetical to the core values, beliefs, and traditions of Americans, and both of which are inconsistent with the core tenets of the Bill of Rights of the United States Constitution.Those two reprehensible New York policy measures go by the names: New York Safe Act and the Reproductive Health Act. Governor Cuomo has championed both these policies; and  with his political clout he has forced both measures through the State Legislature, in Albany. Cuomo signed the former Act into law on February 15, 2013. He signed the latter Act into law, on January 22, 2019.The descriptors employed for these two laws belie their purpose, as all awful laws invariably do. Cuomo tells New York’s residents that the salient purpose and goal of the NY Safe Act is to promote and enhance public safety. But Cuomo is lying. A perusal of the Act makes clear its true purpose and goal: disarming law-abiding members of the public, in order to defeat the right of the people to keep and bear arms under the Second Amendment of the Bill of Rights of the U.S. Constitution.The NY Safe Act operates through a multitude of arcane New York laws that place extraordinary restrictions on firearms’ ownership and possession. The drafters of the NY Safe Act peppered the myriad laws that comprise the Act, here and there, throughout the New York State Code. Even an attorney must spend considerable effort to locate them all in this behemoth compendium of laws that comprise the Consolidated laws of the State of New York. Once found, the meaning of many of these laws is difficult to discern and fathom as much of the verbiage is ambiguous and vague.Whether due to unintentional poor draftsmanship or from a deliberate attempt to obscure and confound, Andrew Cuomo and other antigun zealots do intend to frustrate the American citizen, and, so, dissuade the citizen from obtaining and maintaining firearms within the jurisdiction of New York.Governor Cuomo exclaims, disingenuously, that he is simply more desirous of promoting, enhancing, and securing public safety and less intent on defeating the citizen’s exercise of a fundamental, enumerated, unalienable right. Hardly true, but, one thing is true enough. The NY Safe Act only serves to make the public decidedly less, not more, safe, as law-abiding citizens who reside in New York become an easy target for armed predators who demonstrate regard neither for law nor for the sanctity of human life. Thus, one is left to draw the inescapable conclusion that the NY Safe Act has, ultimately, nothing tangible to do with promoting, securing, and enhancing public safety--which are mere mindless messaging--and has everything to do with undermining the ideals of individual responsibility, autonomy, and inviolability, all intrinsic to the Second Amendment.It should come as no surprise, then, that Andrew Cuomo would endorse a second measure—certainly a measure he undoubtedly had a hand in crafting and shaping like the first one—a measure that is as sweeping in conception and implementation and as abhorrent to the conscience as the earlier one is.This second measure is, on any estimation, is horrific, as it amounts to legally sanctioned murder. This policy measure has the decidedly false appellation of: “Reproductive Health Act of 2019.”Make no mistake, regardless of protestations to the contrary, it is the individual—in this case the most innocent among us, the unborn child—whom the Reproductive Health Act targets for death; for extinction. The Act has little if anything to do with the life and health of the mother and it has everything to do with State licensed execution of an innocent, defenseless child.Murder, after all, may, in a figurative sense apply to an assault on society at large, writ large, but murder is a literal, life-ending assault on the integrity, and inviolability and sanctity of the individual, as so defined with particularity in both Federal and State law.As with those who espouse the radical left-wing doctrines of Socialism and Communism, Cuomo is a ‘Collectivist.’ Collectivists concern themselves with society, in its entirety, not with the welfare and well-being of the individual in society. So, then, when Cuomo expresses concern for the health, well-being, safety, or welfare of the public, he uses the word, ‘public’ in the broadest sense, consistent with the precepts of Collectivism. He refers to the body politic in its entirety; not to the individuals who comprise it.The ethical system Cuomo and other Collectivists embrace is called Utilitarian Consequentialism. This is an ethical system unconcerned with and therefore devoid of any reference to a person’s intentions and motivations.Utilitarian Consequentialism derives ethical maxims essentially from the results or effects of one’s actions on society. An individual's motives and intentions for acting fall out of the equation entirely or almost entirely since motives and intentions are deemed essentially irrelevant. An action is deemed morally good or morally evil essentially from the standpoint of consequences only. A morally good act is one that maximizes utility for the collective, the hive. A morally evil act or a morally neutral act is one that does not maximize utility for the collective, the hive.The notion of ‘utility maximization’ is a nebulous concept. And, as a nebulous concept it is therefore, ultimately, an unsatisfactory one upon which to build an ethical system, for the concept of 'utility maximization,' means whatever the proponent of utilitarian consequentialism, says it means. It is therefore arbitrary and constantly subject to revision. It is ever subject to the whim and caprice of the rulers of society, as they utilize it to dictate morality for the populace. Morality for Collectivists, those people, who espouse Utilitarian Consequentialism, perceive morality as a relative notion, not exact, not definite and definitive, not concrete.Utilitarian Consequentialism, grounded as it is on the concept of ‘utility maximization,’ is a bankrupt ethical system, because, for the Utilitarian Consequentialist, good and evil, are relative to time, place and circumstance, and to the wiles of those who define the expression for everyone else.Utilitarian Consequentialism is a form of moral relativism, and moral relativism of any kind or form, is hardly something upon which to establish a system for distinguishing good conduct from bad conduct, as any act, however reprehensible, can be deemed morally permissible. In fact, it is this very moral relativism that allows for something like New York's obscene Reproductive Health Act to be enacted.Only a purported ethical system like Utilitarian Consequentialism could allow for something as horrific as New York’s “Reproductive Health Act” to exist. And, only those who espouse Collectivism and who therefore adhere to the seeming ethical system of Utilitarian Consequentialism--as does Andrew Cuomo--would be capable of devising and implementing a monstrosity such as the Reproductive Health Act. And, only a Collectivist, such as Andrew Cuomo, would perceive licensed murder, as ethically defensible, indeed, even righteous.But Cuomo isn't done. He goes further. He dares raise abortion to the level of a fundamental right. But abortion qua the murder of a child, does not appear anywhere in this Nation’s Bill of Rights, either expressly or tacitly, and understandably so. Fundamental rights are natural rights, endowed by God, the Creator, on Man. Fundamental rights are not to be perceived as relative to a particular time, place, or circumstance. Fundamental rights are not mere creatures of Man. They are immutable. The idea that God, the creator of human souls, would ever sanction abortion, amounts to the very crucifixion of sanity. But, of course, nowhere in utilitarian consequentialism is there any discussion of a Divine Creator anyway.Not surprisingly Collectivists would espouse an “ethical” system like utilitarian consequentialism for they are atheists. Since they dispense with the very notion of a Divine Creator, they exhibit no humility. And, we see the results of their lack of restraint through the public policy they espouse. They have no inhibition; no shame. They lack all restraint. They are governed by raw ambition, and they are ever ruled by a lust for power and self-aggrandizement. These are exemplified in the present Governor of New York, Andrew Cuomo.Now, Andrew Cuomo would probably vehemently disagree with the assertion he is an atheist, having been born and raised as a Catholic; and he has never  disavowed or, in any manner, severed his relationship to or ties with the Catholic Church--at least as far as we can ascertain. But, then, that fact only serves to make his association with an abortion policy, any abortion policy, but especially one he had a hand in crafting and forcing through the New York Legislature--and one as disturbing and confounding and distressing as the one he signed into law--particularly egregious and incongruous; deeply so, and much more so than if Cuomo were to proclaim himself an atheist.

PEOPLE WHO ESPOUSE COLLECTIVISM ARE A COLD, CALLOUS LOT

Not surprisingly, Collectivists espouse no concern for the health, welfare, and well-being of the individual but, profess only concern for an amorphous mass, a Chimera, which is to profess, then, really, no concern for anyone at all. And, indeed, they don't. Thus, they can tell you with cold, calculated certainty that the life of two individuals is worth more than the life of one individual even if those two individuals are serial killers, and the one individual is a simple, God-fearing, law-abiding American citizen. The argument would simply devolve into numbers: two is greater than one, so the life of two individuals is worth more than the life of one individual, and there is no need to consider the nature of those lives. Thus, the Collectivist argues for "gun control." Better, the Collectivist would say, for two killers to murder an innocent individual than for the innocent individual, in an act of simple, basic self-preservation--to kill the two would-be killers with a firearm, as society, in its entirety, will be the better for removal of firearms, according to the reasoning of the Collectivist. Thus, sacrifice of the one individual serves society, as a whole. But, why, really, ought a person to accept sanctity in numbers for the sake of mere numbers?If one cares less for the life of one individual simply because one life is one less than two, why emphasize the import of the lives of the many at all? It is in fact this very preoccupation with raw numbers, rather than with concern for the particular individual life in question that allows Collectivists to sanction abortion. Only a Collectivist can somehow rationalize that the public as a whole will benefit from an abortion policy at all only because there are, presumably, according to the logic of the Collectivist, many more individuals that comprise the body politic than are the number of innocent lives that will be lost--sacrificed--as a result of an abortion policy. In other words, many more women--Cuomo and other proponents of New York's Reproductive Health Act tell us--would personally benefit from disrupting a human life. They tell us that society is better served by killing the unborn child than would be served if the mother were required to carry the child to birth, as society as a whole, somehow, in the mind of the Collectivist is better served for having an abortion policy, notwithstanding the clear, irremediable, irreversible loss of an innocent child that having an abortion policy entails.It is this convoluted, shallow logic that permits New York, now, to permit human sacrifice--sacrifice of the most innocent among us. But this is not reason. It is Satanic sophistry.Thus, Andrew Cuomo, the Collectivist and Utilitarian Consequentialist, doesn’t express concern for the life, health, well-being and welfare of the innocent individual souls that might, if they had a chance at life, comprise part of the body politic. Cuomo, and other Collectivists only express ostensible concern, then, for the well-being and welfare of the Collective, of “the hive.” How it can it be any other way than this?It is very much in vein then that Governor Andrew Cuomo, the Collectivist, the Utilitarian Consequentialist, would help craft the text of, and avidly support enactment of, and sign into law such morally reprehensible schemes as the Reproductive Health Act and the New York Safe Act. Given the detrimental impact of these horrific measures on the life, health, safety, welfare, and well-being of each American citizen, Cuomo and others of his ilk strive to hide the dire impact of these schemes on the sanctity and inviolability of each American citizen, and suggest that they are something different from what they truly purport to be.Not unsurprisingly, the wording of New York’s Reproductive Health Act, as with the wording of the New York Safe Act, deliberately obscures and, in fact, belies its true purpose and effect. One sees the true import and purport of the Act only when one drills down into the language of it.Like the New York Safe Act, the Reproductive Health Act betrays the sanctity and inviolability of the life. It betrays the welfare and well-being of the American citizen. The New York Safe Act has nothing to do with promoting and enhancing safety. And the Reproductive Health Act has nothing to do with promoting health. It is a Death Act, not a Life and Health Act.  Most Americans do not share Andrew Cuomo’s beliefs and wish neither to adopt nor suffer his political, social, and bankrupt moral belief system; nor do they wish to adapt themselves to it. But they have no choice. Cuomo thrusts his beliefs and his bizarre belief system onto others anyway. Since Cuomo wields considerable power and influence in New York and shows no reluctance in exercising that power and outsize influence, those falling within the purview of his jurisdiction—namely the residents of the State of New York—are compelled to live in a reality, a hell-world, he has created for them. Few can object as Cuomo seeks to control public discourse; he seeks to control all thought, and action; and, with the avid assistance of the mainstream media, he has become very successful at it.The qualities of compassion, restraint, humility, and respect for the beliefs of other Americans simply don’t exist in Andrew Cuomo’s psychological makeup. Cuomo, like so many other Collectivists in the Democratic Party, both on the State and Federal level, demonstrates callous disregard for the feelings and beliefs of others. Forcing his peculiar belief system onto millions of others, he does so with the conviction and certitude of a fanatic and sociopath, seemingly convinced of the infallibility of and superiority of his beliefs; oblivious to and, indeed, disdainful of the thoughts and feelings and beliefs of others.As a private citizen, Cuomo may, of course, hold to and cultivate any belief or belief system he wishes. That’s his right as an American citizen as guaranteed in the First Amendment to the U.S. Constitution. That harms no one. But, as Governor, Cuomo can and does ordain his belief system for others, that harms everyone and cannot and ought not be countenanced, and ought to be roundly and soundly condemned and fought against.Through enactment of the NY Safe Act, Cuomo at once denied and denigrated a fundamental, natural, unalienable right—a right that is clearly, concisely, and categorically articulated in the Second Amendment to the U.S. Constitution. He did this because he utterly detests the Second Amendment, and he finds the right of the people to keep and bear arms to be repugnant to his own peculiar sensibilities. He thereupon rams through the State Legislature, surreptitiously, without debate, in the dark of night, an extraordinarily restrictive firearms' measure that operates as if the Second Amendment did not exist.Similarly, through enactment of the Reproductive Health Act, Andrew Cuomo operates as if the unborn child is a non-entity and, so, may be summarily and unceremoniously erased.

GOVERNOR CUOMO CATEGORICALLY IGNORES THE FACT THAT CITIZENS OF THE UNITED STATES HAVE A FUNDAMENTAL RIGHT TO KEEP AND BEAR ARMS, REFUSING TO ACCEPT THE EXPRESS WORDS OF THE SECOND AMENDMENT OF THE BILL OF RIGHTS; YET, AMAZINGLY AND BIZARRELY HE PROPOSES TO CREATE OUT OF WHOLE CLOTH A FUNDAMENTAL RIGHT TO MURDER AN UNBORN CHILD, WHICH HE SEES AS A RIGHT INHERENT, APPARENTLY, IN A GENERAL, NOTION OF PRIVACY; BUT NO WHERE IN THE CONSTITUTION DOES SUCH A GENERAL RIGHT TO PRIVACY EXIST.

Let us take a look at what the Reproductive Health Act, 2019 N.Y. SB 240, Chaptered, January 22, 2019, 2019 N.Y. ALS 1; 2019 N.Y. Laws 1; 2019 N.Y. Ch. 1; 2019 N.Y. SB 240, actually says. Section 1, of the Act, titled, “Legislative Intent,” sets forth:“The legislature finds that comprehensive reproductive health care, including contraception and abortion, is a fundamental component of a woman’s health, privacy and equality. The New York Constitution and United States Constitution protect a woman’s fundamental right to access safe, legal abortion, courts have repeatedly reaffirmed this right and further emphasized that states may not place undue burdens on women seeking to access such right.Moreover, the legislature finds, as with other medical procedures, the safety of abortion is furthered by evidence-based practices developed and supported by medical professionals. Abortion is one of the safest medical procedures performed in the United States; the goal of medical regulation should be to improve the quality and availability of health care services.Furthermore, the legislature declares that it is the public policy of New York State that every individual possesses a fundamental right of privacy and equality with respect to their personal reproductive decisions and should be able to safely effectuate those decisions, including by seeking and obtaining abortion care, free from discrimination in the provision of health care.Therefore, it is the intent of the legislature to prevent the enforcement of laws or regulations that are not in furtherance of a legitimate state interest in protecting a woman’s health that burden abortion access.”As made abundantly clear, through this Section of the Act, titled, “Legislative Intent,” Andrew Cuomo dares attempt to raise to the level of a fundamental right, something that is nowhere explicit or implied in the Bill of Rights, or, for that matter, anywhere else, in the U.S. Constitution. Yet, those members of the New York Legislature who enacted New York’s Reproductive Health Act, and Governor Andrew Cuomo, who then signed the Reproductive Health Act into law, have the audacity to raise the killing of an unborn child to the level of a fundamental Constitutional Right. In creating such monstrous policy, these people dare deny to the unborn child, the sanctity and autonomy, to which that living soul, as any other living soul, is rightfully entitled: the right to exist as a living being, created by the Lord.But contrary to the wording of New York’s Reproductive Health Act, no person has a fundamental right to an abortion. The Constitution of the United States does not sanction abortion, under any set of circumstances. Yet, now, with the enactment of the Reproductive Health Act, the State of York has taken the rash, unprecedented step of literally sanctioning legal murder--an oxymoron, to be sure--but there is no better way to refer to it for that is what it is. Under law, legal murder is not murder at all. But, a purposeful act of snuffing out the life of an innocent soul has occurred nonetheless. And, as if that were not enough, in having enacted such a law, the Legislature of New York and the Governor of New York now audaciously raise a certain instance of murder to the level of a fundamental right, as the preamble to the Act, makes plain. The Governor of New York and those members of the State Legislature who had a hand in drafting the Reproductive Health Act or who otherwise voted for the Act's enactment, categorically declare that abortion is a fundamental right under both the State Constitution and under the U.S. Constitution. A certain kind of act that heretofore did constitute a criminal act, no longer does constitute a criminal act in New York.How does Cuomo and other proponents of the Reproductive Health Act, literally get away with murder? They do this by denying personhood to a living soul. And, how do they do that? They do that by declaring, in principal part, that the mother’s right to privacy, outweighs the life of the unborn child. But, where in the Constitution does this presumptive right of privacy of the  the mother reside? Cuomo doesn't say. But, assuming arguendo, it does reside and must reside somewhere, implied, and tacit, in the Constitution, where in the Constitution does this presumptive right of privacy happen, then, to reside? Where in the U.S. Constitution does such presumed fundamental right preside over that of the very life and well-being of the unborn child? The answer is: nowhere!If a vague, generalized right to privacy exists at all, it is nowhere to be found in nor can it be extracted from any one of the Articles of the United States Constitution; and it is not to be found in the Fourth Amendment of the Bill of Rights of the U.S. Constitution or in any other Amendment of the Bill of Rights; nor is it to be extracted from the text of any one of the subsequent Amendments to the U.S. Constitution.To be sure, the Fourth Amendment to the U.S. Constitution does indeed codify the fundamental right of the individual to be free from unreasonable searches and seizures. But, only through a feat of legerdemain can one claim that a general right of privacy exists within the definitive, explicit right of the citizen to be free from unreasonable searches and seizures. The concept of “unreasonable searches and seizures” is precise and explicit. The concept of ‘privacy,’ on the other hand, is abstract and vague.

SUPPOSE, FOR SAKE OF ARGUMENT, A FUNDAMENTAL, SUBSTANTIVE, GENERAL RIGHT OF PRIVACY DOES FEASIBLY EXIST IN THE U.S. CONSTITUTION, CAN THAT EVER JUSTIFY ABORTION?

Certainly, no rational argument can be made that a right to deny life to an unborn child is somehow subordinated to a general notion of privacy, even if such general right of privacy can be extracted somewhere from the text of the U.S. Constitution. Some people may argue that a general implicit right of privacy exists in or is subsumed in the explicit unreasonable searches and seizures clause of the Fourth Amendment. Even so, such general right of privacy cannot rationally justify abortion. The framers of the Constitution could not have intended that. Obviously, they have not. Only a fevered mind would believe otherwise. Cuomo is one such fevered mind that does. But, if a general, fundamental right of privacy does exist, and, if not in the Fourth Amendment to the U.S. Constitution, then where else might such substantive fundamental right be found upon which abortion might reasonably be Constitutionally sanctioned?Some may argue, that, if a general right of privacy cannot be found tacit in the fundamental, unalienable, enumerated right to be free from unreasonable searches and seizures clause of the Fourth Amendment, then, perhaps, a general right to privacy exists as one of the unenumerated rights of the Ninth Amendment to the U.S. Constitution.But, once again, no one can reasonably, rationally, logically construe the idea that an assault on the life of an unborn child is always Constitutionally permissible through the notion of a fundamental but unenumerated general right of privacy. Yet, advocates for abortion would argue that a general right of privacy--whether perceived, somehow as a substantive and fundamental but unenumerated right in the Ninth Amendment or as tacitly existent in the unreasonable searches and seizures clause of the Fourth Amendment, or, perhaps, as residing in the due process clause or equal protection clause of the Fifth or Fourteenth Amendments, or in the text of any other part of the Constitution--serves, legally, to override concern for the life and well-being of the unborn child. In other words, if State sanctioned murder is to be lawfully permitted, then it must be Constitutionally protected, but one must twist and contort the Constitution to find a way to justify what is, on its face, a horrific act. And, however one attempts to do so, the attempt invariably fails.

ABORTION RIGHTS ADVOCATES AND ACTIVISTS MUST FACE THE FACT THAT ABORTION, WHETHER EARLY TERM OR LATE TERM OR AT THE MOMENT OF BIRTH, ALWAYS INVOLVES THE KILLING OF A LIVING, ABSOLUTELY DEFENSELESS AND INNOCENT CHILD.

Although there have been attempts to insert privacy into the discussion of abortion, one cannot do so without dismissing out-of-hand the fact that abortion logically entails the killing of an unborn, child. Even if one assumes,  as Cuomo does, the existence of a general and fundamental right of privacy, albeit without proof, it is of dubious value to argue that such general privacy concern is superior to the life and well-being of an unborn child, and that such right of privacy is to be secured to the detriment of the unborn child. But, Cuomo's Reproductive Health Act has, by contriving a general fundamental right of privacy, placed that contrived general right of privacy over the very real life and well-being of the child. The Reproductive Health Act operates from just such an implausible assumption.But, do we allow Cuomo and other proponents of the Reproductive Health Act to get away with murder? Do we allow State-sanctioned murder simply because the proponents of abortion perfunctorily couch the act of abortion in something palatable, namely in the language of a fundamental right of health, privacy, or equality, despite the absence of a clear legal and moral foundation for it? They should not be let so easily off the hook.For those who assert with conviction a woman’s unalienable right to an abortion, inherent in a fundamental, but unproved general right of privacy, they must contend with the necessary consequence of it: the death of the unborn child, which, for these abortion rights advocates and activists, even includes a right to abortion even up to commencement of birth of a living human being. These people, though, do not wish to admit that fact, overtly, even if, among themselves they are perfectly content with it. So they tend to skip over it, rather than contend openly with it. If pressed, however, these advocates of abortion will simply assert that the unborn child, including the child about to be born, and even the child in the midst of live birth, isn’t a person.Those advocating for abortion simply view the unborn child as a nonentity. They deny to a living soul, the sacred, inviolate idea of 'personhood.' Advocates of abortion thereupon deny, to the unborn child and to the child about to be born and even to the child in the midst of live birth, the most sacred right of all—that of life itself. The moral dubiousness of and indeed the outright absurdity of their position is, thus, laid bare.For those State Officials, who, like Cuomo, claim, through it all, a concern for human life—there is a curious and odd “consanguinity” in both the recent abortion Statute and in the New York Safe Act. Both Acts proceed from the false assumption that what Government deems best for society, perceived in its entirety, must take precedence over the welfare of the individuals who comprise that society.Ostensible concern for public safety is the pretext for the New York Safe Act of 2013. But, as with all restrictive firearms’ measures, the NY Safe Act shows, in the language of it, and in its operation, a complete lack of concern for the health, safety, and well-being of the citizen. Thus, the proponents of restrictive gun laws, such as the NY Safe Act, claim to maximize benefit for society, but that presumed benefit to society comes at substantial cost: a concomitant loss of benefit accruing to the individual.Similarly, the Reproductive Health Act of 2019 claims to extol the virtue of health, privacy, and equal protection to society, comprising a class of women who seek abortion; but, in so doing, the proponents of the Reproductive Health Act demonstrate a clear and callous lack of concern for the health, safety, and well-being of the most innocent of living beings. As with the NY Safe Act, the proponents of the Reproductive Health Act claim the Act benefits society as a whole, but that presumed benefit to society comes at a most severe cost: the concomitant loss of decidedly the most critical need of all—life itself—for it is innocent individuals who suffer the dire and immediate consequence of abortion as their life is snuffed out.

NEW YORK’S REPRODUCTIVE HEALTH ACT SANCTIONS MURDER, PLAINLY AND INCONTROVERTIBLY

Under any objective appraisal, New York’s Reproductive Health Act is an abomination. It sanctions as permissible conduct, acts of unimaginable savagery that other States codify in their own laws as impermissible, reprehensible, heinous criminal conduct: namely, murder.How does New York’s Reproductive Health Act do this? The Act sanctions murder by submerging the act of abortion into the context of a presumed fundamental general right of privacy. But, that isn't enough. The problem is that, under the laws of New York, abortion is a crime. So, the Reproductive Health Act must change those provisions of New York law that make abortion a crime. The Reproductive Health Act amends New York law by adding to and deleting various provisions of New York public health law, penal law, the criminal procedure law, and other State laws regarding abortion.A new Section of the Public Health Law of New York, Section 2599-bb reads:A health care practitioner licensed, certified, or authorized under title eight of the education law, acting within his or her lawful scope of practice, may perform an abortion, when according to the practitioner’s reasonable and good faith professional judgment based on the facts of the patient’s case: the patient is within twenty-four weeks from the commencement of pregnancy, or there is an absence of fetal viability, or the abortion is necessary to protect the patient’s life or health.Those who defend the Reproductive Health Act argue that the law, as written, only prohibits abortion on demand up to the third trimester, and at no time thereafter, unless “there is an absence of fetal viability, or the abortion is necessary to protect the patient’s life or health.” But is that true? A few points must be made to counter this unsound conclusion.First, by emphasizing prohibition of at will abortion until the third trimester, we must not lose sight of the fact that the New York's Reproductive Health Act does allow at will abortion during the first two trimesters, regardless of the viability of a child. Abortions' rights advocates like to skirt over that fact. But, the fact remains that a living soul exists in the womb.Those favoring abortion point to the idea that the unborn child is not viable outside the womb before 20 weeks. So what! whether true or not that misses the point of the horror of abortion at all. It is simply a straw man argument in favor of abortion. If a child is healthy at any point during pregnancy, then the idea of viability inside or outside the womb should not be considered a rational factor in determining the legitimacy of abortion, whether one talks about viability of the child during the first, second, or third trimester. The question is whether abortion can be ethically justified at any point during pregnancy.Second, the New York Reproductive Health Act, as enacted, doesn’t limit the act of aborting a child to the services of a medical doctor. Virtually any individual who is licensed in New York, and “acting within his or her lawful scope of practice” may now lawfully perform an abortion in New York. The law broadly expands those who may perform an abortion well beyond that of a medically trained and licensed physician certified in the field of obstetrics or gynecology. That should give everyone pause.Third, when analyzing New York's Reproductive Health Act, one should pay attention to how the Act changes New York’s Penal Code. The Penal Code has been extensively rewritten to cohere with the precepts of the Act.Every Section of the Penal Code that refers to Abortion as a crime has been either deleted or repealed. Since abortion is no longer a crime, no one can, any longer, be charged with the crime for performing an abortion. Thus, even if one chooses to read Section 2599-bb very narrowly so as to conclude that the Act proscribes abortions at the point of the third trimester, as Cuomo and those who advocate for his abortion Act do so claim--apparently to assuage those who oppose the Reproductive Health Act--the claim is actually false.Still, despite the apparent language of the Act, and contrary to the remarks of those who justify the Act, claiming built-in limitations on abortion, the fact remains that with Cuomo's imprimatur, ab0rtion on demand is now perfectly legal in New York, not simply up to the third trimester, but at any time. That signals a legal right to abortion on demand through the third trimester, and, in fact, up to and including the very point of birth of the child. But, is that true? Yes, it is. The statement is true because abortion qua the killing of a child at any point in time, from conception up to the point of delivery and even beyond, is no longer a crime in New York. The very word, 'abortion' has been stricken from the Consolidated Laws of New York.

CRIMINAL LIABILITY FOR ABORTION NO LONGER ATTACHES IN NEW YORK

Since criminal liability for abortion no longer exists in New York, no one can be held criminally liable for performing an abortion. What does that mean? It means that, in effect, anyone—literally anyone—can perform an abortion, contrary to the dictates of Section 2599-bb; and, further, it means that abortions can be lawfully performed up to and including the point where the mother is giving birth to a viable, perfectly formed, and healthy child.Where there is no penalty for committing a crime, there does not, in effect, exist a crime, regardless of what a criminal code sets forth. Any words to the contrary are nugatory, and, so, in effect, meaningless.  Abortion is no longer a crime in New York.If there is any doubt about this, consider that New York’s County Coroners are now absolutely prohibited under the Reproductive Health Act from investigating abortion as a crime, in New York.“Section 11. Subdivision 1 of section of 673 of the county law, as added by chapter 545 of the laws of 1965, is amended to read as follows:A coroner or medical examiner has jurisdiction and authority to investigate the death of every person dying within his county, or whose body is found within the county, which is or appears to be:

• A violent death, whether by criminal violence, suicide or casualty;
• death caused by unlawful act or criminal neglect;
• death occurring in a suspicious, unusual or unexplained manner;

(d) A death caused by suspected criminal abortion;(e) A death while unattended by a physician, so far as can be discovered, or where no physician able to certify the cause of death as provided in the public health law and in form as prescribed by the commissioner of health can be found.”Sections (d) and (e) have been excised from New York law. And, New York's Legislators, who crafted the Reproductive Health Act, did so for an important reason. They took this rash step to make clear that the very act of abortion is lawful, even moral, because it is consistent, in the mind of the Collectivist and Utilitarian Consequentialist, as a fundamental right.What does this Section of New York law mean? It means that abortion—any abortion of a child—is perfectly legal in New York. It can be performed by anyone, and at any time. For, where there is no liability for criminal conduct, there is, once again, in effect, if not in fact, no crime. Abortion has literally been written out of the criminal code of New York. It has been indelibly stricken.What is the bottom line here? Just this: In the absence of liability, one can reasonably conclude that: Under New York’s Reproductive Health Act, abortion in New York is now permissible at any time, for any reason, performed by anyone. And, it gets even worse, when one considers various scenarios that play out.Consider one scenario: Suppose a woman, pregnant with child, has every intention of having a baby and that woman is assaulted by a criminal and, as a result of criminal assault, the mother loses the baby. While the attacker can can still be held criminally liable for harm to the mother, the attacker cannot now, unlike in the past, be held criminally liable for the death of the unborn child. The attacker cannot any longer be held liable for murder, for manslaughter, for criminal negligence—for anything related to the death of the unborn child.Where a perpetrator violently attacks a pregnant woman, in New York, we can extrapolate from that a peculiar "benefit" that accrues to the perpetrator of the violent attack: The loss of the child, as a result of an attack on the mother, may be construed as an unintended abortion. But, since abortion, whether intended or not, is no longer a crime in New York, the loss of the child from abortion can no longer be deemed a crime. Thus, the Reproductive Health Act provides substantial benefit to a class of society in New York beyond the amorphous class of women who may seek to have an abortion--the criminal element now benefits directly from the fact that abortion, under any set of circumstances is no longer deemed a crime in New York.Cuomo himself makes the point by proclaiming that the mother cannot be held responsible for the loss of the child. It is an inane and singularly odd remark, but, apart from that, it misses the critical point. The question is not whether the mother can be held criminally liable for the loss of her child. Obviously, she cannot and ought not in this instance, for she is not responsible for the loss of her child. Rather, the issue is whether the perpetrator of the violence on the mother can be held criminally liable for the harm done to the unborn child—i.e., whether the person who harms the mother, the perpetrator of the attack on the mother, can be held, as well, criminally liable for the death of the child. The perpetrator of the attack cannot be charged with any crime related to the death of the unborn child, under New York’s new Reproductive Health Act.Obviously, Cuomo doesn't want to address the fact that, with passage of the Reproductive Health Act, a person cannot be indicted for any crime--not for murder, not for manslaughter, not even for criminal negligence--where, but for a perpetrator's criminal assault on a pregnant woman, the woman would not have lost her unborn child. The perpetrator of the attack on the mother can only be criminally charged for harm done to the mother that is directly attributable to the perpetrator of the attack. Under New York law, the unborn child is not recognized as a living soul. The unborn child simply doesn't exist. Since abortion is now ruled out as a homicide in New York in every instance, the child, as such, does not in law exist. One cannot be charged for a crime perpetrated on a non-entity. It is as if the mother were not pregnant at all. It simply no longer matters under New York law. It is not, then, merely that an unborn child is perceived as not worthy of life. Once, again, and it needs to be stressed: New York's Reproductive Health Act operates as if the unborn child doesn’t exist; that the unborn child never existed. The child is not perceived as a person, but merely as an unwanted thing to be discarded.This is the new reality, the hellish cauldron of insanity and horror that Governor Andrew Cuomo’s Reproductive Health Act has thrown all New York residents into and which, like the reprehensible New York Safe Act, he would unleash on the entire Country if he were but given the chance.______________________________________________________Copyright © 2018 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

CUOMO VERSUS NRA: NEW YORK GOVERNOR ATTACKS NRA AND SILENT MAJORITY IN BID FOR THIRD TERM AS GOVERNOR OF NEW YORK.

“ ‘It is of the utmost consequence that the people should discuss the character and qualifications of candidates for their suffrages.  The importance to the state and to society of such discussions is so vast, and the advantages derived are so great, that they more than counterbalance the inconvenience of private persons whose conduct may be involved, and occasional injury to the reputations of individuals must yield to the public welfare, although at times such injury may be great.  The  public benefit from publicity is so great, and the chance of injury to private character so small, that such discussion must be privileged.’ ” New York Times Co. vs. Sullivan, 376 U.S. 254, 281; 84 S. Ct. 710, 727; 11 L. Ed. 2d  686, 707 (1964), citing, Coleman v. MacLennan, 78 Kan. 711, 724; 98 P. 281, 286 (Kan. 1908)(Opinion by Judge Burch, Kansas State Supreme Court).{Parenthetical Note to Our Readers: The Arbalest Quarrel took the original version of this article off the site yesterday in order to do an extensive rewrite. We apologize for any puzzlement this may have caused.}

IS CUOMO USING HIS CAMPAIGN FOR A THIRD TERM AS GOVERNOR OF NEW YORK TO LAUNCH A BID FOR PRESIDENT OF THE UNITED STATES IN 2020?

Andrew M. Cuomo, the 56^th Governor of New York and present sitting Governor, seeks a third term in Office. But is Cuomo contemplating a run for the U.S. Presidency in 2020, as the Democratic Party nominee? To the casual observer, it certainly appears so, even as he leaves the option open when asked.  That would certainly be in keeping with Cuomo's character, for Andrew Cuomo is an ambitious man. It is “Andrew M. Cuomo, 46^th President of the United States,” that Cuomo  may very well see in the mirror when he looks at himself. But, if this is indeed Cuomo's desire--this ultimate prize--the Silent Majority*  cannot allow this to happen. The Silent Majority must not allow this to happen. The Silent Majority must stop Cuomo in his tracks, and that means stopping Andrew Cuomo's election to a third term as Governor of New York.  But to stop Cuomo, the Silent Majority must first understand Cuomo.

WHO IS ANDREW CUOMO, REALLY?

Andrew Cuomo is a self-complacent, ruthlessly ambitious, smugly self-assured man. He is the last of “The Three Amigos,” all three of whom, under cover of darkness, spawned and machinated to secure enactment of the oppressive and reprehensible New York Safe Act—legislation that undercuts, and in its very conception is designed to undercut, the import and purport of the Second Amendment to the U.S. Constitution. The New York Safe Act also negatively impacts the personal property clause of the Fifth Amendment to the U.S. Constitution, as language in the Act makes it impossible for one spouse to transfer his or her firearms to the other spouse as well as to other family members.But, what became of the two close allies of Cuomo—two of the “three Amigos” that we hear so little about today? One of the two Amigos, Sheldon Silver, former Speaker of the New York Assembly, resides in federal prison. The New York Post reports that a federal Court sentenced Silver to 7 years in prison, and  fined Silver $1.75 million dollars, having found Silver guilty of public corruption. In that article, the Post reports that the judge reduced an earlier sentence of 12 years imposed on Silver, apparently as an act of mercy, given Silver's advanced age.Ten days after Sheldon Silver, was sentenced, a U.S. District Court, as reported by the Daily News, sentenced Skelos, Speaker of the New York Assembly, to 5 years in prison, for bribery, extortion, and conspiracy, and ordered him to pay $500,000 in fines. Skelos presently remains free on bail, according to The New York Times, while the Court considers the former Speaker's conviction on the specific charge of graft.And what of the kingpin, himself, the third Amigo, Andrew M. Cuomo? The Governor of New York has since attempted to distance himself from his two former friends and allies. Cuomo seems to remain unscathed, while his underlings, Silver and Skelos, get hit with criminal indictments and convictions. But perceptions can be deceiving. Public corruption is systematic in, systemic of, and endemic to Cuomo’s Administration, and, in fact, to Andrew Cuomo, himself.

ANDREW CUOMO: A MAN OF THE PEOPLE? HARDLY!

Several years ago, when Cuomo first ran for Governor of New York, The New York Times wrote that Cuomo was a man of the people. But, fast forward several years to this present moment in time, it is clear that Cuomo is nothing of the sort. No doubt Cuomo would claim that, then, as now, he represents the best interests of New York residents, but, truthfully, Cuomo has done nothing to earn the trust, support and confidence of New York residents in the heartland of the State.In point of fact Cuomo is unaccountable to and dismissive of all concern for the Silent Majority of New York. By extension, Cuomo would be unaccountable to and would be dismissive of all concern for the Silent Majority of citizens of the entire Nation were he to win the Oval Office in 2020.Cuomo cannot wash the sins of public corruption away, much as he may try. Evidence of Cuomo's embrace of public corruption is legion. The New York Post's expose of Andrew Cuomo is telling. The New York Post writes, ". . . Gov. Cuomo’s political interference with his Moreland Commission panel’s investigation of public corruption pulled the veil from one of the biggest open secrets at the state Capitol: The governor is a liar and almost anything he promises will turn out to be false. Cuomo’s betrayal of major pledges is well known: the promise to cut taxes in a meaningful way, encourage job creation without government handouts, reduce local mandates, conduct public work transparently and have science — not politics — determine if fracking can be done safely.But it wasn’t until it Cuomo violated his No. 1 pledge to rid New York of the “culture of corruption’’ that has dominated Albany for decades that the full extent of his betrayal of the public became clear.People who have known Cuomo for years, including some who go back to the days he served as the thuggish chief enforcer of his father, then-Gov. Mario Cuomo, say they aren’t surprised Cuomo’s penchant for lying has finally exploded in full public view.Andrew Cuomo has surrounded himself with unsavory characters. His own disreputable character is longstanding and his ties to unsavory types deeply entrenched. A case in point: Joe Percoco, a former aide to Governor Cuomo who was sentenced for public corruption. The times union, pointing to charges brought against Percoco in a federal bribery and fraud case, in 2016—which, according to the NY Post, subsequently led to Percoco's conviction on several charges—said that:“Joe Percoco, ‘has long been a bruising political enforcer at times feared by those in the Capitol sphere.‘Trained as a lawyer, he had the guts, brains and stick-to-itiveness necessary to attack any project — hard,’ Gov. Andrew Cuomo called his longtime confidant and former aide in his 2014 memoir, ‘All Things Possible.’ Percoco [first] worked for Andrew Cuomo's father, Mario, during his time as governor, beginning political life at the age of 19, according to Cuomo's memoir. At Mario Cuomo's January 2015 funeral, Andrew Cuomo called Percoco ‘my father's third son, who sometimes I think he loved the most.” 

ANDREW CUOMO IS, DEFINED, FIRST AND FOREMOST, BY HIS OPPOSITION TO THE SECOND AMENDMENT OF THE U.S. CONSTITUTION, AND HE IS DEFINED, SECOND—WHETHER THROUGH PERSONAL CONVICTION OR SIMPLY THROUGH POLITICAL EXPEDIENCY—WITH THE PROGRESSIVE LEFT OF THIS COUNTRY, AS HE HAS, THROUGH BOTH HIS WORDS, AND ACTIONS, CAST THE FATE OF HIS POLITICAL FUTURE WITH THAT FAR LEFT-WING POLITICAL FACTION OF THE DEMOCRATIC PARTY.

Andrew Cuomo is known as the man who, more than anything else, detests the Second Amendment, and the NRA, and all those Americans, the silent majority who reside both in New York and in the heartland of this Nation. Nothing defines Cuomo more than his utter contempt for, and his virulent, vitriolic, and absolute hatred for the right of the people to keep and bear arms. His signature Legislation, the New York Safe Act, more than anything else, defines what he stands for and what his vision for America consists of. The NY Safe Act is a testament to his virulent, vitriolic, and absolute hatred of the Second Amendment of the Bill of Rights of the United States Constitution.Residents of other States may scoff at Cuomo, perceiving him to be little more than a political con artist who, for political reasons, has consciously, calculatedly cast his lot with the most liberal elements of the Democratic Party, who also detest the Second Amendment and who have, of late, insinuated themselves inextricably into the web of the Democratic Party machinery. Centrists within the Democratic Party seem powerless to constrain these insurgent progressive left elements, or otherwise lack the will to do so, and have capitulated to their aims and wishes.The Democratic Party is the mechanism through which these insurgent progressive elements intend to destroy this Nation; and the centrist liberal elements within the Party, headed by Nancy Pelosi and Chuck Schumer, have shown, through their clearly abject weakness, a willingness to join these progressive forces by either echoing the sentiments of their sentiments and aims or otherwise standing by placidly, ineffectively, unable or unwilling to control them.  Make no mistake about this. The Progressive Left in this Nation seeks to undermine this Nation’s sovereignty, and to undercut this Nation’s Constitution and Bill of Rights. Ever since Donald Trump’s inauguration, as the 45th President of the United States, the Progressive Left in this Country have been systematically working toward their destructive goals—although more openly than they had wished; for, with the election of Donald Trump as the 45th President of the United States, much to their surprise and consternation, they have been forced to show their hand.To accomplish their reprehensible goal, those who would destroy our Nation and who would destroy our Nation’s history, traditions, and core values have launched an all-out war—a war against the very foundation of our free Republic and of a free People: a war against the Second Amendment to the U.S. Constitution. It is destruction of the Second Amendment that exists, first and foremost, in their crosshairs. It is the destruction of the Second Amendment they want. It is destruction of the Second Amendment they need.  And it is the destruction of the Second Amendment they intend to bring off, to effectuate their ultimate goal: subordination of the Country as an independent sovereign Nation State; subordination of the Nation's Constitution and the Nation's laws to international laws and international tribunals; and the erasing of our history, traditions, and values, and the subversion of the very concept of  'citizen,' paving the way for the infusion of tens of millions of unassimilable illegal aliens into the heart of our Country. To accomplish their despicable end game, Andrew Cuomo is their man.The destroyers of this Nation, no less so than the silent majority, know that the Second Amendment to the U.S. Constitution is the very backbone of this Nation. Were the Second Amendment eliminated, the entirety of the Nation’s Bill of Rights, along with the autonomy and sanctity of the American citizen, and, too, the very structure of this Nation’s Government, as laid out in the Articles, as set forth in the Constitution, would topple like a house of cards. The socialists, communists, anarchists, and those that finance their operations in this Country are working tirelessly, unceasingly to see that this happens. The silent majority in this Country, for their part, must see to it that this doesn’t happen.

ANDREW CUOMO ATTACKS THE NRA

Lest there by any doubt, the National Rifle Association (NRA)—as the preeminent defender of the Nation’s singularly critical core, defining precept, the right of the people to keep and bear arms, and as preeminent defender of the very bedrock of a free Republic—is the first civil rights organization. It was founded in 1871 ((incidentally, nine years before the founding of the National Association for the deaf (NAD), in 1880, and almost forty years before the founding of the NAACP, in 1909)). Left-wing progressives, becoming increasingly emboldened and radicalized, and with the backing of the mainstream media, have the audacity to call NRA a terrorist organization. Left-wing progressives seem oblivious to the fact that NRA is the first and certainly the most important civil rights organization in this Country. By calling NRA a terrorist organization, left-wing progressives are implicitly, ludicrously calling millions of NRA members, terrorists, too. And, by calling the NRA a terrorist organization, these left-wing progressives explicitly denigrate the Second Amendment to the U.S. Constitution, impugning Americans who choose to exercise their natural right to keep and bear arms as codified in the Second Amendment, and making a mockery of the Nation's Bill of Rights, of which the Second Amendment is a salient, critical part.The mainstream media does not so much as try to restrain the inane pronouncements of and the dangerous actions of these left-wing progressives elements in society but ignores—indeed, even repudiates—the sacred duty owed to all Americans, under the First Amendment to the U.S. Constitution, namely, to defend the rights and liberties set forth in the Bill of Rights—all ten of them—by seriously investigating and calling out the Un-American activities it observes through the words and actions of these left-wing progressive elements. The mainstream media unconscionably echoes the sentiments of this faction, thereby assisting in and hastening the breakdown of the institutions comprising our society; the destruction of our Constitution and its system of laws; the collapse of our Country as an independent, sovereign Nation State; the extinction of our traditions, our history, our core values and our code of ethics; and the defilement of our citizenry.Of course, the silent majority of this Country can readily dismiss the vitriol and antics of these left-wing progressives who attack NRA, who attack supporters of NRA, and who seek de facto repeal of the Second Amendment. These left-wing progressives in our society have no credibility. For, the Silent Majority knows what they aim to do. They seek nothing less than to destroy the sovereignty of the United States and to subordinate our Constitution and laws to those of foreign bodies.It is one thing for individuals and for the Press to attack our Constitution, repugnant to the conscience as that is. It is quite another thing when politicians, themselves, denigrate the Second Amendment and attack NRA. For politicians—the representatives of the people—were elected to represent the citizenry. They have taken an oath to preserve, protect, and defend the Constitution of the United States, which includes the preservation, protection, and defense of the Second Amendment, as a critical, and, arguably, most critical component of the U.S. Constitution.When these politicians—these representatives of the people, themselves—voice opposition to the sanctity of the right of the people to keep and bear arms and to the premier Civil Rights Organization, NRA, that exists for the sole purpose of defending that right, then, they have betrayed their oath of Office; they have betrayed the Constitution they swore to protect, preserve, and defend; and they have betrayed the American people, the Nation's citizenry, they claim to represent. At that point, the American people, the silent majority of this Nation, can no longer remain silent; must no longer remain silent. The silent majority has the duty to call these disrupters out for the evil they do.

NRA FILES LAWSUIT AGAINST ANDREW CUOMO

On May 11, 2018 NRA filed a lawsuit against the Governor of New York, Andrew Cuomo and the New York State Department of Financial Services (DFS).** In the lawsuit, NRA sets forth: “This case is necessitated by an overt viewpoint-based discrimination campaign against the NRA and the millions of law-abiding gun owners that it represents. Directed by Governor Andrew Cuomo, this campaign involves selective prosecution, backroom exhortations, and public threats with a singular goal – to deprive the NRA and its constituents of their First Amendment right to speak freely about gun-related issues and defend the Second Amendment. The foundation of Defendants’ selective-enforcement and retaliation campaign is a series of threats to financial institutions that DFS, an agency created to ensure the integrity of financial markets after the 2008 credit crisis, will exercise its extensive regulatory power against entities that fail to sever ties with the NRA.”Last month, NRA filed its Amended Complaint. Cuomo immediately fired back with a motion to dismiss the Amended Complaint, arguing that NRA’s lawsuit is “frivolous.” But, the appellation, ‘frivolous,’ is more aptly applied to Cuomo’s lack of regard for and respect for the Second Amendment. For, in his outrageous attack on NRA, incongruously using the mechanism of a boycott—a singularly bizarre and illegal maneuver by a Governmental entity to utilize—Andrew Cuomo has made clear that, as Governor, he intends to destroy the efficacy of the Second Amendment in New York. This should give all Americans pause. For, as President of the United States, Andrew Cuomo would do much, much more damage to the Second Amendment. He would work toward excising the Second Amendment from the Constitution of the United States, altogether. 

ANDREW CUOMO MUST BE STOPPED!

Cuomo’s malevolent ill will toward NRA is clear. Indeed, he has had the affront to call NRA--as the first and premier Civil Rights organization, defender of a sacred component of our Bill of Rights--an “extremist organization.” And, in a mocking tone,  as reported by the Daily News, denigrating NRA, and by implication, mocking the organization's members, millions of Americans, the silent majority of our Country, and mocking our Nation's sacred  Bill of Rights, Cuomo retorts: “If the NRA goes away, I’ll remember the NRA in my thoughts and prayers.”In making these insulting statements, Andrew Cuomo can no longer be considered a respectable leader of New York, much less of this Nation, in the event he decides to make a run for the Office of U.S. President in 2020. Cuomo has shown an utter lack of restraint and demonstrates a marked deficiency in character. He does not identify with and, obviously, he has no desire to identify with the vast number of Americans, the silent majority, both in New York and in the Nation as a whole, that reveres the great document, the Bill of Rights of the U.S. Constitution that our founders lovingly gave us and spilt their blood for, on our behalf. Cuomo identifies himself with a small, albeit vociferous, faction of society, left-wing progressives, who do not represent the vast majority of the American citizenry, who do not represent, we the silent majority. Cuomo has through both his words and deeds made himself into an outlier, even an outcast, who, has cast his lot with a small virulently Anti-American segment of the population, left-wing progressives. Cuomo is not the defender of our Nation's liberty and security that he pretends to be. He is, as with the left-wing progressives he identifies most closely with, a disruptor and destroyer of our Nation's traditions, values and history. He is openly contemptuous of the salient right of the people of this Nation to keep and bear arms as etched in stone in our sacred Bill of Rights, and therefore disdainful of all those--the silent majority of this Nation--that support NRA and that support the Bill of Rights in its entirety.Cuomo says he merely seeks to make New York and the rest of the Nation "safe" and will work with other States to make his vision of America a reality as he cannot get Congress on board with is plan for America. Yet Cuomo's vision for New York and for the rest of the Nation serves not to defend the American people but seeks to undermine our Nation and to dismantle our Constitution. Cuomo resides well beyond the pale of decency and respectability and properly merits the condemnation of the American people.

IN CONCLUSION

Andrew Cuomo has given up all pretense of representing the interests of the people of New York, and he has made abundantly clear, both through his statements and actions, that he has no desire or inclination, whatsoever, of preserving, protecting, and defending the Constitution of the United States. He should not serve a third term as Governor of New York. That would do a disservice to the citizens who reside in New York. And, Cuomo definitely should not serve as President of the United States, if he harbors any secret inclination to do so. For, were he to do so, that would inevitably prove fatal to the Nation’s Bill of Rights; fatal to the continued existence of a free Republic; and fatal to the continued existence of our Country as an independent sovereign Nation State, neither subordinate to or subservient to nor beholding to any other nation, federation of nations, or transnational authority._____________________*The expression, ‘silent majority,’—referring to the vast majority of American citizens throughout the Country whose voice is drowned out by the cacophony of noise incessantly, unceasingly, and obnoxiously generated by the mainstream media and by a vocal minority of extremists around the Country and in the halls of Congress whom the mainstream media represents and with whom the mainstream media is closely identified—is, perhaps, most closely associated with and most likely popularized by President Richard Nixon, after a speech he gave to the Nation in 1969. But, significantly, it was President John F. Kennedy, not Nixon, who earlier coined the expression. The expression appears in President Kennedy’s Pulitzer Prize winning book, “Profiles in Courage,”where he wrote: “Some of them may have been representing the actual sentiments of the silent majority of their constituents in opposition to the screams of a vocal minority. . . .”  **See August 3, 2018 update to the NRA's lawsuit, as reported in the Daily News, and the August 5, 2018 update to the NRA's lawsuit, as reported in The New York Times. _________________________________________________Copyright © 2018 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.  

GUN LAWS THAT DO NOT MAKE SENSE, LITERALLY!

A Critical Look at California's New 'Assault Weapons' Bill and a Comparison and Contrast with New York's 'Assault Weapons' Laws

California is playing the child’s game of “leapfrog” with New York and with other States that enact draconian firearms laws. What do we mean by that? Just this: as one State Legislature drafts and enacts ever more draconian gun laws, the other States follow suit and attempt to do the first State, one better. Let’s see how this plays out.The New York State Legislature in Albany, NY, rewrote the law defining the expression ‘assault weapon.’ The Safe Act became effective on January 15, 2013 and was the de facto model for new antigun laws around the Country. The Safe Act was also the de facto model for Dianne Feinstein’s failed effort to enact a new federal assault weapons’ ban and ammunition ban in 2013. Fortunately, Republicans in Congress and the NRA stopped a federal “Safe Act” in its tracks.The Sandy Hook Elementary School shooting incident that occurred on December 14, 2012, in Newtown, Connecticut, was the impetus for – actually the pretext for – implementation of new and highly restrictive gun and ammunition bans.Notwithstanding oppressive gun restrictions in New York, the Safe Act further encroached on Americans' Second Amendment right to keep and bear arms, adding new restrictive provisions to the New York Penal Code and to other Statutory Sections of the Consolidated Laws of New York and making existing gun provisions even harsher.The drafters of the Safe Act aimed to ban ever more types of guns. To make guns bans palatable to the public, the drafters of the Safe Act continued, through the artifice of rhetoric to create the illusion that some firearms were evil. They called these firearms assault weapons.Once a firearm is defined as an ‘assault weapon,’ that firearm becomes, at the stroke of a pen, a “banned weapon.” Under present New York law, specifically, NY CLS Penal § 265.00(22)(A) and (C), firearms, namely, rifles and pistols that, one, are semiautomatic in operation, two, can accept a detachable magazine and – if the first two necessary conditions are met – then three, if those firearms have at least one of a specific set of features as set forth in NY CLS Penal § 265.00(22)(A) or (C). If all three conditions are met, then, under New York law, those rifles and pistols are, by virtue of a legal fiction, ‘assault weapons,’ and are, therefore, banned weapons.Under NY CLS Penal § 265.00(22)(B), Shotguns that are, one, semiautomatic in operation and, two, have at least one of a particular set of characteristics as set forth in NY CLS Penal § 265.00(22)(B) are also ‘assault weapons.’ And the New York Safe Act adds a fourth category of “assault weapons.” Under NY CLS Penal § 265.00(22)(D), Shotguns that utilize a revolving cylinder are, by definition, also ‘assault weapons’ and therefore banned weapons. We have discussed the legal fiction of 'assault weapons' as constructed by the drafters of the New York Safe Act, at length, in previous articles that appear on this site. See in particular: "Cuomo's NY Safe Act and the notion of 'assault weapon;'" "NY Safe: Looking at the 'assault weapon;'" and, "NY Safe: 'assault weapon' definitions.'"At the moment, typical handguns that utilize a revolving cylinder, and rifles that utilize a revolving cylinder – rare as revolving cylinder rifles  are – are not, under present New York law, defined as ‘assault weapons;’ but who can say what the future holds if antigun legislators, like New York Senator Jeffrey D. Klein, continue to control the politics of gun ownership and possession, and draft ever more onerous and heinous gun laws for law-abiding Americans who happen to reside in New York.Let us now compare the definitions for rifles that are also ‘assault weapons,’ as those definitions appear in both the California Penal Code and the New York Penal Code, because CA A.B. 1663, throws a wrench into the mix, specifically in respect to rifles.In the New York Penal Code rifles that are also assault weapons must, as we have said, be semiautomatic in operation and also be capable of accepting a detachable magazine. These are necessary conditions that must be fulfilled before a weapon can be considered an ‘assault weapon’ in New York. If and only if a rifle is semiautomatic in operation and is capable of accepting a detachable magazine, then NY CLS Penal § 265.00(22)(A), says that we look for additional characteristics that a rifle might have if it is to be deemed an ‘assault weapon’ under New York law. So, then, if the rifle has at least one additional characteristic, for example, a second handgrip, or a flash suppressor, or a folding or telescoping stock, or a bayonet mount, then the rifle is, under, NY CLS Penal § 265.00(22)(A), an assault weapon. Otherwise it isn’t.Cal Pen Code § 30515(a)(1), at the moment, reads much like NY CLS Penal § 265.00(22)(A). Cal Pen Code § 30515(a)(1) sets forth three requirements for rifles that are also assault weapons, two, of which, like New York, are necessary conditions that must be fulfilled: one, the rifle must be centerfire semiautomatic in operation, and two, the rifle must have the capacity to accept a detachable magazine. If those necessary conditions are met, then we look to see if the rifle has at least one of several listed features such as, inter alia, a pistol grip, a flash suppressor, a folding or telescoping stock, or thumbhole stock. If these three conditions are met, the firearm in question is an “assault weapon” and, therefore, a banned weapon under California law. Thus, we see that Cal Pen Code § 30515(a)(1), as it presently reads, mirrors NY CLS Penal § 265.00(22)(A) in every critical respect.Even before CA A.B. 1663 was drafted, California “did New York one better.” Under present California law, rifles that are also assault weapons include, under Cal Pen Code 30515(a)(2), “A semiautomatic, centerfire rifle that has a fixed magazine with the capacity to accept more than 10 rounds.” Recall, under New York law, rifles that are also assault weapons must be semiautomatic in operation and be capable of accepting a detachable magazine only. So, under present New York law, no rifle is an assault weapon that happens to have a non-detachable, i.e., fixed, magazine. A rifle might have a magazine that can hold 100 rounds of ammunition. If that magazine is fixed to the rifle, that is to say, if that magazine cannot be readily detached from the body of the rifle, the rifle is not an ‘assault weapon’ under present New York law.In California, on the other hand, under Cal Pen Code § 30515(a)(2), a rifle that has a fixed magazine that is capable of holding more than ten rounds of ammunition is an ‘assault weapon.’ So, in the California Penal Code, unlike the New York Penal Code, a semiautomatic rifle may, under the appropriate circumstances, based on definition, be deemed an assault weapon if the rifle utilizes either a detachable or fixed ammunition magazine.Now, what would CA A.B. 1663 do, if enacted? CA A.B. 1663 modifies Cal Pen Code § 30515(a)(1), which would be amended to read: a rifle is an assault weapon if that weapon is a “semiautomatic centerfire rifle that does not have a fixed magazine with the capacity to accept no more than 10 rounds.” Do you understand the meaning of that sentence? Read it again. In fact, read it several times, but don’t be upset if you continue to scratch your head in bewilderment as to the meaning of that sentence; for, the meaning of that sentence isn’t clear to us either.The California legislators, who drafted that sentence – making liberal use of negatives – apparently derive pleasure from torturing the English language as much as they enjoy torturing those California residents and U.S. citizens who choose to exercise their fundamental right to keep and bear arms. Cal Pen Code § 30515(a)(1), as drafted by the Legislature, is inherently ambiguous. That was obviously the intention of its drafters.Under one interpretation – a more conservative interpretation – a rifle is an assault weapon, in California, if it is a centerfire semiautomatic weapon that can accept a detachable magazine that is capable of holding more than ten rounds. However, under a liberal interpretation of the ambiguous sentence, a centerfire semiautomatic rifle is an assault weapon that can accept a detachable magazine, regardless of the number of rounds of ammunition the magazine might be capable of holding. An argument can be made for either interpretation and, if CA A.B. 1663 is enacted, and thereafter challenged, it will take a court of law to decide which interpretation is correct. You will note, too, something else about the definition of ‘assault weapon’ as promulgated in the revised Cal Pen Code § 30515(a)(1). In the revised Cal Pen Code § 30515(a)(1), there is something missing. In the original version of that statutory section, a centerfire semiautomatic rifle is not deemed to be an assault weapon, unless it have at least one of several enumerated characteristics. That requirement has been eliminated in the revision.Essentially, the new Cal Pen Code § 30515(a)(1) – if CA A.B. 1663 is enacted and codified into law – is the obverse of Cal Pen Code § 30515(a)(2), which reads that a rifle is an assault weapon if it is “A semiautomatic, centerfire rifle that has a fixed magazine with the capacity to accept more than 10 rounds.” But, the idea here is that, under a liberal interpretation of the ambiguous sentence – as the new Cal Pen Code § 30515(a)(1) reads – the number of rounds that a detachable magazine can hold is not decisive or even relevant to the issue whether a centerfire semiautomatic rifle is an assault weapon. So long as a rifle is capable of accepting a detachable  magazine – even if the magazine is capable of holding only one round – that will be sufficient to transform the rifle into an assault weapon, and, therefore, a banned weapon, in California.Let’s distill all of this. So, if CA A.B. 1663, becomes law a rifle is also an assault weapon, and therefore, a banned weapon in California under two scenarios:Under Cal Pen Code § 30515(a)(1), as amended by CA A.B. 1663, a rifle is an assault weapon if it is a centerfire, semiautomatic, and it is capable of accepting a detachable magazine, regardless of the number of rounds that the rifle’s detachable magazine may hold (under a liberal interpretation of the amended statute). And, under Cal Pen Code § 30515(a)(2) – the language which remains unchanged – a rifle is an assault weapon if it is a centerfire, semiautomatic and has a fixed magazine that is capable of holding more than ten rounds.In the continuing game of “leapfrog,” antigun forces in the New York Legislature may be, even now, drafting new legislation, redefining and refining the definition of ‘assault weapon’ to “improve upon” California’s 'assault weapons' fetish. If right of the American people to keep and bear arms, as embodied in the Second Amendment, is to survive in the 21^st Century, it is incumbent upon each American to defend that right against the forces intent on destroying it, just as the Second Amendment was, itself, meant to defend the sanctity of each individual law-abiding American. The Second Amendment protects us so long as we protect it. [separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

TRANSFERRING AMMUNITION IN NEW YORK: WHAT YOU NEED TO KNOW

White Paper Summary

The New York Safe Act is a minefield. One notoriously vague area pertains to transfers of ammunition. Only one section of the NY Safe Act deals with ammunition. The matter of transactions involving ammunition is found and dealt with in Section 50 of the New York Safe Act. Section 50 of the NY Safe Act is codified in the Penal Code of New York: NY CLS Penal § 400.03, titled, “Sellers of ammunition.” Moreover, Section 50 is the only section of the NY Safe Act that deals with transfers of ammunition.Section 50 says, in pertinent part, “No commercial transfer of ammunition shall take place unless a licensed dealer in firearms or registered seller of ammunition acts as an intermediary between the transferor and the ultimate transferee of the ammunition for the purposes of contacting the statewide license and record database pursuant to this section. Such transfer between the dealer or seller, and transferee must occur in person.” Section 50 talks about what both licensed dealers in firearms and sellers of ammunition must do in order to comply with the Act and, too, what individuals who are neither licensed dealers in firearms or registered sellers of firearms must do in order to comply with the NY Safe Act, when one of the parties wishes to sell a box of ammunition to another party. So, Section 50 is talking explicitly about sales of ammunition. And, that is fine as far as Section 50 goes. But, the Safe Act presents a problem.The problem is that not all transfers of ammunition between New York residents who lawfully own and possess firearms are typical purchase and sales of ammunition. Some transfers of ammunition from one individual to another individual are not sales at all. They are gifts or bequests of ammunition from one individual to another in a situation where neither individual is in the business of selling firearms or ammunition. So are those kinds of transactions lawful?Unfortunately, the New York Safe Act – which otherwise has much to say regarding the transfer of firearms defined as ‘assault weapons’ from one person to another person – is silent on ammunition transfers that do amount to sales. So, one must delve deeper into the Penal Code of New York in search of an answer, and we have done this for you.The laws of New York dealing with ammunition transfers – as with firearms matters, generally – are confusing and complex. In our “White Paper” we explain in detail the intricacies of ammunition transfers. We clarify the issues for you and do our best to provide you with meaningful answers that you can work with.View And Download The Full White Paper Here.

[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

TRANSFERRING AMMUNITION MAGAZINES IN NEW YORK: WHAT YOU NEED TO KNOW

PART 5: Transferring Ammunition Feeding Devices (magazines); Transferring Ammunition; Bequests Of Assault Weapons To Police Officers

SUBPART 1: Transferring Ammunition Magazines In New York: What You Need To Know

Introductory Remarks:

New York gun owners have many questions concerning gun transfers in New York, whether through sales or bequests to heirs. This is not a simple matter. We have dealt with this at length in a previous article on gun transfers. But there is much more to discuss, and we hope to get back to that issue in the foreseeable future. However, one aspect of gun transfers is rarely if ever discussed and that has to do with an important component of many firearms, predominately with semiautomatic pistols: the ammunition magazine. It may seem odd that the transfer of ammunition magazines requires discussion at all. After all, unless one is a licensed gun dealer, the notion of transferring parts of guns – gun barrels, gun grips, triggers, hammers, and so forth – makes little sense. The average consumer is interested in purchasing an entire firearm, not a melange of so many separate parts. And, an ammunition feeding device – generally an ammunition magazine – is certainly a critical part of a semiautomatic handgun. A semiautomatic handgun cannot function without one. And, one must be perplexed that a discussion related to the transfer of ammunition feeding devices, apart from a complete weapon’s system, should be necessary at all. But it is. This topic is not only meaningful, it is, in fact, necessary in the context of the New York Safe Act if one is to have a full and complete understanding of the awful consequences of the Safe Act in matters of gun transfers. And that says quite a lot about the very queer nature of the Safe Act.You will realize just how queer -- just how bizarre -- the Safe Act is once you have completed reading what we have to say here.We have divided Part 5, the last part of this multi-series Article on the issue of private property rights and bequests of firearms in New York, into 3 Subparts. Subpart 1 deals with transfers of ‘large capacity ammunition feeding devices.’Now, what we have to say here applies to all transfers of large capacity ammunition feeding devices. But, apropos of this comprehensive multi-series Article, we are primarily concerned with transfers of guns by way of testamentary bequests by gun owners to their heirs. For, nothing subverts one's private property interest in his or her firearms more than the idea that one's last will and testament should be denied effect because some powerful individuals in Government have a personal distaste for firearms and desire to use that power to enact laws that thwart others Constitutional right and interest in their own private property.Subpart 2 of this multi-series Article deals with the transfer of ammunition by bequest to heirs. And Subpart 3 deals, in pertinent part, with the issue of  transfers and -- more particularly -- bequests of assault weapons to heirs who are active duty police officers or retired police officers, and who, therefore, may not be considered “ordinary” New York residents and citizens of the United States, at least where gun rights are at stake.

HOW THE NEW YORK SAFE ACT TREATS AMMUNITION FEEDING DEVICES

An ‘ammunition feeding device’ (whether “large” or “small” – which is a subjective matter unless otherwise defined with particularity in the law) means, typically, an ammunition magazine. Now, it may seem odd to have to talk about transfers of ammunition magazines at all. Ammunition feeding devices, including ammunition magazines, are, after all, an essential and integral component of semiautomatic handguns and they are an essential and integral component of many rifles and of a few shotguns as well.A testator bequeathing a semiautomatic handgun to an heir wouldn’t reasonably think of bequeathing the weapon without the weapon’s accompanying ammunition magazine. And, the heir, as the intended recipient of a weapon, would certainly expect to receive all component parts of that weapon. Otherwise, obviously, the firearm is useless as a firearm, so that, if it were to have any use at all as a defensive weapon, one might consider using it as a club -- an expensive one at that -- and nothing more.Why, then, are we discussing the transfer of ammunition feeding devices at all since such devices are clearly a critical component of many small arms? We are doing so because the New York Safe Act treats ammunition feeding devices as a separate component of weapons – a very odd idea to contemplate but one that must be contemplated nonetheless, and appropriately dealt with.Treating a weapon and the components of a weapon as two distinct things creates an odd set of circumstances for the law-abiding New York gun owner and odd issues arise from those circumstances that have to be resolved if the New York gun owner is to hope to avoid incurring serious misdemeanor charges. And that point gets to the crux of the problem with the New York Safe Act: You may have a weapon the Safe Act doesn’t ban, but you may also have, at one and the same time, the weapon’s ammunition feeding device that the Safe Act does ban. This isn't mere supposition, as you shall see.Again, keep in mind: we are not talking here about weapons banned by the Safe Act. The Safe Act does, of course, ban outright weapons it defines as assault weapons. That, we all know. A New York resident and citizen of the United States cannot currently own -- that is to say, cannot at the present time own lawfully -- a weapon defined as an ‘assault weapon’ under the New York Safe Act unless that weapon was grandfathered in and timely registered as an assault weapon. The expression ‘grandfathered in’ means here that a New York resident who lawfully came into possession of an ‘assault weapon’ prior to enactment of the New York Safe Act, on January 15, 2013, may continue, lawfully, to possess the assault weapon, subsequent to the effective date of enactment of the Safe Act, namely, subsequent to January 15, 2013, so long as that gun owner timely and properly, registered it, namely, so long as that gun owner had, in fact, timely and properly registered it on or before April 15, 2014, as that date has come and gone. If the owner of an assault weapon has not timely and properly registered it on or before April 15, 2014, that gun owner is in unlawful possession of a banned firearm. But, assuming the original owner of a firearm defined as an assault weapon under the Safe Act -- lawfully possessed that weapon prior to the date of enactment of the NY Safe Act -- and, assuming, further, that the original owner of the assault weapon did in fact timely and properly register it so that, at this particular point in time, the gun owner is, in fact, in lawful possession of a firearm that is otherwise banned by the Safe Act, and, so, can continue to lawfully possess that assault weapon, still, that owner cannot, unfortunately, transfer the weapon to his or her heirs even if those heirs are otherwise eligible to own and possess firearms, unless the heirs are exempted from the ban on possession of assault weapons. Those New York residents who are exempted from the ban on possession of assault weapons include licensed New York gun dealers -- a very small number of New York residents to be sure.Moreover, the effect of allowing the original owners of assault weapons alone to continue to own assault weapons so long as they wish, or, otherwise, so long as they live -- means that ownership of and possession of those weapons cannot extend to the original owners' heirs. The drafters of the Safe Act undoubtedly intended to preclude the lawful ownership and possession of assault weapons in New York to extend beyond the original, first generation owners of them. The goal of proponents of the Safe Act is, then, to bring about the extinction of weapons defined as assault weapons from the landscape of New York within 50 years or so -- after the last lawful New York resident and owner of an assault weapon dies and the weapon or weapons is surrendered to the appropriate Government official for transfer to someone out-of-State or, otherwise, is surrendered to the appropriate Government official for no other purpose than for destruction.Similarly, a New York resident and gun owner who lawfully came into possession of a “large capacity ammunition feeding device” prior to enactment of the Safe Act may continue to possess that device, but he or she cannot lawfully transfer it to another law-abiding eligible New York resident in the State, including an heir, unless, once again, the heir is also a licensed gun dealer or falls under another exemption. As with firearms defined as assault weapons, the goal of proponents of the Safe Act is to bring about the extinction of large capacity ammunition feeding devices from the landscape of New York within 50 years or so -- once again, after the last lawful owner of such a device dies.

LET'S TAKE A LOOK AT THE APPLICABLE NY SAFE LAWS

Section 37(H) of the New York Safe Act, as codified in Subdivision 22 of Section 265.00 of the Penal Code, namely, NY CLS Penal § 265.00(22)(h) bans the transfer of large capacity ammunition feeding devices. NY CLS Penal § 265.00(22)(h) says: “Any weapon . . . 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.” Now, NY CLS Penal § 265.00(22) talks specifically about banned weapons, namely weapons defined as assault weapons under Section 37(A through F) of the New York Safe Act, as codified in Subdivision 22(a through f) of Section 265.00 of the Penal Code, namely, NY CLS Penal § 265.00(a through f); and those Sections of the Safe Act must be read in conjunction with Section 37(H) of the Safe Act as codified in NY CLS Penal § 265.00(22)(h). Be advised, failure to comply with these obligatory Sections will subject the New York gun owner to a Class A misdemeanor charge. And, if that happens, the gun owner will lose his or her handgun license and, where applicable, namely, in New York City, the gun owner will lose his or her rifle and shotgun permit as well. That means the gun owner will can no longer lawfully own and possess firearms in New York.But, we are not discussing here the ramifications of the New York Safe Act on those who are in lawful possession of assault weapons, who wish to lawfully dispose of them. The weapons we are talking about here are permitted weapons under the Safe Act. But, many ammunition feeding devices – specifically, “large capacity ammunition feeding devices” manufactured with the weapon, are not. Those devices are banned under the Safe Act. How do we know this? We know this because the NY Safe Act says so. The Safe Act, as we have seen, specifically, in Section 37(H) of the New York Safe Act, as codified in Subdivision 22 of Section 265 of the Penal Code, namely, NY CLS Penal § 265.00(22)(h), explicitly and categorically tells the gun owner that “large capacity ammunition feeding devices” are banned in New York.The Safe Act incongruously views a weapon and the ammunition feeding device as two separate devices – not as an integrated whole weapon. We explain. But, first:

WHAT IS A LARGE CAPACITY AMMUNITION FEEDING DEVICE?

A large capacity ammunition feeding device – typically an ammunition magazine – is a legal fiction, just as the notion of an ‘assault weapon’ is a legal fiction. A large capacity ammunition feeding device is a legal fiction created by the drafters of the Safe Act. The drafters of the Safe Act, obviously enough, created this legal fiction to further whittle down the number and kinds of weapons a gun owner might lawfully own and possess.The New York Safe Act defines a ‘large capacity ammunition feeding device’ in Section 38 of the New York Safe Act. Section 38 of the Safe Act is codified in subdivision 23 of Section 265.00 of the Penal Code of New York, namely, NY CLS Penal § 265.00(23). NY CLS Penal § 265.00(23) sets forth, 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.” What does this Section of the New York Safe Act tell us? Section 38 of the Safe Act as codified in subdivision 23 of Section 265.00 of the Penal Code of New York, namely, NY CLS Penal § 265.00(23), tells us that an ammunition feeding device that is capable of holding more than 10 rounds of ammunition is, by law, a banned and, therefore, illegal device. Granted, a large capacity ammunition feeding device isn’t a weapon itself; it is simply a component of a weapon – a critical component to be sure, but a critical and banned component nonetheless.Now, be aware what NY CLS Penal § 265.00(23) does not say. NY CLS Penal § 265.00(23) does not say – nor does it suggest – that it is legal to own and possess a large capacity ammunition feeding device so long as a person keeps fewer than 10 rounds in it. No. The Safe Act makes abundantly clear -- and it is enough -- that merely possessing a “large capacity ammunition feeding device” is illegal if the gun owner happens to gain possession of it subsequent to enactment of the Safe Act. So, that large capacity ammunition feeding device can be empty. Your possession of it under NY Safe is still illegal, whether the magazine is completely filled with cartridges, partially filled with ammunition, or is, simply, completely empty.But, is there such a thing, under New York law, of a weapon that is legal to own – that isn’t also an assault weapon under the Act – but comprises a component part that is itself illegal? The answer is: Yes!Now, to prove our point, let’s consider a firearm that a New York resident and citizen of the United States can lawfully possess and transfer to eligible recipients in New York – including, then, a weapon that a gun owner can transfer lawfully to one’s eligible heirs – but one that incorporates a large capacity ammunition feeding device that cannot be lawfully transferred to a New York resident and citizen of the United States, unless, again, that New York resident and U.S. citizen falls within a specific exemption in the law.

AN EXAMPLE OF A FIREARM PERMITTED UNDER THE NY SAFE ACT THAT INCLUDES AN AMMUNITION FEEDING DEVICE THAT IS NOT PERMITTED UNDER THE SAFE ACT

One good example of a semiautomatic handgun that the Safe Act does not ban is the popular Glock 17. As the name suggests, the Glock 17 has a magazine that holds 17 rounds of 9x9mm cartridges.The Glock 17, sans the 17 round magazine, is perfectly legal for an eligible New York resident and U.S. citizen to own and possess. That means the Glock 17 is not defined as an assault weapon under the Safe Act. How do we know that? Well, let’s take a look at what the New York Safe Act says.Section 37(C) of the Safe Act is codified in subdivision 22 of Section 265.00(22)(c) of the Penal Code of New York, namely, NY CLS Penal § 265.00(22)(c).  That Section, NY CLS Penal § 265.00(22)(c), says, “Assault weapon” “means a semiautomatic pistol that has an ability to accept a detachable magazine and has at least one of the following characteristics: (i) a folding or telescoping stock; (ii) a thumbhole stock; (iii) a second handgrip or a protruding grip that can be held by the non-trigger hand; (iv) capacity to accept an ammunition magazine that attaches to the pistol outside of the pistol grip; (v) a threaded barrel capable of accepting a barrel extender, flash suppressor, forward handgrip, or silencer; (vi) a shroud that is attached to, or partially or completely encircles, the barrel and that permits the shooter to hold the firearm with the non-trigger hand without being burned; (vii) a manufactured weight of fifty ounces or more when the pistol is unloaded; or (viii) a semiautomatic version of an automatic rifle, shotgun or firearm.” Let's first look at and apply the above definition of an assault weapon. The definition of a handgun that is also an assault weapon under the Safe Act is also the test you use to determine whether your own handgun is also an assault weapon and therefore a banned weapon under the Act. So, let’s see if a stock Glock 17 that is manufactured to be sold in the civilian market is an assault weapon under the Safe Act.According to the manufacturer’s website, a stock Glock 17 weighs 25.06 ounces unloaded. It does not have a folding or telescoping stock; nor does it have a thumbhole stock. It does not have a second handgrip or a protruding grip that can be held by the non-trigger hand. It does not have the capacity to accept an ammunition magazine that attaches to the pistol outside of the pistol grip. Moreover, a stock Glock 17 does not have a threaded barrel capable of accepting a barrel extender, flash suppressor, forward handgrip, or silencer. Lastly, a stock Glock 17 that is designed for the civilian market is not sensibly a semiautomatic version of an automatic rifle, shotgun or firearm, whatever that means.So, we can conclude with reasonable certainty, that a stock Glock 17 as designed for the civilian market is not an assault weapon under the Safe Act. An eligible New York resident and U.S. citizen can therefore lawfully own one. And you will note, there is nothing in the definition of a pistol that is also an assault weapon that talks about magazine capacity. But, Section 38 of the Safe Act as codified in subdivision 23 of Section 265.00 of the Penal Code of New York creates a problem for the New York gun owner who lawfully owns and possesses a Glock 17 and wishes to transfer the gun to another eligible New York resident and citizen of the United States. For, NY CLS Penal § 265.00(23) says that it is unlawful for a New York resident to lawfully possess an ammunition feeding device that is capable of holding more than ten rounds of ammunition if that eligible New York resident happened to come into possession of that ammunition feeding device after enactment of the Safe Act.What all this boils down to is this: If you are a New York resident and U.S. citizen that lawfully came into possession of a stock Glock 17 semiautomatic pistol with, reasonably enough, the stock ammunition magazine that was manufactured with and for the Glock 17, prior to enactment of the New York Safe Act, and you wish to transfer that Glock 17 semiautomatic pistol to another eligible New York resident and citizen of the United States, you are permitted, under the Safe Act, to do so and that includes, of course, a transfer of the weapon to your heir by testamentary bequest.  But, what you cannot do– what you are absolutely forbidden from doing – is attempt to transfer to an otherwise eligible New York resident and U.S. citizen, including, particularly, your eligible heir who also resides in New York – the 17 round capacity ammunition magazine that came with the weapon, unless that New York resident is also a licensed New York gun dealer or is otherwise exempted from the applicable provisions of the Safe Act.Again, you can only lawfully transfer that 10+ ammunition magazine to a New York resident and U.S. citizen who happens to be exempted from the applicable provisions of the Safe Act, such as a New York licensed gun dealer, or you can lawfully transfer that 10+ round capacity ammunition magazine to an eligible recipient who resides outside the jurisdiction of New York, or you can simply surrender that device to the appropriate official for destruction.As you can see, the New York Safe Act is horribly convoluted, ill-conceived, poorly drafted, and wrongly enacted. That the New York Safe Act exists and operates in New York at all says much about some – all too many – New York Legislators’ and Government Officials’ who wanted it, who campaigned for it, and who show, even to this present moment in time, a marked contempt for and condescending attitude toward New York residents and citizens of the United States who wish merely to exercise their sacred Second Amendment right to keep and bear arms.In Subpart 2 of Part 5 of this multi-part series Article, that we will present to you shortly, we look at the issue of ammunition. Can ammunition be lawfully transferred from one eligible New York gun owner to another or do strict controls exist in New York on the transfer of ammunition from one New York resident and U.S. citizen to another? Little if anything is said about this. We carefully examined the laws of New York. The answer may surprise you.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) and Vincent L. Pacifico (Orca) All Rights Reserved.

QUESTIONS THE NEW YORK GUN OWNER SHOULD ASK BEFORE TRANSFERRING GUNS BY TESTAMENTARY WILL TO ONE’S HEIRS

PART 4: Given The Obvious Difficulties For A New York Resident And Gun Owner Who Wishes To Transfer Firearms To One's Heirs - How Should A Firearms' Owner Proceed If He Or She With BEQUEST Of Firearms To Heirs?

In the previous post of this multi-series article we looked at several New York Statutes impacting the transfer of firearms to one’s heirs. In this post we deal with the technical problems associated with bequests of firearms.To begin, the owner of a firearm or collection of firearms must, of course, be mindful of the laws pertaining to bequests of firearms. And, let it be understood, we are here talking about lawful ownership of firearms and the lawful transfer of firearms, not criminal possession and criminal transfers of firearms.In theory, at least, proponents of NY Safe would likely argue that your firearms are, indeed, your private property. Of course, if that were true, then you would have absolute control over them as well as exclusive ownership of them. After all, that is what the concept of private property means: exclusive ownership and absolute control. And, too, if that were the case, we would not need to spend considerable time, as we have done, discussing bequests of firearms. However, in New York, while you do have exclusive ownership of your firearms – that is to say, your firearms are not the property of the State, and they are not the property of the public at large – you never have absolute control over them. Thus, the statement, "a New York resident has absolute control over his or her firearms," is not truly an accurate one.  Indeed, the idea is highly implausible even to contemplate in a jurisdiction such as New York. Just take a look at the numerous New York laws that negatively impact your control over your own firearms and the specific manner in which your control over those firearms is constrained and restricted! In that regard, if you haven’t already done so, we ask that you take a look at the earlier installments of this multi-series Article: Part 1, Part 2, and Part 3. Doing so will provide you with the conceptual framework you need upon which you can truly understand and appreciate the insidious way in which the New York Safe Act and other New York antigun laws associated with it operate to rob a New York gun owner of the private property interest one has in one's own firearms. You will then be able to place this particular post, Part 4, in the proper context and make maximum use of it as you begin to draft for the first time your testamentary will or otherwise prepare to modify a presently existing testamentary will, to provide for the lawful transfer of your firearms to your heirs.So, if you live in New York and you own and possess firearms, you don’t have absolute control over those firearms, in view of the numerous laws and regulations mandating and detailing how they are to be used and kept. And, the executor of your estate has even less control over them once you are gone, as your executor attempts to transfer the firearms to your heirs. So, in the absent of absolute control over your firearms, you do not have the enjoyment of your firearms while you are alive. And your heirs may not be able to obtain lawful possession of them upon your death.You cannot transfer your firearms to whomever you want whenever you want, during your lifetime. And, your executor may not be able to transfer them at all to your heirs upon your death, regardless of your wishes as expressed in your testamentary will.You are always in danger of losing possession of your firearms at the whim of the State while you are alive. And the State may deny you the right to transfer the firearms to your heirs, through your testamentary will, once you are gone. And, be advised, we are here concerned about transfers of guns after you die – in other words, bequests of firearms to one’s heirs. We are not dealing with the problems attendant to gun transfers while you are alive, which pose their own set of problematic issues.Moreover, as we have heretofore pointed out, although you can, in your will, bequeath your firearms to whomever you wish, that means nothing if nothing can come of it. In other words, a bequest that cannot be effectuated is no real bequest at all. The effectuation of a bequest is what matters: whether the person to whom you make a bequest of firearms is eligible, under the law, to possess them. And, that is what really counts to the testator and to the eventual heir who hopes to inherit the testator’s firearms.So, when making one or more bequests of firearms, you must consider the possibility, a real possibility, that your legatees – that is to say the prospective heirs of your gun collection, as stipulated in your will – may not be able to hold and keep them.To assist you in preparing your will, if you are an owner of firearms and wish to bequeath your firearms to one or more heirs, we have prepared, for you, first, a series of questions that you, as a testator – the maker of the will – ought to ask yourself. These are questions that you, as testator, should ask whether you own one firearm, or a few firearms, or a substantial number of them -- one or more of which may be part of an extremely valuable and rare collection -- when preparing your will. And, we have provided you, second, a checklist that you may find helpful and that you may wish to utilize, as well, when considering the transference of your firearms to one or more heirs.

A WORD OF CAUTION BEFORE WE PROCEED:

We are not providing you here with advice on how to draft a testamentary will. We could not do that even if we wished to do so. That is a legal matter, and we strongly suggest you retain the services of a licensed attorney to assist you in that endeavor. Furthermore, in that regard, be advised there is no such thing as a “simple will.” As everyone is a unique individual – a truth that antigun proponents refuse to accept or to concede – and as every unique individual has his or her own unique set of needs and wishes and concerns and circumstances, a will must be drafted to meet that individual’s unique needs and wishes and concerns and circumstances. Only a licensed attorney can best provide those services for you. There are no shortcuts; there is no person other than a licensed attorney who can properly assist you; and, where firearms are included in one’s estate, specific, considerable, and formidable obstacles exist to will formation that would not otherwise exist. Therefore, the need for a licensed attorney becomes critical. The need for a licensed attorney to assist the testator in drafting his or her will becomes critical because the executor or administrator of the decedent's estate, who first comes into possession of the decedent's firearms, is at considerable risk of incurring misdemeanor or even felony charges for failure to properly and timely deal with those firearms in strict accordance with law.The most important consideration here is, then, that neither the executor of your estate, on the one hand, nor your heirs, on the other, runs afoul of the law once you are gone and your firearms remain to be disposed of. For, the last thing that you would wish to leave the executor or administrator of your estate, and your heirs, is a nest of trouble. And, the existence of firearms in one’s hands in a jurisdiction like New York is, unfortunately, an invitation to trouble – as much, if not more so, for the law-abiding New York resident and U.S. citizen, as for the criminal, the latter of whom couldn’t care less about New York gun laws.What we are providing for you here is a solid foundation for one sort of bequest that you will be making -- a bequest of firearms to your heirs.  If you can answer the questions we provide for you, that will go a long way in assisting your attorney when he prepares your will for you.

QUESTIONS THE NEW YORK GUN OWNER SHOULD ASK BEFORE BEQUEATHING FIREARMS TO ONE’S HEIRS

Below are several of the questions you should ask yourself if you are a New York resident and happen to own one or more firearms and wish to bequeath that firearm or those firearms to others upon your death. Indeed these are the questions we would ask of ourselves. In fact, if anyone who is reading this post is a firearms’ owner, who resides outside New York and who resides in a jurisdiction that might be considered friendly to, or, at least, friendlier to possession of firearms by residents and U.S. citizens, consistent with the import and purport of the Second Amendment, several of the questions set forth below are certainly applicable to your jurisdiction as well, to the extent that you wish to plan now for, or in the foreseeable future for, the disposition of your firearms – your private property – to others upon your death.

ONE FURTHER POINT BEFORE WE PROCEED

The information we are providing for you below is a distillation of and expansion on certain content found in the following law review article: Note: A Testamentary Gift of Felony: Avoiding Criminal Penalties From Estate Firearms," Nathan G. Rawling, 23 Quinn. Prob. Law Journal 286 (2010). The author of the law journal article may disagree with our interpretation of and application of various material that appears in his Note. Be that as it may, we mention the law journal article in order to give due credit to the source for much of the information that follows even if the manner in which we use that information here differs from the manner in which the author himself uses it in his Note, or might wish to use it for other purposes at a later point in time.

QUESTIONS A GUN OWNER SHOULD ASK WHEN CONSIDERING A DISPOSITION OF ONE’S FIREARMS TO ONE’S HEIRS

First, what procedures must the executor of my estate and my heirs be aware of and adhere to when coming into possession of my firearms so as to avoid criminal liability? We have, in this multi-part series, provided you with most, if not all, of the major New York Statutes you must be aware of. There might be others -- at least laws tangentially related to and directed to bequests of firearms.  And, they must all be construed together. The statutes that we have given you here provide your executor – or your heir, if the heir himself or herself is the first person to come into contact with the firearms upon your death – with his or her duty under the law. For example, and most importantly, upon your death, whoever comes into contact with firearms must surrender them to the appropriate authority within 15 days of receipt of them. Failure to do so may result in a felony charge.Second, does the bequest of a particular asset involve an item defined as a firearm? This might not be as obvious at first glance as you may think. For example, suppose you have a firearm that has been rendered permanently inoperable. Does that firearm constitute a firearm qua firearm under the law? And, suppose you have an item that has the appearance of a true, functioning firearm, but it is a “dummy.” Do you still treat it as a firearm under the law? Suppose the firearm is an antique – or a quasi-functioning firearm such as an old musket or wheel lock? Is that object treated as a firearm under the law? Is a “starter pistol” classified as a firearm under the law? You must be prepared to answer these questions.Third, of those objects that I have reason to know are firearms, how are they categorized? Which firearms are pistols? Which firearms are rifles? Which firearms are shotguns? Be prepared to describe the firearms with particularity. Fourth, how many, if any, of my firearms are defined as an assault weapon under New York Law?For New York residents and residents of other States that have laws specifically defining certain weapons as assault weapons and strictly controlling ownership and possession, of them, this question is a particularly critical one, to be given particular consideration to.Fifth, how many, if any, of my firearms are classified as a ‘machine gun’ under New York law; and how many of them are classified as ‘selective-fire weapons’? Does New York law distinguish between selective-fire weapons and full-auto only weapons in its classification scheme? Do selective-fire weapons and full-auto only weapons fall under the nomenclature of assault weapons under New York law? Actually, under New York law selective-fire weapons and full-automatic weapons are not defined as assault weapons under. However, under Connecticut law, selective-fire weapons and full-automatic weapons are also defined as assault weapons.Sixth, are each of my heirs eligible to possess firearms? Suppose that each of my heirs is eligible to possess firearms at the time I draft my testamentary will. But, how do I know that my heirs will be eligible to possess firearms in the future? Suppose I have four heirs and I have a substantial number of firearms that I wish to bequeath to each of them. Now, suppose, further, that, at the time I am preparing my will, each of my heirs has a valid pistol permit; that two of my heirs live in New York City; that one of my heirs lives in upper State New York; and that one of my heirs lives in Connecticut. Suppose further that, of the two heirs who live in New York City, one of them has a valid rifle and shotgun permit, but the second one doesn’t. How do these specific facts affect the eligibility of each of my heirs to receive the specific firearms I wish to bequeath to each of them?Seventh, what are the applicable State laws? Apropos of the above example,  you must be mindful of both New York law and Connecticut law. Both jurisdictions have exceedingly restrictive gun laws, but one, Connecticut, allows an eligible person to receive a firearm defined as an assault weapon. New York does not. As you may recall, we pointed out that, in New York, assault weapons can only be lawfully possessed by the original owner. Assault weapons cannot be transferred to anyone else, including a blood relative and prospective heir to firearms. In Connecticut, they can.Eighth, what are the applicable Federal Laws? We haven’t discussed this, but you must be mindful of the possible impact of Federal laws on gun transfers. There are the Gun Control Act of 1968 and the National Firearms Act of 1934 both of which regulate transfers of guns and the National Firearms Act of 1934 also imposes a tax on gun transfers.Ninth, what are the penalties for failure to follow – to the letter – the applicable State and Federal Laws? You must know the penalties and, to avoid, the penalties, you must know the law. The old adage, “ignorance of the law is no excuse,” is one that gun owners should burn in their memory.Tenth, what do I need to know about gun transfers to heirs who live in another jurisdiction? If an heir to a bequest of firearms lives in another State, you must know and adhere to the requirements of transfers of guns to that resident who lives in a State other in New York. The requirements pertaining to gun transfers may be just as stringent in another jurisdiction as they are in New York. Even so, the laws pertaining to transfers will undoubtedly differ in several respects from one jurisdiction to another, and the very definition of ‘assault weapon,’ in particular, will differ from one State to the next. You must comply with the laws of each jurisdiction in which your firearms happen to be located and your heirs happen to reside.Eleventh, what happens if one of my heirs who is eligible to receive firearms at the time I draft my will, becomes ineligible to receive firearms at the time of my death? Your will should provide the executor with appropriate alternative instructions in the event that certain classes of firearms cannot be transferred to a particular heir or if it comes to light that a particular heir is no longer eligible to receive firearms at all or if the heir simply doesn’t want to take possession of one or more firearms.Twelfth, what do I do if the law pertaining to firearms changes? This is analogous to the question immediately above. Often – all too often of late – firearms laws become ever stricter. Ever more types of firearms become banned. And eligibility requirements become stricter. Once again, the maker of a will, the testator, should provide the executor of the estate, with specific instructions if it becomes evident that the bequest of firearms becomes too difficult to comply with or altogether impossible to administer. Ultimately, the testator may be compelled to sell the entirety of the collection of firearms well prior to his or her death in order to maximize the best price for the firearms. This would be unfortunate but would prevent headaches for the executor and heirs and would prevent the imposition of felony charges for failure to adhere to “the letter of the law” when coming into possession of the testator’s firearms.

A CHECKLIST FOR TESTATORS WHO OWN FIREARMS AND ARE IN THE PROCESS OF DRAWING UP THEIR TESTAMENTARY WILLS

• Accurately describe all firearms in your collection
• Be sure to provide the executor or administrator of your estate with clear, comprehensive, and explicit instructions for disposing of your firearms, so that all Federal and State gun laws, as well as applicable local ordinances, are adhered to.
• Determine whether each of your heirs to whom you wish to bequeath one or more firearms is eligible to own firearms generally, and, further, is eligible to possess the particular firearms you wish to bequeath to each heir.
• Confirm that each of your heirs has the necessary pistol licenses and, where applicable, such as and namely, New York City, a valid long arm permit.
• Do your heirs all live in New York? if not, what other State do one or more of your heirs live in, to whom you wish to bequeath one or more of your firearms?
• Are you familiar with the laws of each jurisdiction in which you own and possess firearms and in which each of your heirs live to whom you wish to bequeath your firearms?
• Are you familiar with the possible impact of Federal law on transfers of firearms to heirs. Little is said about the operation of Federal law. And we have not gotten into that here. But Federal Law as well as State law may have a decisive impact on the transfer of some or all of your firearms.
• Are any of your firearms classified as ‘assault weapons’ under the law of the jurisdiction where your heir or heirs reside, if other than New York?
• Do you own weapons that are classified as ‘machine guns?’ If so, you must definitely be familiar with Federal law as well as State law, concerning the transfer of those weapons to your heirs. There are specific eligibility requirements for ownership of and possession of fully automatic and selective fire weapons.
• If you own guns defined as machine guns, do your heirs have the appropriate current and valid federal licenses that would allow them to take possession of machine guns?
• Have you confirmed whether your heirs even wish to own and possess the particular firearm or firearms you wish to bequeath to them? You may presume, wrongly, that your heirs wish to take possession of your firearms. This is one type of property – unlike jewelry or expensive art or gold bullion or blue chip stocks or cash – where your presumption may be completely erroneous.
• Suppose, at the time of your death, one or more of your heirs, to whom you wish to bequeath your firearms, is no longer eligible to possess firearms. Or, suppose New York gun laws change and eligible recipients of your firearms, at the time you made out your will, are no longer eligible to receive certain firearms. Have you made arrangements for an alternative disposition of your firearms in the event that one or more of your heirs, to whom you wish to bequeath your firearms, is no longer eligible to possess firearms at the time of your death because of changed circumstances in that person’s life or in the event of further yet more draconian changes in New York gun laws that make it impossible for an executor or administrator to lawfully transfer firearms to your heirs?
• What are the penalties that your executor, or administrator or heirs might face for failure to adhere to all applicable laws pertaining to the lawful transfer of and possession of firearms? Know those laws! And, be certain that the executor or administrator of your will and that your heirs, too, are knowledgeable about the laws.

UPCOMING INSTALLMENT

In the fifth and final installment of this multi-series Article, we will discuss a few other matters we have not previously touched upon – matters that are directly related to bequests of firearms. For example, one might assume that the New York gun owner, like a gun owner residing anywhere else in the United States, will have a store of ammunition for one’s firearms. That is only reasonable. And the gun owner will likely wish to bequeath ammunition to one’s heirs, along with one’s firearm or collection of firearms. That, too, is only reasonable. And, York law has much to say about commercial transactions involving ammunition. Yet, New York law has virtually nothing to say about transfers of ammunition that do not involve commercial transactions. So, can a testator bequeath his or her ammunition to the testator’s heirs? We will get into that in Part 5 of this multi-series Article.And, then there is the issue of “large capacity ammunition feeding devices (magazines).” The New York Safe Act treats so-called large capacity magazines, separate and apart from the firearm itself. So, the firearm and the magazine are two distinct devices under New York law. Thus, the New York resident may have a firearm that is in fact, legal, but may have a magazine for that weapon, that, itself, isn’t legal, even though the magazine came with the gun – was, in fact, clearly, a critical component of the gun. Indeed, imagine, a gun dealer selling you a semiautomatic, but refraining from selling you the magazine that the manufacturer designed for it, to be used and sold together with it. Can a large capacity feeding device be transferred to heirs, along with the weapon that was manufactured with it, insofar as the magazine, reasonably, ought to be construed as integral to the weapon and would certainly have been sold with it? For, otherwise, why would an individual choose to purchase a semiautomatic weapon without the magazine? Would a person wish to purchase an automobile without the engine? The New York Safe Act creates, for the law-abiding New York gun owner, an “Alice and Wonderland World;” a place where things are not always as they seem; a place where you must leave your reason and sanity at the door before entering. If a testator can transfer a semiautomatic firearm to his or her heirs, can that testator also transfer the “large capacity ammunition feeding device” that came with it? We will discuss the ramifications of that question in the next installment of this multi-series Article as well.We will also talk about police officers -- but not in their professional capacity as police officers. We will be addressing the issue of bequests of firearms to police officers. Does New York law treat bequests of firearms to police officers any differently from bequests of firearms made to a New York resident who is not an active duty police officer or is not a police officer retired from the force?Of course, a police officer may lawfully possess and use so-called “assault weapons” when on active-duty, and, while on active-duty, the officer will most likely have access to “large capacity ammunition feeding devices” as well. Perhaps that officer may, and probably can, in accordance with Departmental policy, possess and use that same weapon when off-duty, too. That isn't our concern here. What is of concern here and relevant to the discussion, is whether that officer may receive and possess a non-departmental assault weapon as a bequest, for example, from a dying uncle, who happened to have purchased it lawfully prior to enactment of the NY Safe Act and who had timely registered it subsequent to enactment of the Act, in strict accordance with the Act. The answer to that question may surprise you. The answer may, in fact, surprise many New York police officers as well. We will deal with that matter as well in the upcoming fifth and final installment of this multi-series Article.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) and Vincent L. Pacifico (Orca) All Rights Reserved.

The NY Safe Act Strips New York Gun Owners of Property Rights in Their Own Guns

PART 3: A LOOK AT THE NEW YORK SAFE ACT AND RELATED NEW YORK STATUTES THAT DEPRIVE GUN OWNERS OF THEIR PRIVATE PROPERTY INTEREST IN THEIR OWN FIREARMS

CAPSULE SUMMARY

In this installment of our multi-series article on New York's mangling of the private property right interest in one's firearms, we look at actual New York Statutes that deprive New York gun owners of that property rights interest in their own guns from the specific standpoint of bequests of firearms. We list the Statutes, describe them, and explain how they operate to defeat one’s private property interest in one’s firearms as the Statutes. We explain how New York Statutes interfere with one’s right to make bequests of firearms to one’s heirs and, so, undermine one's property interest in one's own firearms.We will show you that, under present New York law, a New York resident and citizen of the United States does not have absolute control over his or her own firearms. That means that one’s private property interest is not preserved. If so, that is in contravention to the U.S. Constitution and in contravention to the New York State Constitution as well.Be forewarned: what follows is not a simple matter under discussion. But for New York gun owners it is certainly a critically important one. As failure to adhere to New York gun laws can create very serious issues for the executor of one's estate and for one's heirs.

NEW YORK STATUTES THAT OPERATE TO RESTRICT OR DEPRIVE A PERSON FROM TRANSFERRING ONE’S FIREARMS – ONE’S PRIVATE PROPERTY – TO ONE’S HEIRS

Now, let us begin.

HOW NEW YORK LAW DEPRIVES NEW YORK RESIDENTS AND CITIZENS OF THEIR ABILITY TO TRANSFER THEIR FIREARMS TO THEIR HEIRS IN CONTRAVENTION OF AND IN DEFIANCE OF A DECEDENT’S SPECIFIC BEQUESTS

22 NYCRR § 207.20 says, “the fiduciary or attorney of record [of a decedent’s estate] shall furnish to the court a list of assets constituting the gross estate for tax purposes, but separately listing those assets that either were owned by the decedent individually including those in which the decedent has a partial interest, or were payable or transferrable to the decedent’s estate; and those assets held in trust, those assets over which the decedent had the power to designate a beneficiary, jointly owned property, and all other non-probate property of the decedent.”The New York Safe Act adds a new and noxious wrinkle to the requirement in 22 NYCRR § 207.20. Under Section 53 of the Act, codified in the Surrogate Court’s Procedure Act, NY CLS SCPA § 2509, titled “Firearm’s Inventory,”  because a decedent’s firearms’ collection must be delineated with particularity. That list must be filed not only with the surrogate’s court for probate, but also with the division of criminal justice services.NY CLS SCPA § 2509, says, “Whenever, by regulation, rule or statute, a fiduciary or attorney of record must file a list of assets constituting a decedent’s estate, such list must include a particularized description of every firearm, shotgun and rifle, as such terms are defined in section 265.00 of the penal law, that are part of such estate. Such list must be filed with the surrogate’s court in the county in which the estate proceeding, if any, is pending and a copy must be filed with the division of criminal justice services.”At first glance, it’s clear that a person’s gun collection is separated out from a decedent’s other assets for special and undesirable treatment because a fiduciary or attorney of record must send an inventory of those firearms’ assets to the division of criminal justice service for action. The fiduciary or attorney of record doesn’t do that for other personal property.Section 53 of the NY Safe Act also mandates that a list of the decedent’s firearms must be listed with particularity, consistent with the definitions for ‘assault weapon’ as set forth in Section 37 of the New York Safe Act, as codified in NY CLS Penal § 265.00(22).Section 37 of the NY Safe Act delineates complex definitional constructions of assault weapons. These definitions are not nearly as clear in meaning as the drafters of the Safe Act may have intended.Now, suppose a New York resident and gun collector has guns that are defined as 'assault weapons' under NY CLS Penal § 265.00(22), Section 37 of the NY Safe Act. Can a testator bequeath those firearms to anyone the testator wishes, including and especially, a family member related to the testator by blood? Well, a testator can certainly bequeath particular items of personal property to whomever the testator wants and that includes bequests of weapons, including the testator’s assault weapons. There is nothing in the probate code of New York to suggest otherwise. And that is consistent with the fundamental right of a testator to bequeath his private property to whomever the testator wishes. And proponents of the New York Safe Act would likely argue that nothing in New York law prohibits a gun owner from bequeathing his or her guns to whomever the gun owner wishes. And, that is certainly true, as far as it goes. But, the real question, the pertinent question, is whether the heir or legatee to the bequest can keep those firearms, especially assault weapons. And there’s the rub. The answer to that question is a resounding, “no!”The New York Safe Act proscribes anyone but the original owner of assault weapons from keeping those firearms. And that includes close family members, whom the testator may wish to bequeath those weapons to. So, the bequest of assault weapons to heirs, who are not also licensed gun dealers, is an empty bequest. The testator’s wishes, upon his death, are unconscionably countermanded by the New York Safe Act; and the heir’s desire to obtain the testator’s private property – the testator’s assault weapons in accordance with the testator’s express wishes – to become, then, the new owner of them, as the testator wished – is helplessly and hopelessly frustrated and thwarted.Section 37(H) of the NY Safe Act, codified in the Penal Code of New York, NY CLS Penal § 265.00(22) (h), says, “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.”Section 37(H) of the NY Safe Act, codified in the Penal Code of New York, NY CLS Penal § 265.00(22) (h), means that any firearm, defined as an ‘assault weapon,’ cannot be lawfully retained by anyone other than the original owner of it.So, while an assault weapon can be bequeathed by a testator to an heir, that bequest is more often than not an empty gesture. It means nothing because, once again, the decedent’s heir cannot keep the assault weapon (or assault weapons if there is more than one) for more than a few days even if that heir otherwise holds a valid pistol license and, where required, namely, in New York City, a valid rifle and shotgun permit as well.Section 37(H) of the NY Safe Act, codified in the Penal Code of New York, NY CLS Penal § 265.00(22) (h), is extraordinarily draconian, for it categorically denies ownership of assault weapons by New York residents beyond first generation, original owners.Do you understand what proponents of the New York Safe Act are doing here?Proponents of the Safe Act are destroying the possibility of ownership of entire categories of firearms, defined as assault weapons, to future generations of New York residents and U.S. citizens. This, clearly and obviously enough, to those who read through the NY Safe Act, was the intent of the drafters of the Act.Curiously, even the neighboring State of Connecticut – which does not, by any stretch of the imagination, have gun laws one might call, “liberal,” apropos of firearms ownership and possession, and is not a State that can honestly be said to respect the import and purport of the Second Amendment to the U.S. Constitution  – does not itself deny ownership of firearms defined as assault weapons to successive generations of gun owners who are otherwise eligible to possess firearms. So, Connecticut, unlike New York, respects, to some extent, at least, the possession of firearms classified as 'assault weapons' by heirs to the original owner of them, in its own Statutes, to heirs who are eligible to possess firearms.To be sure, Connecticut, even more so than New York, has devised an undeniably complex, if more comprehensive, system for categorizing those firearms it calls ‘assault weapons.’ See, Conn. Gen Stat. § 53-202a. In fact Connecticut’s system of categorizing firearms is more comprehensive and complex than New York’s system, if less ambiguous overall.But, Connecticut, unlike New York, does not exclude successive generations of families from owning those assault weapons, assuming heirs to one’s firearms are eligible to possess firearms at all. See Conn. Gen Stat. § 53-202b(b)(3), which exempts from transfers of assault weapons, those transfers of assault weapons to heirs. The Statute sets forth a specific exemption for: “the transfer of an assault weapon for which a certificate of possession has been issued under section 53-202d, by bequest or intestate succession, or, upon the death of a testator or settlor: (A) To a trust, or (B) from a trust to a beneficiary who is eligible to possess the assault weapon." New York, unfortunately, does not have a similar statute. Weapons classified as assault weapons cannot be transferred to heirs under any circumstance in New York.

WHAT MUST THE EXECUTOR, ADMINISTRATOR, OR HEIR DO ONCE HE OR SHE COMES INTO CONTACT WITH DECEDENT’S FIREARM OR FIREARM’S COLLECTION?

Once a New York firearms’ owner dies, the executor or administrator of the decedent’s estate who comes into possession of the decedent's firearms, or, otherwise, the heir who comes into immediate possession of decedent’s firearms, has a very short window in which to surrender the firearms to the appropriate official.NY CLS § 265.20(a) (1) (f) of the New York Penal Code says, in pertinent part, “. . . A person who possesses any such weapon, instrument, appliance or substance as an executor or administrator or any other lawful possessor of such property of a decedent may continue to possess such property for a period not over fifteen days. If such property is not lawfully disposed of within such period the possessor shall deliver it to an appropriate official described in this paragraph or such property may be delivered to the superintendent of state police. Such officer shall hold it and shall thereafter deliver it on the written request of such executor, administrator or other lawful possessor of such property to a named person, provided such named person is licensed to or is otherwise lawfully permitted to possess the same. If no request to deliver the property is received by such official within one year of the delivery of such property, such official shall dispose of it in accordance with the provisions of section 400.05 of this chapter.”This Section is very important. It tells the administrator, executor, or holder of firearms that the firearms – all of them, not merely those that are defined as assault weapons – must be surrendered to the appropriate authority within 15 days of receipt of the firearms, upon the death of the owner of the firearms.And, who is an appropriate authority who can receive firearms? The first – and lengthy – sentence of NY CLS § 265.20(a) (1) (f) of the New York Penal Code sets forth: “A person voluntarily surrendering such weapon, instrument, appliance or substance, provided that such surrender shall be made to the superintendent of the division of state police or a member thereof designated by such superintendent, or to the sheriff of the county in which such person resides, or in the county of Nassau or in the towns of Babylon, Brookhaven, Huntington, Islip and Smithtown in the county of Suffolk to the commissioner of police or a member of the police department thereof designated by such commissioner, or if such person resides in a city, town other than one named in this subparagraph, or village to the police commissioner or head of the police force or department thereof or to a member of the force or department designated by such commissioner or head; and provided, further, that the same shall be surrendered by such person in accordance with such terms and conditions as may be established by such superintendent, sheriff, police force or department.”This means that firearms must not be surrendered to just any governmental official. Firearms must be surrendered to the appropriate official as defined in CLS Penal § 265.20(a) (1) (f) of the New York Penal Code.Now, suppose the administrator, executor, or holder of the firearms of decedent fails to surrender the weapons within fifteen days of receipt of them as the law requires. Well, under NY CLS Penal § 265.01-b, “A person is guilty of criminal possession of a firearm when he or she: (1) possesses any firearm or; (2) lawfully possesses a firearm prior to the effective date of the chapter of the laws of two thousand thirteen which added this section subject to the registration requirements of subdivision sixteen-a of section 400.00 of this chapter and knowingly fails to register such firearm pursuant to such subdivision. Criminal possession of a firearm is a class E felony.”If a person – namely, the executor or administrator of an estate or the heir to a firearm or firearms, who comes into immediate possession of the firearm or firearms upon the death of the original owner of the firearms – fails, within fifteen days, to transfer the firearm or firearms to the appropriate official – that person is in unlawful possession of said firearm or firearms. Thus, failure to timely transfer a firearm or firearms of a decedent to the appropriate official, upon the death of the decedent – whether such failure to transfer is deliberate or inadvertent – places the possessor of the firearm or firearms in an untenable position. For that person is in felony possession of a firearm. That person is a criminal under New York law!Now, suppose a firearm or collection of firearms is in fact timely delivered to the appropriate official upon the death of the original owner. In that case NY CLS Penal § 400.05(6) says, “A firearm or other weapon which is surrendered, or is otherwise voluntarily delivered pursuant to section 265.20 of this chapter and which has not been declared a nuisance pursuant to subdivision one of this section, shall be retained by the official to whom it was delivered for a period not to exceed one year. Prior to the expiration of such time period, a person who surrenders a firearm shall have the right to arrange for the sale, or transfer, of such firearm to a dealer in firearms licensed in accordance with this chapter or for the transfer of such firearm to himself or herself provided that a license therefor has been issued in accordance with this chapter. If no lawful disposition of the firearm or other weapon is made within the time provided, the firearm or weapon concerned shall be declared a nuisance and shall be disposed of in accordance with the provisions of this section.”The last paragraph of NY CLS Penal § 400.05(6) makes clear that a firearm or other weapon will be disposed of if the party who surrendered the weapon does not arrange for the sale or transfer of it within the applicable time frame – one year from the date that the firearm or collection of firearms is delivered to the appropriate official.And, what does the expression ‘disposed of’ mean? NY CLS Penal § 400.05(2) spells that out bluntly. The Statute says, “The official to whom the weapon, instrument, appliance or substance which has subsequently been declared a nuisance pursuant to subdivision one of this section is so surrendered shall, at any time but at least once each year, destroy the same or cause it to be destroyed, or render the same or cause it to be rendered ineffective and useless for its intended purpose and harmless to human life.”The expression, 'disposed of' by an official” means 'destroyed' by that official.Now, NY CLS Penal § 400.05(1) defines ‘nuisance’ as, “Any weapon, instrument, appliance or substance specified in article two hundred sixty-five, when unlawfully possessed, manufactured, transported or disposed of, or when utilized in the commission of an offense, is hereby declared a nuisance.”We know that any firearm or weapon that is surrendered to the appropriate official by an executor or administrator of an estate or by another lawful possessor of such weapon, namely and particularly, an heir of decedent to whom a bequest of firearms has been made, in accordance with NY CLS § 265.20(a) (1) (f), is specifically not a nuisance under the applicable Statute, NY CLS Penal § 400.05(6), and therefore is not subject to summary destruction.NY CLS Penal § 265.20(a) (1) (f), provides that the officer to whom such weapon (or weapons) has been surrendered, “shall hold it and shall thereafter deliver it on the written request of such executor, administrator or other lawful possessor of such property to a named person, provided such named person is licensed to or is otherwise lawfully permitted to possess the same. If no request to deliver the property is received by such official within one year of the delivery of such property, such official shall dispose of it in accordance with the provisions of section 400.05 of this chapter.”NY CLS Penal § 400.05(2) makes abundantly clear that the official – to whom a decedent’s firearms’ collection is delivered, in accordance with NY CLS § 265.20(a) (1), namely within 15 days of a party’s possession of it – cannot summarily destroy the weapons. He is the custodian of them. The firearms are still the property of decedent’s estate. And so long as decedent’s heir to the bequest of firearms timely informs the official as to the ultimate disposition of them, namely, within one year of the date of surrender of those firearms to the official, that official, the custodian of them, is responsible for their safekeeping.This does not mean that the official to whom the weapons are surrendered will perform his or her duty. What, then, is the responsibility of the State when those firearms are prematurely damaged, lost, or destroyed, prior to the one-year time period? That issue turns on whether the official would have known that failure to preserve the firearms violated the owner heir’s clearly established statutory or constitutional rights. See, Maio vs. Kralik, 70 A.D.3d 1; 888 N.Y.S.2d 582; 2009 N.Y. App. Div. LEXIS 8062; 2009 NY Slip Op 8187.In the next installment of this series, Part 4, we will provide you with a checklist for gun owners. Given present New York law, a testator who wishes to bequeath firearms to his living heirs, must be aware of traps and snares that lurk for the unwary.Be advised: failure to consider contingencies may place both the executor of one's estate as well as one's heirs in real danger of incurring felony charges for failure to make proper disposition of firearms in strict accordance with the applicable laws.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) and Vincent L. Pacifico (Orca) All Rights Reserved.

Do New York Residents and Citizens Really Have a Private Property Right Interest in Their Guns?

Part 2: Do New York Residents and Citizens Really Have a Private Property Right Interest in Their Guns?

CAPSULE SUMMARY

In the previous installment of this multi-part series, we discussed the notion of a private property interest as existent in the U.S. Constitution, and we provided you with various legal definitions of ‘property.’ We did this so you would be able to better understand and appreciate how the New York Safe Act and related New York law operate to deprive New York residents and gun owners of their right to effectively transfer their firearms to other individuals, namely and particularly, their heirs, upon the death of the original owners of the firearms.If you wish to give your firearms to your heirs when you die, you need to become familiar with substantially more legal terminology that you will come across in New York law.In this installment, Part 2, we will accomplish two things. First, we will provide you with several more definitions of common legal terminology that appear in New York law that negatively impact a gun owner’s private property interest in his or her own firearms. Second, we will drill down into the notion ‘private property.’ You will come to appreciate that the Founders of our Republic did, in fact, respect the notion of a private property right and private property interest as reflected in the Bill of Rights, and you will also come to understand that New York law insidiously undermines one’s private property right and interest as applied to one’s own guns.

LEGAL TERMINOLOGY YOU NEED TO KNOW

Several legal terminology that you need to have an understanding of and appreciation for include: ‘testator,’ ‘will,’ ‘heir,’ ‘legatee,’ ‘bequest,’ ‘decedent,’ ‘estate,’ ‘executor,’ and ‘fiduciary.’The word, ‘testator,’ refers to “a person who makes a will; esp. a person who dies leaving a will.” A similar word, ‘testation’ refers to the “disposal of property by will.”The term, ‘will,’ – more usually referring to a written instrument – means, ‘the legal expression of an individual’s wishes about the disposition of his or her property after death; esp., a document by which a person directs his or her estate to be distributed upon death.”The term, ‘executor,’ means ‘a person named by a testator to carry out the provisions of the testator’s will.’The term, ‘fiduciary,’ means ‘a person who is required to act for the benefit of another person on all matters within the scope of their relationship; one who owes to another the duties of good faith, trust, confidence, and candor.’ So, the executor of a testator’s will owes the testator the duties of good faith, trust, confidence and candor in carrying out the provisions of the testator’s will.Suppose a person doesn’t leave a will. How is the decedent’s property to be disposed of?Every State has laws that determine how a person’s property is to be distributed in the event a person doesn’t leave a will. This process of distribution, in the absence of a will, is called intestate succession. An heir, also referred to as ‘legal heir,’ is ‘a person who, under the laws of intestacy, is entitled to receive an intestate decedent’s property.’The term, ‘decedent,’ means, simply, ‘a dead person, especially, one who has died recently.’ And the term, ‘legatee,’ is defined as ‘one who is named in a will to take personal property; one who has received a legacy or bequest.’ Think of the legatee as an heir who is specifically named in a will. The legatee is a person who takes property under the will of the testator.The term, ‘bequest,’ is ‘the act of giving property (usually personal property) by will.’ The verb form of that word, ‘bequeath,’ means, then, ‘to give property (usually personal property) by will.’In this multi-series article we will use the term ‘heir’ to refer generally to a close family relation to whom a decedent’s firearms, as personal property, go, whether by intestate succession or by the written will of the decedent testator.Finally, the term ‘estate’ means, in law, “the amount, degree, nature, and quality of a person’s interest in land or other property.”Let’s consider an example to see how these various legal expressions work.Let’s say, I am a New York resident and I have one adult son. I own and possess several firearms, many of which are extremely rare heirlooms – commemorative editions of rifles, pistols and shotguns, plated in gold and silver. Let us say that much of my wealth is tied to these firearms that, collectively, are worth several thousand dollars, perhaps tens of thousands of dollars, and that, together, they constitute a considerable dollar sum of my estate. I wish to give the entire collection to my son once I am gone. I hire an attorney to draft a will for me. I am the testator of that will. In that will, I bequeath the entire collection of firearms to my son, the legatee and legal heir of my firearms’ collection. I also choose to appoint the lawyer as my executor. As executor of my will, the lawyer has a fiduciary obligation to me is to see that my wishes are fulfilled in accordance with the terms of my will, after I am gone. The executor will have an extraordinarily difficult time executing my will because New York gun laws are extremely restrictive and complex, not at all straightforward.

THE NOTION OF ‘PRIVATE PROPERTY’ IN AMERICA

Before we tackle the problems associated with New York law that generally defeat one’s property interest in his or her firearm or collection of firearms, we need to spend a little more time on the notion of ‘private property.’

Does An American Citizen Really Have A Right In And To Private Property?

We have previously pointed to the Fifth Amendment “Takings clause” as the place where one finds a right of ownership in property. The Fifth Amendment sets forth in full: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”Now, to be clear, the Fifth Amendment doesn’t expressly assert private ownership of property in terms of a specific, expressly asserted “right” in the sense, for example, that the Second Amendment clearly speaks of “the right of the People to Keep and Bear Arms. . . .” Nonetheless, the implication is clear.The last clause of the Fifth Amendment says “. . . nor shall private property be taken for public use, without just compensation.” The expression ‘private property’ does expressly appear in the Fifth Amendment even if the right underlying it does not. Still, the right exists, even if only implied. For, if the right to own property in a personal capacity did not exist, then the “Takings Clause” of the Fifth Amendment would be meaningless. The Federal Government or a State Government would have no duty to provide a person just compensation for one’s property if a “right” in and to that property didn’t first exist. So, the right in and to private property must exist in order to make sense of a Government’s duty to provide just compensation for the taking of it.Basically, the “Takings Clause” of the Fifth Amendment says that no governmental body shall take a person’s private property for public benefit, without compensating the owner justly for it. The expression ‘just compensation’ is understood in law to mean ‘fair market value.’ Now proponents of the NY Safe Act will likely point out that the “Takings Clause” of the Fifth Amendment doesn’t apply here even if New York law does interfere with a gun owner’s desire to transfer his firearms to others. Proponents of NY Safe may argue that such interference with one’s private property – one’s firearms – doesn’t amount to a “Taking” under the Fifth Amendment at all because New York isn’t actually appropriating the firearms. Proponents of NY Safe might point out that the executor of the decedent original owner of the firearms isn’t prevented from selling the guns to a resident outside of New York or selling them to a licensed gun dealer in New York.  Still, one might reasonably respond that, to the extent a firearms’ owner isn’t able to do what he wishes with them – bequeath them to his or her heirs – the result is a constructive taking of them.Moreover, if a firearms’ owner is prevented from transferring his firearms to his or her heirs and the executor of the gun owner’s estate is compelled to sell the firearms in order to realize some monetary gain for them on behalf of the heirs, that gain is likely to be far less than the fair market value for the firearms.  A prospective buyer of the firearms would be well aware that the executor of the firearms’ owner’s estate is compelled to sell the firearms or, otherwise, the prospective buyer could certainly learn, with little effort, that the firearms must be disposed of because the heirs are ineligible under New York law to receive them.But proponents of the NY Safe Act might then argue that the State of New York isn’t taking one’s firearms because, under the Fifth Amendment, the taking of private property must be for a public benefit, and there is no public benefit associated with the firearms. There are two responses to that argument.First, since proponents of NY Safe presume that firearms are, ipso facto, dangerous instrumentalities, whose mere presence constitutes a danger to the public, the interference with one’s private property interest in them does, to the minds of proponents of NY Safe, confer a benefit on the public – namely, the removal of them from private hands. The firearms likely must either be transferred to someone outside the State or destroyed by the police, in the State.The benefit, at least to proponents of the Safe Act, however faulty their reasoning, is that public safety in general is increased to the extent that the number of firearms in private hands is decreased. The benefit to the public might be considered, then, a ‘constructive benefit’ if not an actual benefit. So, interference with one’s private property interest in firearms does amount to a taking for the public benefit. If so, then the Government is itself obligated, under the Fifth Amendment to the U.S. Constitution, to provide the owner’s heirs, the fair market value for the firearms – if New York law does not otherwise permit the owner’s heirs to receive the firearms upon the original owner’s death, pursuant to the original owner’s intent as expressed in his will and if the executor of the estate is unable, after diligent effort, to find a buyer outside the State or a licensed gun dealer inside the State who is willing to pay the executor the fair market value for them.Second, even if the interference with one’s ownership interest in firearms does not really amount to a taking under the Fifth Amendment precisely because no actual public benefit exists, still, in some instances, where private property interests are at stake, the Government’s interference with one’s private property interests may amount to a taking, notwithstanding the absence of a public benefit. The U.S. Supreme Court has held that interference with a person’s attempt to pass property to others upon death may constitute a “per se” taking. See, Hodel v. Irving, 481 U.S. 704, 716-18 (1987). If so, then, New York’s interference with a person’s desire to pass one’s firearms to one’s heirs may constitute a per se taking under the Hodel holding.The concept of ‘private property’ also appears, although tacitly,’ in the Third Amendment to the U.S. Constitution. The Third Amendment says, “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”The Third Amendment presumption is that a person owns his or her house. One’s house is, then, one’s private property. The Third Amendment makes clear that a soldier of the Federal Government shall not, in peace time, be allowed to enter or to stay in a person’s house unless the owner of the house – that is to say, the owner of that property – so allows it. During times of war, the Government can override the consent of the owner but, any overriding proviso must clearly be set forth in law.How many American citizens do you suppose are familiar with the Third Amendment to the U.S. Constitution? Probably, not many to be sure. Just imagine a circumstance, in the not too distant future, when, as economic calamity strikes this Country, and as our sacred rights and liberties become further eroded, under the guise of “National Security, the police and military demand access to an American’s home, your home. If this idea seems far-fetched, just keep in mind that it is only through the U.S. Constitution that Government in this Country is kept in check. As the mainframe of our Constitution -- the Articles and Sections and Amendments that comprise it -- becomes ignored or defeated – improbable events become likely events, and unlikely events become actual.In the next installment of this multi-series Article We will show you that, under present New York law, a New York resident and citizen of the United States does not have absolute control over his or her own firearms. That means that one’s private property interest is not preserved. If so, that is in contravention to the U.S. Constitution and in contravention to the New York State Constitution as well. We will begin to look at actual New York Statutes. We will list them, describe them, and explain how they operate to defeat one’s private property interest in one’s own firearms as they interfere with one’s right to make bequests of firearms to one’s heirs.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) and Vincent L. Pacifico (Orca) All Rights Reserved.

OPEN LETTER TO THE NEW YORK CONGRESSIONAL DELEGATION IN WASHINGTON, D.C.

OPEN LETTER TO THE NEW YORK CONGRESSIONAL DELEGATION

ARBALEST GROUP'S OPEN LETTER TO EACH AND EVERY MEMBER OF THE NEW YORK CONGRESSIONAL DELEGATION, IN WASHINGTON, D.C.

THURSDAY, FEBRUARY 12, 2015

POSTED BY THE FOUNDERS OF ARBALEST GROUP, LLC., CREATORS OF THE ARBALEST QUARREL WEBSITE

_________________________________________________February 9, 2015The Honorable_______________________United States Senate/United States House of Representatives_______________, Washington, D.C._______Dear Senator/Congressman/Congresswoman:A major flaw exists in the New York Safe Act and in the Penal Code of New York that has not been previously acknowledged and which requires immediate attention. This flaw involves bequests of firearms. Present New York law undermines a person’s fundamental right of ownership in his own private property because it defeats the ability of a New York gun owner and testator to effectively transfer firearms to the testator’s New York resident heirs.We have written to each member of the New York State Legislature, and to the New York Governor, Andrew M. Cuomo, and to officials within the Governor’s administration, bringing this critical matter to their attention.We are urging the New York Legislature to amend New York Law to allow bequests of firearms to be honored and fulfilled in strict accordance with the wishes of a testator.Only then will the fundamental right in and to one’s private property be preserved. We ask for your full support in this endeavor. Thank you very much for your time and consideration.Sincerely,Stephen L. D’AndrilliPresident, Arbalest Group, LLC.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) and Vincent L. Pacifico (Orca) All Rights Reserved. 

PRIVATE PROPERTY RIGHTS AND THE SECOND AMENDMENT

THE ARBALEST QUARREL'S RATIONALE FOR WRITING TO THE NEW YORK STATE LEGISLATURE, TO THE GOVERNOR AND LIEUTENANT GOVERNOR OF THE STATE OF NEW YORK, AND TO THE NEW YORK ATTORNEY GENERAL

The New York Safe Act, signed into law by New York Governor, Andrew M. Cuomo, on January 15, 2013, is poorly drafted legislation. It was authorized without due process and in defiance of New York’s own State Constitution.The Safe Act is the Government’s model for undercutting the Second Amendment. The public knows this. But, what is not understood by most is that the Safe Act is destructive of private property rights too. The antigun establishment argues that the right to keep and bear arms is a collective right, not an individual right. But, in the seminal case, District of Columbia vs. Heller, 554 U.S. 570 (2008), the U.S. Supreme Court made clear that the right to keep and bear arms is an individual right, not merely a collective right. A person need not be a member of a State militia or other governmental military force to exercise the right to keep and bear arms.Moreover, an implication can be drawn from the Heller decision. Since an American citizen has the right, as an individual, to keep and bear arms, irrespective of membership in a State militia, this individual right to keep and bear arms presumes the citizen’s right to own the firearms he bears and keeps. Private property ownership is basic to a free America.The right of an American citizen to own property – to have exclusive and absolute ownership of property – is as fundamental a right to an American as the right to speak openly and freely under the First Amendment or to keep and bear arms under the Second.But, under the Safe Act a resident’s right of ownership in his own firearms is strained and constrained. New York law severely restricts a New York resident’s right to transfer ownership in his or her firearms to others upon the person’s death.New York residents may have one firearm worth a few hundred dollars or they may have collections of rare and expensive firearms worth many hundreds of thousands of dollars – perhaps millions of dollars. In either case, New York law restrains one’s ability to transfer firearms during one’s lifetime and restricts one’s ability to transfer firearms to one’s heirs upon the firearms’ owner’s death.The dollar value of a rare and expensive firearms’ collection may be severely compromised upon the death of a New York resident gun owner because New York law restricts transfers of firearms to heirs who happen to live in New York.In particular the New York Safe Act absolutely forbids the transfer of any firearm to an heir that is a Safe Act registered weapon unless that heir happens also to be a licensed New York gun dealer or an authorized police official.What does this mean for an individual who may happen to own a very rare and expensive firearm that happens to be a New York Safe Act registered weapon. Let’s consider an example.Suppose you have a gold-plated commemorative firearm that has a fair market value of $50,000.00, and suppose you wish to bequeath that firearm to your adult son or daughter upon your death. Suppose, further, that this gold-plated commemorative firearm is classified as a New York Safe Act registered weapon. Can you transfer that firearm – your personal property – to your adult son or daughter?Well, certainly nothing in New York law prevents you from bequeathing that firearm to your next of kin. But, the important question is whether your son or daughter can keep and enjoy that personal property, just as you had. And, there’s the rub.Your adult son or daughter can keep the firearm for up to 15 days. After that, the firearm must be turned over to the appropriate police official. At that point your son or daughter has up to one year to transfer or sell the firearm either to a licensed New York gun dealer or to a person or entity outside the State. If your adult heir fails to tell the police official how the Safe Act registered weapon is to be disposed of, the police official will destroy that firearm – a valuable collectible – one year from the date he or she obtains custody of it. There is no recourse. There is no remedy. There is no redress.Transference of firearms to a decedent’s rightful heirs creates an undue burden on the estate as the heirs may be ineligible to receive the firearms under the Safe Act. Thus, the Safe Act operates as an unconstitutional “taking” of one’s firearm in violation of the “Takings Clause” of the Fifth Amendment to the U.S. Constitution. This cannot be tolerated. This contempt for our Bill of Rights cannot be condoned.The Arbalest Quarrel has recently written to every member of the New York State Senate and Assembly, in Albany, New York, and to the Governor and Lieutenant Governor of the New York and to the Attorney General for New York, requesting each of them to use his or her authority to amend New York law so that a New York resident and citizen of the United States may exercise the fundamental right of enjoyment in his or her private property – that such right may be preserved, consistent with the intent of the United States Constitution, the New York State Constitution, and the precepts of a capitalist society. The Arbalest Quarrel has also notified the New York Delegation in Washington D.C. of its action as well.If the notion of private property is to mean anything concrete in this Country, then no governmental body, State or Federal, should be allowed to undermine an American’s exclusive power over his or her private property. That means American citizens and law-abiding gun owners, including those citizens and gun owners who are residents of New York, should be able to transfer their firearms to their heirs, free of governmental interference and constraint. That is why New York law must be changed. It must comply with the U.S. Constitution and the New York State Constitution, and with principles of a free market economy.The fundamental right of ownership and power over one’s private property must not be diminished by political machination. The fundamental right of enjoyment in one’s private property, as protected in the “Takings Clause” of the Fifth Amendment, is as basic and as important and as fundamental a right to an American as any other right set forth in the Bill of Rights.We are posting our letter on the Arbalest Quarrel website. It appears as a separate blog post. We shall keep our readers apprised of the results: who responds, and who fails to respond to our letter; and what each respondent has said in reply to our letter.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) and Vincent L. Pacifico (Orca) All Rights Reserved.

HOW DID THE NEW YORK SAFE ACT BECOME LAW? LET’S ASK THE “THREE MEN IN A ROOM?

A new scandal has hit Albany, New York – a big one!  The arrest of the powerful New York State Assembly Speaker Sheldon Silver, by the FBI, on Friday, January 23, 2015, has sent shock waves across the State, most likely affecting Governor Andrew Cuomo’s Administration. The arrest of Sheldon Silver on corruption charges has less to do with Silver than it does for the way legislation affecting the rights and liberties of over 20 million New Yorkers has been and continues to be compromised by an elite group of elected officials – the “three men in a room” – Governor Cuomo, Assembly Speaker Silver, and the State Senate leader – whom the Governor has jokingly referred to as “the three amigos.” An overview of the Complaint filed in federal court, on January 21, 2015, bears this point out. It provides a disturbing picture of how business has been conducted in Albany for many, many years. The Complaint says in pertinent part: “Sheldon Silver, the defendant, has engaged in and continues to engage in a secret and corrupt scheme to deprive the citizens of the State of New York of his honest services, and to extort individuals and entities under color of official right, as an elected legislator and as Speaker of the New York State Assembly.”The U.S. Attorney for the Southern District of New York’s filing of felony corruption charges against Silver may cause Governor Cuomo to distance himself from the Assembly Speaker. Cuomo’s own actions cast a bright and disturbing light on Cuomo as well.On July 2, 2013 Cuomo created the Moreland Commission. Its purpose was twofold: to root out the very corruption the Complaint alleges Silver must now answer for and provide better governance for the residents of the State of New York. The Moreland Commission had the potential to be a good thing for New York State residents and it appears to be a bad thing for Silver.U.S. Attorney Preet Bharara, who filed the criminal case against Sheldon Silver on January 21, 2015, had testified before the Moreland Commission more than one year earlier. On September 17, 2013, Bharara pledged “the cooperation and assistance of [his] office with the Commission’s vitally important work.” He added, “Fighting public corruption has been a top priority for [Bharara] for a long while. . . .”Many of New York’s elite Legislators railed against the Commission and sued to have it disbanded. In their own filing, those Legislators argued the Commission’s actions trampled the Legislators’ Constitutional Rights. Imagine that.Less than one year after forming the Commission, Cuomo said, on March 29, 2014, he was disbanding it. On April 3, 2014 the U.S. Attorney for the Southern District sent a letter to the Commission. In it Bharara said he was taking possession of the Commission’s case files. He questioned whether the Governor was abandoning his commitment to fight public corruption. Cuomo, for his part, was petulant. According to a story published in Crain’s Insider on April 24, 2014, Cuomo told Crain’s: “‘It’s not a legal question. It’s my commission. My subpoena power, my Moreland Commission. I can appoint it, I can disband it. I appoint you, I can un-appoint you tomorrow.’” His power seems omnipotent.The concentration of power in New York has been, for many years, in the hands of a Triarchy, reminiscent of the First and Second Triumvirates that ruled ancient Rome. This modern Triarchy consists of the Governor, the Assembly Speaker, and the State Senate Leader. It has worked in secret, under cloak of darkness, without accountability. These three individuals seem to answer only to themselves as if they do not have to account to the public and do not have to account for their actions.Did these “three amigos” engineer the New York Safe Act and thrust it down the throats of New York residents and gun owners sans debate? It certainly seems so.News accounts report that Silver has temporarily stepped down as Assembly Speaker. However, in light of the serious criminal corruption charges the U.S. Attorney has brought against the Assembly Speaker, we question the wisdom of allowing Silver to continue to serve in the New York Assembly at all during the pendency of the case against him.There is another pressing issue that must be addressed. Since the propriety of the actions of “the three amigos” is in question, we feel the New York public has the right – in fact, the duty – to insist on a probe of how the New York Safe Act was drafted; how it was enacted; and, to what extent, if any, the creators of it knew or had good reason to know that enactment of the Act might undermine New York residents’ Constitutional Rights.If corruption is uncovered any step of the way, then the Safe Act should be repealed in its entirety.Despite the fact that some New York residents exhibit animosity toward guns and gun possession, elected officials, including and especially New York Legislators and the Governor, must operate with transparency and fairness on behalf of their constituencies.Any legislation – especially far-reaching legislation, such as the New York Safe Act, that negatively impacts not only one’s Second Amendment Right to keep and bear arms, but one’s Fifth Amendment private property interest in those firearms, and one’s Fourteenth Amendment Due Process and Equal Protection Rights – must be discussed in the light of day, before enactment. The New York Safe Act wasn’t enacted protecting these Rights. The impetus for it and passage of it all took place in secretive session, out of the public view. Why? The “three amigos” must explain their actions.How was the New York Safe Act pushed through the Legislature so quickly? How were these individuals able to get away with this? Did the “three amigos” honestly think they were acting on behalf of the New York public for the benefit of the public, as the mainstream media portrayed them? Or were they merely furthering a private agenda, using the power of their respective Office to systematically deprive millions of New York residents and gun owners of their Rights and Liberties under both the U.S. Constitution and the New York State Constitution? Did political ambitions motivate these individuals? If so, how? These are serious questions. And they deserve serious consideration. The public demands answers. The public demands accountability. New York residents and citizens must speak up. The damage to the Public’s Constitutional Rights and Liberties must be undone. The time to act is now.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour) and Stephen L. D’Andrilli (Publius) All Rights Reserved.

GUN RIGHTS ARE NOT SIMPLY EMBODIED IN THE SACRED SECOND AMENDMENT. AMERICANS HAVE A FUNDAMENTAL RIGHT TO THE PRIVATE OWNERSHIP OF GUNS TOO.

GUN RIGHTS ACTUALLY TRANSCEND THE SECOND AMENDMENT; AN AMERICAN’S FIREARMS ARE HIS SACRED PRIVATE PROPERTY. AND ONE’S RIGHT IN ONE’S SACRED PRIVATE PROPERTY SHALL NOT BE INFRINGED EITHER.

Gun collections are private property. This may seem obvious to you. After all the concept of a private property right is deeply embedded in American culture. It is deeply embedded in America’s economic traditions. And it is deeply embedded in the hearts and minds of Americans. The right to own and possess private property is as fundamental a right in this Country as is the freedom of speech under the First Amendment to the United States Constitution and as the freedom to keep and bear arms is under the Second Amendment.Unfortunately, New York law doesn't really treat guns as private property. But, then, New York law views gun possession as a privilege rather than as an inalienable right. So, it should come as no surprise that guns are treated less as private property and more like rental property. We say this because strict limitations are placed on New York residents' ability to transfer their firearms, especially apropos of transfers  of guns or gun collections to heirs. If one's right of enjoyment in and to one's private property were truly honored as a right, then no express or tacit limitation would be placed on one's full enjoyment of that private property. That enjoyment includes the right to dispose of the private property as one wishes, to those whom one wishes to give that property, assuming one wishes to dispose of his or her firearms at all. A person should not be required to dispose of his firearms or firearms' collection if those firearms or collection of firearms are truly private property. Nonetheless, New York Statute tells a person not only when or that he or she must dispose of a gun or collection of guns, but also how a disposal of guns or of an entire gun collection must take place. And the language of gun transfers is laid out not at all succinctly, clearly, and plainly, as one might reasonably expect, but in lengthy, agonizing, and often incoherent detail.

THE RIGHT TO KEEP AND BEAR ARMS ENTAILS THE RIGHT TO OWN FIREARMS AS ONE'S SOLE AND EXCLUSIVE PRIVATE PROPERTY.

The concept of private property rights underlies and precedes the imperative of the Second Amendment: “the right of the people to keep and bear arms shall not be infringed.” Further, the fundamental right of Americans to own, possess, and enjoy their private property is embraced in the language of the Takings Clause of the Fifth Amendment to the United States Constitution, as specifically applied to the States under the Fourteenth Amendment to the U.S. Constitution. Further, the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution secure for American gun owners the right to enjoy the liberties the Founders of our Republic intended for them as for all Americans. Present New York law denigrates the rights and protections and liberties of New York gun owners.Many New York residents have firearms’ collections worth many tens if not hundreds of thousands of dollars – perhaps millions of dollars. The fair market value of these firearms’ collections is placed in jeopardy by specific language of the NY Safe Act, and in the language of the Penal Code of New York, and, by implication, in other Rules and Regulations of New York. In that regard it is not sound to argue that New York law provides firearms owners with mechanisms through which they can freely transfer, or sell, or otherwise dispose of their firearms to appropriate parties within the State or outside it. For the language of New York law is coercive. New York law often requires a gun owner to sell, transfer, or dispose of a particular gun or an entire gun collection when he doesn’t want to and prohibits him from bequeathing his gun collection to those whom he does want to bequeath his gun collection to. And he obtains little or no monetary compensation for that gun collection. Such coercion is antithetical to free market practices and turns the very notion of a free market on its head.Oddly, Governor Cuomo doesn’t address how a property interest in a firearms’ collection might be secured. We know this to be true as we have checked out the Governor’s website. You can check it out for yourself. This is the link: http://programs.governor.ny.gov/nysafeact/gun-owners.The Governor’s website provides absolutely no information or guidance for New York gun owners who seek to bequeath a gun collection to their next of kin. Doesn’t Governor Cuomo believe this matter to be important? If that is the case, clearly, tens of thousands of law-abiding New York gun owners would disagree with the Governor. They believe this to be a matter of utmost importance. Many of our readers have expressed considerable bewilderment over the matter of transferring gun collections to their heirs, and they have expressed substantial confusion as to the specific manner of transferring gun collections to their heirs.The testator owner of an expensive gun collection who wishes to bequeath a gun collection to his heirs should not be subject to impediments. But he is. New York law takes his expensive gun collection away from him. It takes his private property away from him without justly compensating him for it. And it deprives the New York gun owner of his expensive firearms collection, his private property, in complete derogation of the precepts laid out in the United States Constitution.In fact the taking of a New York resident’s gun collection without just compensation is not only in contradistinction to the United States Constitution; such taking is in derogation of the New York State Constitution, too.NY CLS Const Art I, § 7(a) says, “Private property shall not be taken for public use without just compensation.” A person’s gun collection is his private property and the State essentially takes it from the owner and prospective heirs without just compensation. And, what public use is attendant to this “taking” of the firearms’ collection? Is the public use merely that a police department may, unbeknownst to the gun owner’s heirs, and, in fact, contrary even to the laws of New York, make use of the gun collection sans compensation to the owner’s heirs? Is the public use merely and incoherently that some of the firearms or the entirety of it will be destroyed by the police official and, so, the decedent’s heirs wind up with zero compensation for the firearms? The taking of private property without just compensation is also inconsistent with NY CLS Const Art I, § 11 which sets forth in pertinent part, “No person shall be denied the equal protection of the laws of this state or any subdivision thereof. By failing to safeguard the monetary value of a New York resident’s gun collection, through the taking of it without just compensation, New York clearly and categorically denies to gun owners the equal protection of the laws to which they are entitled.The Bottom line:New York Statute altogether ignores the precepts implicit in the United States Constitution and in New York’s own State Constitution. New York’s governments operate in complete derogation of and, in fact, in unconscionable defiance to the dictates of both. Whether New York residents own firearms or not, they must wake up to the monstrous destruction of sacred rights and liberties, lest they lose all rights and liberties. [separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour) and Stephen L. D’Andrilli (Publius) All Rights Reserved.

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 9x19” 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 9x19” is a semiautomatic. Is “Glock 17 9x19” 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 9x9” 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 9x19” has none of the “assault weapon” features. So, a stock “Glock 17 9x19” likely isn’t an assault weapon. But, it does have a detachable magazine. And the “Glock 17 9x19” 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 9x19” 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 9x19” 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 9x19” 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.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2014 Roger J Katz (Towne Criour) All Rights Reserved.

NEW YORK GUN OWNERS TAKE NOTE: THIS IS THE FINAL DAY TO REGISTER YOUR “ASSAULT WEAPONS” UNDER NY SAFE

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

Today is the final day to register “assault weapons” under NY SAFE. Some New York gun owners have decided not to register their “assault weapons.” We strongly advise against this course of action. Why? Our interest is to keep your guns in your hands. Failure to register “assault weapons” does not serve that end. NY SAFE says: “if you knowingly fail to timely register such weapon or surrender it, you shall be guilty of a Class A Misdemeanor.” What does that mean? NY SAFE suggests you’ll likely lose your “assault weapons.” But, is that all you’ll lose? In our March 19, 2014 post we said you can lose much more for failure to timely register. You’ll likely lose your pistol license and long arm permit. That means you’ll lose all your firearms if you knowingly fail to register your assault weapons.  We had warned you then and we are alerting you now to the dangers you face if you decide not to register your "assault weapons."Ignoring the requirements of NY SAFE is not the way to combat it. We believe the best way to deal with NY SAFE is to remove the politicians who fought for and who support it. Once they’re removed from Office, the politicians who represent your interests and who actively fight to preserve our sacred “Bill of Rights” will repeal NY SAFE.Understand: by refusing to register your “assault weapon” you give Governor Cuomo and the other antigun zealots a reason to revoke your pistol license and long arm permit and to confiscate your guns – all of them. Failure to register your “assault weapon” is precisely what they want. They want a reason to go after your weapons. Don’t give them what they want![separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"]Copyright © 2014 Roger J Katz (Towne Criour) All Rights Reserved.

NY SAFE: "ASSAULT WEAPON" DEFINITIONS

“What The Law-Abiding New York Firearms’ OwnerMust 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.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"]

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

NY SAFE: LOOKING AT THE "ASSAULT WEAPON"

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

CAPSULE SUMMARY

In this post I continue discussion about "assault weapons." This is important. The notion of 'assault weapon' is central to NYSAFE. I then set up a model for examining firearms under NYSAFE, consisting of six steps. This model will aid you when examining your firearms. I wish to give you the means to assess your firearms: to distinguish "assault weapons" from non-assault weapons.

WHAT DOES THE NYSAFE SAY ABOUT THE EXPRESSION, ‘ASSAULT WEAPON?’

NYSAFE has much to say about the words ‘assault weapon.’ You might have heard this: assault weapons are rifles or pistols or shotguns that have certain especial features. NYSAFE calls them, ‘assault weapons.’ That’s the general description. It’s essentially correct. But it’s simplistic. Conversely, a weapon isn’t “assault weapon” if it isn’t a rifle, pistol or shotgun. We know, then, a black powder musket isn’t an assault weapon because it isn’t a rifle, pistol, or shotgun. But how many firearms owners have black powder muskets as their sole firearm? Not many, I am sure. But, suppose a weapon is a rifle, pistol or shotgun. We need guidance to decide if it is also an assault weapon.

DOES THE “ASSAULT WEAPON” EXIST?

No. The “assault weapon” does not exist. It’s a fiction. But, the NYSAFE Act talks about assault weapons. The “assault weapon” is a fiction created for firearms confiscation. The NYSAFE calls many firearms “assault weapons” that were not “assault weapons” under previous New York antigun laws. Did such weapons suddenly evolve into “assault weapons?” No! Were they “assault weapons” all along? Of course not! But the Act says New York residents can no longer lawfully buy such weapons. The law bans them. New York residents who lawfully had firearms NYSAFE now face new laws if they wish to keep or transfer those weapons. So, the expression ‘assault weapon’ is synonymous with ‘banned firearm.’ The expression ‘assault weapon’ means ‘banned firearm.’ Nothing more.

BUT, ISN’T AN “ASSAULT WEAPON” A FIREARM THAT HAS MILITARY WEAPON FEATURES?

No. In New York a firearm is an “assault weapon” only if NYSAFE says so. If military features alone make a firearm an "assault weapon," then all military weapons are "assault weapons." Military weapons are not typically available to civilians. If the NYSAFE Act says a feature of a weapon is an “assault weapon feature,” then accept it. The NYSAFE Act might have said a handgun with a revolving cylinder is an “assault weapon” feature. The nature of the firearm doesn’t change. But its relation to you, because you are a resident of New York, does change.Again, a firearm is an “assault weapon” only if NYSAFE says so. That doesn’t mean “assault weapons” exist. It only means that NYSAFE treats firearms in different ways. The NYSAFE Act says that many weapons are "assault weapons." Any weapon is an "assault weapon" if NYSAFE says so. The NYSAFE Act may say all handguns are assault weapons. Would that mean all handguns are real “assault weapons?” No! Would that mean all handguns are "assault weapons" in New York? Yes! They are "assault weapons" if NYSAFE treats them as "assault weapons." Does this mean all handguns are, by nature, “assault weapons?” No! That's ridiculous.Calling a firearm an “assault weapon” says nothing about the firearm’s technical features. But calling a weapon an "assault weapon" does have meaning. An "assault weapon" is a "banned weapon." An “assault weapon” equals a “banned weapon.” The task of gun confiscation is, then, easy. Call a firearm an "assault weapon." Once named an 'assault weapon,' ban it.

Is a fully automatic weapon or selective fire weapon an “assault weapon” under NYSAFE?

You might think a fully automatic or selective fire weapon is an “assault weapon,” under NYSAFE. You would be wrong. The NYSAFE Act says nothing about fully automatic fire weapons or selective fire weapons. Federal law governs ownership responsibilities of full auto only firearms or selective fire weapons. The NYSAFE Act says nothing about them. The NYSAFE Act only talks about “assault weapons” as defined in NYSAFE. NYSAFE says nothing about military assault rifles and military submachine guns. Military assault rifles and military submachine guns are not “assault weapons” under the NYSAFE. You have no duty to register them as “assault weapons.” So, do not treat the “military assault rifle” or the “military submachine gun” as if it is an “assault weapon.” It isn't. “Military assault rifles” and “military submachine guns” have nothing to do with “assault weapons” as defined in the NYSAFE Act. Fully automatic and selective fire military weapons do not fall under the scope of the NYSAFE Act.

A SOLID TECHNICAL KNOWLEDGE OF FIREARMS WILL NOT HELP IN UNDERSTANDING NYSAFE.

If you have a firm technical grasp of firearms, the NYSAFE Act can trip you up and throw you off. Avoid thinking about “military assault rifles” or “military submachine guns” from the get-go. Think only about “assault weapons” as mentioned in NYSAFE. I have harped on this often will continue to do so as I discuss the notion of ‘assault weapon’ in NYSAFE.

EXAMINING YOUR FIREARMS: SIX STEPS

I have set down six steps to help you when deciding which firearms, if any, are “assault weapons” under NYSAFE. The first step: inventory your firearms. The second step: learn the categories of 'assault weapon.' The third step: learn the definition of ‘assault weapon’ for each category of weapon. The fourth step: decide what category each firearm falls under. The fifth step: apply the correct definition to each firearm. The sixth step: isolate the “assault weapons” from the “ordinary” weapons. Beware and be aware: Assault weapon features vary by category of weapon. Shared features might not exist across categories.

GOING FORWARD

NYSAFE decides how we should examine firearms in New York. Governor Cuomo's simplistic NYSAFE website has limited usefulness. Keep that in mind.Do not assume anything about NYSAFE. NYSAFE is not easy to understand. Either by design or clumsiness, the language of NYSAFE isn’t straightforward. And do not look for simple explanations. You'll fall into traps if you do. NYSAFE has plenty of them.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"]Copyright © 2014 Roger J Katz (Towne Criour) All Rights Reserved.

NYSAFE: Cuomo's Website Misleads Public

What the Law-Abiding New York Firearms' Owner Must Know about Governor Andrew Cuomo's NYSAFE Act

Summary

This post continues my discussion of NYSAFE. Several more will follow. We will look at Governor Cuomo’s NYSAFE website. That site too talks about NYSAFE. The Governor hails his NYSAFE site as a “one-stop resource” for information about NYSAFE. But is it? The Governor claims NYSAFE preserves the Second Amendment. But does it? The Governor says NYSAFE promotes “a safer New York.” But can it? We will examine the Governor’s assertions. We shall see if those assertions hold up to scrutiny. In forthcoming posts, we will take a close look at the words, ‘assault weapon.’ We will explore the origins of the words. I will show the notion is an invention. The notion of ‘assault weapon’ does not describe any firearm. Rather, antigun groups and their allied politicians in Congress and in State Legislatures across the Country created the idea to ban firearms. I will also explore the origin of the words ‘assault rifle.’ The expression ‘assault weapon’ is often, wrongly, tied to the words ‘assault rifle.’ The words aren’t synonymous. They do not refer to the same weapons. They do not refer to the same kinds of weapons. And I will provide you with some “tips.” These tips will help you to understand NYSAFE as we bore into it. My goal is to build a model for examining firearms. Once completed, you can test any firearm. You can determine, with reasonable accuracy if the firearm is an “assault weapon” under NYSAFE. We will look closely at the definitions of ‘assault weapon’ and ‘detachable magazine.’ We will go over several Sections of NYSAFE you must know. Let’s begin.

A Look At Governor Cuomo’s NYSAFE Website.

In a previous post I gave you some background on the NYSAFE Act and I gave you the web address to Governor Cuomo’s site. If you missed it CLICK HERE!I certainly don’t cite the Governor’s NYSAFE website to praise it. And, I don’t cite it to amuse you. After all the goal of NYSAFE is to separate you from your firearms. That’s neither praiseworthy nor amusing. I cite it for two reasons. The first should be immediately obvious. The second will become obvious through this and subsequent posts. As for the former, I point out the hypocrisy of the Governor’s position. NYSAFE is inconsistent with the right to keep and bear arms guaranteed by the Second Amendment to the U.S. Constitution. Governor Cuomo claims otherwise. As for the latter, NYSAFE isn’t easy to understand. The Governor suggests it is. His treatment of NYSAFE suggests there’s nothing to it. We shall see.

NYSAFE Weakens the Second Amendment.

NYSAFE is antithetical to the import of the Second Amendment. NYSAFE does not strengthen the Second Amendment to the United States Constitution. And NYSAFE does nothing to preserve it. Nor is NYSAFE neutral on it. NYSAFE weakens the Second Amendment. And NYSAFE does so in a major way. That’s its purpose. That’s what it does. That’s what the drafters of it wanted.  That's what is was designed to do. Make no mistake about it.Both the Governor and the drafters of NYSAFE detest firearms. And, subject to very narrow exceptions, they do not wish New York residents to possess them.So, is the Governor’s NYSAFE site a grand deception? I am not saying it is. I don’t know. But it may very well be. Let me explain.The Governor’s NYSAFE website oversimplifies the NYSAFE Act. And the site conveys dangerously misleading or incomplete information.Why do I say this? I’ll give you an example. Consider the “revolving cylinder shotgun.” Is this an “assault weapon” under NYSAFE? The answer is, “yes.” And, the Governor’s NYSAFE website doesn’t tell you it isn’t. But, the Governor’s website tells you a “revolving cylinder shotgun” is an “assault weapon” for the wrong reason. The analysis is poor and misstates NYSAFE!I’ll demonstrate. Go to the site. Once there, click on “Gun Owners.” Then click on the link that reads: “I am not sure if the gun I own is an assault weapon. How do I find out?” A dropdown menu will appear. Click on “shotguns.” Then click on “Banned Features.” A PDF document will load. Once the document loads, you will see this: “a shotgun requires registration when it is semiautomatic and has one of the following characteristics: . . .” Scroll down until you see a graphic of the Armsel Striker 12-guage shotgun. The Governor’s site says this gun has a banned feature, namely, a “second handgrip.” Is the Armsel Striker an assault weapon under NYSAFE? Yes. But the Governor’s site says the Armsel Striker shotgun is an assault weapon for the wrong reason. The Governor’s site says the “Armsel Striker 12-guage shotgun is an assault weapon under NYSAFE because it’s semiautomatic and has a banned feature. That isn’t true. First, the Armsel Striker shotgun isn’t a semiautomatic. It operates through a revolving cylinder. Second, the Armsel Striker shotgun does have a "banned feature" but, since the Armsel Striker isn’t a semiautomatic, it cannot be an assault weapon under the definition the Governor’s NYSAFE website gives. The "banned feature" criterion only applies to a shotgun that is a semiautomatic in operation. So,  if a shotgun isn't a semiautomatic, then the "banned feature" criterion is irrelevant.  The shotgun cannot be an "assault weapon." So, under the definition of shotguns that are 'assault weapons,' the Armsel Striker 12-guage fails the test.  In fact, the Armsel Striker shotgun might have several "assault weapon characteristics," but, since the shotgun isn’t a semiautomatic, it isn’t an assault weapon under that definition.  Why is the definition important? Because the definition is codified in New York Law. NYSAFE lays out several definitions for 'assault weapon.' A firearm isn't an "assault weapon" unless it meets the definition as written.Now, NYSAFE does specifically say revolving cylinder shotguns are assault weapons. Section 37(D) of NYSAFE classifies revolving cylinder shotguns as assault weapons. So, since the Armsel Striker revolving cylinder shotgun is an "assault weapon" under NYSAFE, am I creating unnecessary ‘fuss?’” The answer is, “no.”Consider: if Section 37(D) of NYSAFE didn’t exist, the Armsel Striker and all other revolving cylinder shotguns wouldn’t be assault weapons under NYSAFE. Still, the Governor's NYSAFE website would tell you they are assault weapons. The content of the Governor’s NYSAFE website is haphazardly written. The site dangerously oversimplifies the definitional scheme of NYSAFE. In so doing, the Governor’s NYSAFE site gives the visitor bad advice. That doesn’t seem to concern the Governor. But it should concern you. You should know what NYSAFE actually says, not what the Governor’s site simply wants you to believe. The Governor’s site also suggests NYSAFE is simple to understand. It isn’t. The Governor's NYSAFE website gives the visitor simplistic advice. Simplistic advice is bad advice. Errors in judgment occur. Your error in judgment doesn't pose a problem for Governor Cuomo or for the drafters of NYSAFE. But it does pose a problem for you, the gun owner. If you rely on bad advice, you may suffer irreparable harm. You may lose your pistol license and long arm permit. If you lose those, you lose your firearms. And you may face misdemeanor or even felony charges. If convicted, you won’t be able to possess a firearm lawfully in New York. And, quite likely, you won’t be able to possess a firearm lawfully in any other State. Would the Governor and the drafters of NYSAFE lose sleep if tens of thousands of New York residents lost their firearms for failure to appreciate the complexity of NYSAFE by relying on bad advice?  Not likely.

The Governor and New York State Legislature are Constrained by the Second Amendment.

The Governor and the New York State Legislature cannot ban firearms outright. They are constrained by the Second Amendment from doing so.  They are also constrained by the U.S. Supreme Court's interpretation of the Second Amendment in the 2008 case District of Columbia vs. Heller.  NYSAFE conflicts with both the Second Amendment and Heller. That doesn't bother Governor Cuomo and the drafters of NYSAFE. We can therefore understand, if not respect, the Governor’s reluctance to clarify ambiguities and vagueness inherent in NYSAFE. The evident reluctance of the Governor to deal effectively with the complexities inherent in the NYSAFE Act, on his site, serves to benefit those who wish to disarm New York residents. Contrariwise, the evident reluctance of the Governor to deal effectively with the complexities inherent in NYSAFE does not benefit those who wish to keep their firearms – you. These observations are consistent with the purpose of NYSAFE. Otherwise, it wouldn’t exist. And it shouldn’t exist. After all, prior to enactment of NYSAFE, New York already had among the strictest firearms laws in the Country. So, why do New York residents need more of them? And we know the Governor has a personal distaste for firearms. Given this distaste, he’s reluctant to understand the thing he has a bias against. So, too, the failure of New York Legislators to draft coherent firearms laws is due, in part, to a failure to understand their subject matter. The drafters of NYSAFE do not understand the function of and limitations inherent in any particular firearm. And, of course, each firearm does embrace and exhibit particular strengths and weaknesses.

What is Missing from NYSAFE?

My question does not carry the implication NYSAFE should exist. For clearly, NYSAFE should not exist. But, for any legislation, the public has a right to know its meaning. The drafters of the NYSAFE Act failed to draft a clear, concise, cogent, coherent, cohesive, and consistent piece of legislation -- the “6 c’s” of good legislative draftsmanship. These are missing from NYSAFE. But this does not concern the drafters of it. There may be a subtle motive behind the drafters’ failure to draft clear, concise, cogent, coherent, cohesive, and consistent firearms legislation. This may be due, in part, to the failure of the drafters of NYSAFE to comprehend the technical attributes of particular firearms. That doesn't bother the drafters of NYSAFE, though. Their passion isn't firearms. They don't have a desire to understand them. They simply want to ban them.  In the alternative they want to regulate them. Eventually, they wish to regulate them out of existence.  So, they reason: if NYSAFE is ambiguous and vague and overly complex, so much the better. After all, what better motive exists to draft ambiguous and vague firearms laws than the motive to confound the firearms' wielding public. If confused, those who possess firearms will lose them. That's the endgame. That's what the drafters of NYSAFE want.  That's apparently what Governor Cuomo wants too.I intend to explore the nuances of the NYSAFE Act. The Governor obviously does not. Through comparison and contrast between the words conveyed on the Arbalest Quarrel website and the words conveyed on the Governor’s NYSAFE website, you will see NYSAFE is not as easy to follow as the Governor's NYSAFE site suggests. But, any attempt to make a difficult job seemingly easy – when it clearly is not – does not serve the New York resident’s best interests. Such serves only to shortchange the New York resident. The resident's concerns remain unanswered and unresolved. The NYSAFE Act is a tangled mess of laws. NYSAFE is codified in the Consolidated Laws of New York. The Governor refers to his NYSAFE website as a “one-stop resource.” The assertion borders on conceit. And inconsistencies abound.The Governor’s NYSAFE website is eye-catching. But glitz is empty. Extravagant display does not replace accurate and detailed information. And engaging graphics do not replace incisive and decisive and comprehensive analysis. Fanfare can attract but also ensnare and trap. NYSAFE is not straightforward and simple to understand but the Governor suggests it is.On the home page of his NYSAFE website the Governor also boasts: “The SAFE Act “. . . imposes the toughest ASSAULT WEAPONS’ ban in the Country.” Yet in the very next line, the Governor proclaims oddly and inconsistently: “. . . this new law preserves and protects your right to buy, sell, keep, or use your guns.” And, on a subordinate web page on the same website, the Governor reiterates, “the SAFE Act protects law-abiding citizens’ right to bear arms and does not restrict New Yorkers’ ability to buy, sell, keep or use their guns.” How does taking away a citizen’s firearms protect the citizen’s right to keep and bear arms? We will explore this question as we look at the NYSAFE Act in depth. NYSAFE is the key to understanding current antigun strategy. And we will continue to look at the content of the Governor’s NYSAFE website as the Arbalest Quarrel's analysis of the NYSAFE Act continues.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"]

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

NYSAFE Advocate and Gun Hypocrite Ferguson: Is the Story Over? Not by a Long Shot!

The Basic Facts in the Ferguson Case

We all know what happened. Officials at Harvey Austin Elementary School, located in Buffalo, New York, received an anonymous tip. A person had entered the school with a gun. The police were alerted; a SWAT team responded, and the school was “locked down.” Scouring the school, the police eventually traced the weapon to a dubious source: Dewayne Ferguson. Ferguson, 52 years old, father of three, operator of a printing press, who worked as a security guard for community events, was caught. He had carried a gun into a school building. At no time, during the police sweep of the building, did Ferguson inform the police he had a gun on him. What was Ferguson doing in the school? He isn’t a teacher. Still, Ferguson had a legitimate purpose for being at the School, but that purpose did not extend to his having a gun on him.The Buffalo News said that “Ferguson is not employed by the Buffalo School District but was working in the 21st Century Community Learning Program, an after-school academic enrichment initiative that tutors disadvantaged students.” The police arrested Ferguson and he was charged under the same law he fought to pass – the NYSAFE Act. According to WGRZ-TV, a Buffalo news station, Ferguson pleaded not guilty to two weapons charges. WGRZ-TV also reported that prosecutors asked the Court to set bail at $10,000.00, but “City Court Judge Jeanette Ogden released the activist on his own recognizance, citing his community involvement and the fact that Ferguson has no prior run-ins with the law.”Ferguson, a proponent of NYSAFE, is a friend of “antigun” zealots who promoted it. As reported by The Buffalo News, “he was among local activists who stood with Assemblywoman Crystal Peoples-Stokes last year lobbying for a law that would make possessing a gun on school property a felony.” Ironically, Ferguson was charged under the same law he advocated for.The facts as presented here are not in dispute but disturbing questions remain.

Many Questions Loom

Beyond the salient facts, many questions about Ferguson loom. The mainstream media and local news sources are not asking them. So the Arbalest Quarrel will. They are important. Who alerted the school and why? Was the tip truly anonymous? Why did the tipster fail to mention Ferguson by name? If the tipster knew a person had brought a gun into a school, presumably the tipster would also know who that person was. Why wasn’t Ferguson immediately forthcoming to the police about the gun he had on him? When finally confronted by the police, why was Ferguson noncommittal about the gun he had on him?Ferguson claimed he did not know he had carried a gun into the school building. Is that assertion credible? If so, does Ferguson suffer from memory lapses? According to The Buffalo News, Ferguson’s friend, Rev. James E. Giles, says the incident is an “unfortunate mistake.” But what is the unfortunate mistake here: Ferguson bringing a gun into a school at all or the police finding a gun on him? Did this unfortunate mistake happen once or has it happened before? Did Ferguson carry a gun into Harvey Austin Elementary School on previous occasions? If so, perhaps this unfortunate mistake has happened many times.Does Ferguson always carry a gun into Schools? Did Ferguson carry a gun into Harvey Austin Elementary School on every occasion? Does Ferguson carry a gun whenever he is out in public. Was Ferguson carrying his gun during the time he was among local activists who stood with Assemblywoman Crystal Peoples-Stokes last year lobbying for a law that would make possessing a gun on school property a felony?  Should we forgive Ferguson his unfortunate mistake? Should we forgive Ferguson all his unfortunate mistakes? And, if so, should we not forgive similar unfortunate mistakes of others? Once again: does Ferguson carry a gun whenever he ventures out in public?Ferguson has a valid New York State license to carry a gun. But how did Ferguson qualify for his license? They are difficult to obtain as any New York resident whoever tried to acquire one knows.Did Ferguson meet the “need” requirement for a “carry” license? What are the licensing procedures in Erie County, New York? What kind of gun did Ferguson carry into the school? Is the gun Ferguson carried into the school an “assault weapon” as defined by the NYSAFE Act? How many rounds did the gun have? How many guns does Ferguson possess? Ferguson apparently “patrols” shopping malls and streets. Did Ferguson carry a gun while patrolling shopping malls and City streets? If so, is Ferguson also a licensed security guard?Carrying a Weapon into a School Building is IllegalKnowingly carrying a gun into a school is a felony. Ferguson must be aware of that. After all, he is a vocal supporter for NYSAFE. And, as we have seen, Ferguson particularly supported laws criminalizing carrying a gun into schools. Section 41 of the NYSAFE Act is titled, “Criminal Possession of a Weapon on School Grounds.” Section 41 of NYSAFE is codified in Section 265.01-A of the New York Penal Code. Section 265.01-A of the Penal Code reads in pertinent part: “A person is guilty of criminal possession of a weapon on school grounds when he or she knowingly has in his or her possession a rifle, shotgun, or firearm in or upon a building or grounds, used for educational purposes. . . . Criminal possession of a firearm is a Class E felony.” Ferguson had a loaded gun on him when the police arrested him in an elementary school. That is a fact. That fact is not in dispute. But Ferguson claims he did not “know” he had a weapon on him. That issue goes to Ferguson’s state of mind. That is a critical legal issue. Since the Ferguson story has now become the Ferguson case, the Arbalest Quarrel will monitor the case against Ferguson, closely.How will the case against Ferguson proceed? Will the case settle out of Court? If so, what will the nature of that settlement be? If the case proceeds to trial, what new facts will come out at trial? What will the defining legal issues be? And, if Ferguson is found guilty, what will his punishment be? The Public should know. The Public has a right to know. These are critical questions to ponder as the Public sees how NYSAFE applies to individuals and to circumstances. Will some people feel the full brunt of NYSAFE while others get a free pass? The Ferguson case is an important test case. The Arbalest Quarrel will keep you apprised of developments in the case.

Why Isn’t the Ferguson Story Pursued by News Sources?

The mainstream media never reported the Ferguson story. To the MSM the story does not exist. The story never existed. Local news sources did report the story but dropped it. The story simply died. Why is that? The news media’s lack of interest in this story raises its own issues. Surely the MSM had heard of the Ferguson incident as first reported by local news sources. Why didn’t the MSM carry it? And the local news outlets that broke the story know a criminal case is pending against Ferguson. Why aren’t these local news sources pursuing it?We know the MSM reports with machinelike precision all unlawful shootings and unlawful possession of guns. So, the failure of the MSM to report the Ferguson gun incident is suspect. This is an instance of selective reporting. The MSM reports what it wishes to report about guns to create an illusion. The MSM seeks to create the illusion that shootings are prevalent. Yet, in relation to the millions of guns in circulation in the United States, the prevalence of shootings is insignificant. And the vast majority of those shootings are traceable to gang related activities and other criminal conduct. Law-abiding citizens, apart from the police, do defend themselves with guns, but those happenstances are underreported if they are reported at all. The MSM does not want the Public to know that, often enough, a shooting can be and is prevented not by the absence of firearms but through their singular presence.  And, if a lawful shooting does occur and if an individual is killed, the MSM prefers not to acknowledge that the innocent life saved through the shooting of a pathological criminal was the better life preserved than the one by necessity taken. The MSM can have none of that. Governor Cuomo and the drafters of NYSAFE will have none of that because the ludicrousness of the rationale behind NYSAFE would then be plain for all to see.The MSM seeks to sway Public Opinion in one direction: toward gun confiscation and away from gun possession. Weighted news accounts of unlawful use of firearms when not offset by news accounts of lawful use of firearms amount to carefully  postulated and promulgated propaganda. So, the failure of the MSM to report news can be as suspect as the news that is reported. The Ferguson story draws unwanted attention to NYSAFE. The MSM supports NYSAFE. The MSM is a major proponent of NYSAFE. Individuals who support NYSAFE should not be carrying guns – and they certainly should not be caught carrying guns in school buildings. Antigun zealots who possess guns are, then, not sending the correct message to the Public.  Antigun zealots, like Ferguson, who possess and carry guns convey a mode of thought and action that may confuse the Public.  Such antigun zealots who possess and carry guns convey an attitude about guns and promote conduct toward guns inconsistent with and antithetical to the goals, aspirations and strategy of the antigun movement.  The MSM does not wish to confuse and must not confuse the Public on matters pertaining to guns.  The MSM wants its messaging about guns to be clear and categorical and unambiguous. Duplicity cannot be admitted. So the MSM does not report the Ferguson story. The story does not receive national attention. The story does not exist. News stories that reflect badly on NYSAFE and that cast understandable doubt on the character of those who support it and create confusion in the mind of the Public cannot be reported. Those stories must not be reported.  So the Ferguson story must not be reported. The Public must not know NYSAFE has flaws. And the Public must not know that some – perhaps many – supporters of NYSAFE are flawed individuals because they want to possess guns and because, knowingly or not, they happen to break the very laws they so fervently support.NYSAFE cannot be presented to the Public in a bad light. A myth is created. Nothing about NYSAFE can be reported that reflects badly on it and nothing about NYSAFE can be reported that reflects badly upon the lawmakers who drafted it and upon those who support it, like Governor Cuomo. The Governor apparently has aspirations for higher public office.  Were he to succeed to the National Stage, he would likely bring NYSAFE along with him to that Stage. Were that to happen, the Second Amendment to the U.S. Constitution would be effectively repealed among the several States, not simply in New York.With all this in mind, local news sources that broke the Ferguson story are told to kill it. And the local affiliates always obey their masters. But the Arbalest Quarrel will not ignore the Ferguson story even as the MSM and local news sources and news outlets do ignore it. We will not let it lie dormant or dead. We intend to resurrect it.

Hypocrisy in Politics

The Ferguson story must remain on the radar because it exposes hypocrisy.  It reveals hypocrisy in politics. And it reveals hypocrisy in politics on a vast scale and in high Public Office. The Ferguson story, in particular, raises a question about the application of NYSAFE. Does NYSAFE apply to some persons and not to others? Are some individuals de facto exempted from the rigid requirements and penalties of NYSAFE?The MSM isn’t interested in answering these questions. The MSM does not wish to investigate these questions or to resolve them. This is not surprising. The MSM supports NYSAFE. It wants embarrassing questions to go unresolved, unanswered. But the Ferguson story cannot be laid to rest. The Ferguson story is a test bed for application of NYSAFE. How will the provisions of NYSAFE be applied? Does due process and equal protection under our Nation’s laws apply to some and not to others? The Arbalest Quarrel will follow the Ferguson case to conclusion.

Is The Arbalest Quarrel Being Vindictive?

Some persons may argue the Arbalest Quarrel is vindictive toward Dewayne Ferguson. That is not true. Yes, we detest Ferguson, but we do not detest him because he happened to bring a firearm into a school building. The Arbalest Quarrel detests Ferguson because he is a hypocrite. The stance of the Arbalest Quarrel on hypocrisy is clear and unambiguous. We detest hypocrisy and those who practice it. Why do we detest hypocrisy? We detest hypocrisy because we detest the practice of lying. Hypocrisy is the practice of lying. We detest liars. We have taken as our motto a statement from the philosopher, Saint Thomas Aquinas: “As a matter of honor, one man owes it to another to manifest the truth.” As a matter of honor, one American citizen owes it to another to manifest the truth.” Do you believe America’s political leaders and spokespersons for America’s political leaders manifest the truth toward the American Public? We don’t believe they do. And, if not, they do not honor the Public.A person who lies does not honor his fellows. No one should lie as a matter of practice. But those who know their words affect the lives of millions of others should be especially mindful of the impact of their words. Those who impact the lives of millions of people through lies are particularly heinous individuals. They do not honor their fellow man. And by failing to honor their fellow man they themselves are not honorable and are not worthy of honor.When a person lies, he or she fails to honor the recipient of the lie. Worse, when a person lies, he or she shows contempt for the recipient of the lie. Dewayne Ferguson does not honor his fellow Americans because he actively supports laws averse to the Second Amendment but apparently exalts the Second Amendment for a few people only – among those few, himself. The Second Amendment applies to all American Citizens, not to a few special folk. Dewayne Ferguson does not honor his fellow Americans because he actively supports gun confiscation but carries a gun. Ferguson is in a position of power and influence. His words and conduct have weight. He portrays himself as a pacifist. That position is antithetical to carrying a firearm. He calls for more restrictive firearms measures – this, in a State that, prior to NYSAFE, had among the most restrictive gun laws in the Country.

NYSAFE is Gun Confiscation.

NYSAFE is gun confiscation policy. How do we know this? The answer is plain. Read the text of the Act. An entire category of firearms is outlawed. NYSAFE defines many firearms as “assault weapons.” If a gun is defined as an “assault weapon,” it is a banned firearm. If a New York resident purchased an “assault weapon” lawfully, prior to enactment of NYSAFE, he can keep it but only if he adheres to stringent new requirements that NYSAFE requires. The New York gun owner’s ability to transfer an “assault weapon” to another is also constrained. In fact, a firearm defined as an “assault weapon” cannot be transferred to a family member. Do not be deceived. Lawmakers will define ever more firearms as “assault weapons” under NYSAFE unless this unconstitutional restrictive firearms Act is either struck down in its entirety by the Courts or repealed outright. If NYSAFE is not struck down or repealed, eventually all firearms will be banned as illegal “assault weapons.”Do not be misled. NYSAFE is not legislation to curb crime. How do we know this? Simple. No scientific test was conducted prior to enactment of NYSAFE to establish whether implementation of it would help curb crime. NYSAFE was not enacted through an intention to combat crime. That wasn't the reason it was enacted. It was enacted to restrict and constrain possession of firearms, period. That's how  NYSAFE operates. Its provisions are directed to that end. Yet, NYSAFE, like all restrictive gun measures, is heralded as something it is not: a means to curb crime. Crime prevention is always presented as a salient purpose of these laws. Restrictive gun laws are never presented as laws designed to infringe upon the Second Amendment although that is their unstated intent.  These laws are presented in a false and innocuous light: to prevent crime; to protect society, to curb violence. They are directed toward a seeming general utilitarian good.  What is right and good and proper for the individual isn't a factor in that equation.  And the Public is told to take all this on faith. We are supposed to accept the truth of the pronouncements absent supporting evidence. We are expected to accept and many individuals do accept the  pronouncements as certain and as immutable as the laws of nature. The true purpose is thereby successfully cloaked: gun confiscation and gun elimination and quiet disassembling of the Second Amendment.

“All animals are equal, but some animals are more equal than others.” Animal Farm, an allegory, by George Orwell

Dewayne Ferguson promotes gun confiscation because he is a fervent supporter of NYSAFE. He spoke for it. Now, Ferguson happened to have a New York State pistol license that permitted him to carry his weapon concealed. You and I would never have known about that if Ferguson had not blundered. Ferguson carried his firearm into an elementary school. That is not something Ferguson wanted the public to know. But, we found out anyway. Should this be dismissed as an unfortunate mistake as a friend and apologist for Ferguson argues? Or is this behavior so brash it cries out for justice? Is Ferguson confident he is above the law? How many other Fergusons, proponents of NYSAFE who argue against possession of firearms, walk the streets (and, perhaps, the schools) wielding guns? Are they just as confident? Just as haughty? We are all equal under the law. But, are some people more equal than others? Still, Ferguson was caught. Now he has a little explaining to do. He has to explain to the City Court why he brought a gun into a school in contravention to and in seeming defiance of the Act he fervently supports. Ferguson did so anyway. As an advocate for NYSAFE, Ferguson should explain to the Public why firearms confiscation is good for us but not for him. Ferguson should also explain why his life is worthy of preservation and ours, apparently, less so.Ferguson lobbied for NYSAFE. He, along with Governor Cuomo and State Legislators who support NYSAFE, says NYSAFE reduces gun violence and crime. That is a dodge. That is a lame rationale for the real purpose of NYSAFE: elimination of firearms. NYSAFE is a tactical move toward de facto repeal of the Second Amendment. NYSAFE is an incremental step toward total firearms confiscation. But some individuals will obtain dispensation – special individuals such as Ferguson. After all, Ferguson is more trustworthy than you and me. And his life is worth more than yours or mine.

The Public is Tired of Lies.

A movement is afoot across America. The American Public demands responsive and responsible representation from its Country’s leaders. The Public yearns for and deserves the truth. The Public is tired of being lied to. Lies are concomitant with politics today. Hypocrisy is widespread. There are many practitioners of it – too many. They consider hypocrisy acceptable practice in public discourse. Some even consider hypocrisy commendable practice. Politicians and the mainstream media certainly do. The “Arbalest Quarrel,” though, does not. Hypocrisy must stop.The Public demands the truth in all matters impacting upon them. The Public has a right to the truth in all matters impacting upon them. The Public demands the truth from its elected leaders. The Public’s political leaders and spokespersons are not forthcoming with the Public. They are never forthcoming with the American Public. They operate deviously and underhandedly. This must stop.The Arbalest Quarrel has much to say about truth and hypocrisy. See our recent Article on the subject, posted on February 18, 2014: “Truth and Hypocrisy: ‘Bill of Rights’ Betrayal” on this Blog.

Unwelcome Attention and Embarrassment!

The Ferguson story has drawn unwelcome, embarrassing attention to the lies surrounding NYSAFE and to the deceitfulness of those who promote it at all levels of the political spectrum. Local and National news sources are banking on the Public’s short attention span. So, the story has died a quiet death. From the perspective of the MSM that chose never to report the story, the story doesn't exist and never did exist. But the story does exist. And for those who have thought the story died, the Arbalest Quarrel has resurrected it.

Lies and Betrayal

The importance of the Dewayne Ferguson matter goes beyond Ferguson. We are dealing here with lies and betrayal on an order of magnitude never before seen. Consider Federal and State Statutes, International Pacts and Treaties, Executive Orders and “Signing Statements.” Most are prepared in secret and all in the absence of Public debate. This is true of NYSAFE. These Federal and States laws, pacts and treaties, executive orders and signing statements are thrust on the American Public in absolute contradistinction to and in defiance of the Bill Of Rights. The Public is told these restrictive Federal and State laws, international pacts and treaties, executive orders and signing statements are needed to “curb violence,” to “fight terrorism,” to “preserve the financial system,” to “create jobs,” to “restore confidence.” Clichés are thrown at us. We are presented with politically orchestrated drama. The Public is spoon fed this Pablum – this moronic nonsense on a daily basis.The Federal and State Governments operate in secret. The Public suffers a constant campaign of disinformation, non-information and misinformation. The expression ‘national security’ is bandied about ad nauseum.  Do you know what ‘national security’ means? The expression is never defined. It is spoken so often, it has no meaning. But, we accept it as a moral imperative. The expression has become the excuse for ever more secrecy in Government policy. The founders of the Republic abhorred secrecy.Our Government is an open Government, at least as originally contemplated by and designed by our Founding Fathers. No event, no circumstance can be so dire the Public should not be told. But these proponents of secrecy are rewriting our history. Our Bill Of Rights shall be a thing of the past – a quaint curiosity of a bygone time. Why? The Bill Of Rights demands openness. Openness in Government is integrally tied to our Liberties. Those concepts are inconsistent with present Government plans for repression of ideas. And an armed Public is a danger to those who seek further curbs on freedom of expression.

What the Arbalest Quarrel Wants.

The Arbalest Quarrel wants sanctimonious hypocrites like Governor Cuomo and those lawmakers who drafted NYSAFE removed from Public Office. They do not belong in Public Office; nor should they serve in any Governmental capacity. They do not represent the best interests of the Public. They do not support and defend our Bill Of Rights, Their statements do not match their deeds. Governor Cuomo forces an odd ideology down our throats. And he presumes to know what is in our best interests. He does not speak for the majority of New York’s residents. And he certainly cares not for the sanctity of and preservation of the Second Amendment. The majority of New York residents want NYSAFE repealed. Governor Cuomo, who signed NYSAFE into law, does not. His NYSAFE site sets forth, “this new law preserves and protects your right to buy, sell, keep or use your guns.” The assertion is blatantly false, but the Governor asserts it anyway.NYSAFE severely restricts the guns a New York resident may own and possess and places extraordinary constraints on buying, keeping, using and transferring guns. So, who is the Governor fooling? He is fooling no one except the ignorant.  And whom does the Governor purport to speak for? He speaks for a small minority of New Yorkers who are fearful of their own shadows. He speaks for those who want and expect the Government to protect them from themselves. And he speaks for those inside the Country and outside it who want to make our sacred “Bill Of Rights” compatible with the Constitutions of foreign Countries. He speaks for those who believe our Constitution is too old and not in conformity with modern judicial and jurisprudential thought. He speaks for those who want to bring our Nation's laws into the fold of those other Western Nations, discounting, then, over 200 years of our unique history. He speaks for those who would like foreign laws to override those of the U.S. Constitution. And he speaks for those who would like to extinguish those rights and protections set forth in and mandated by our sacred Bill of Rights.We want and expect honesty and forthrightness from those in Office who serve in our name. These are not qualities most in public Office possess. Truth is not something they choose to give us. Truth is not something they would willingly give us. Truth in Public Office is a commodity in short supply these days.So, we want the Nation’s political leaders to know we can and will remove them from Office when they are untruthful to the Public. We want the Nation’s political leaders to know we can and will remove them from Office when they fail to uphold the Bill Of Rights. We want the Nation’s political leaders to know we can and will remove them from Office when they place their interests above those of the American People.

Your Help is Sorely Needed

Have you had enough of Government intrusiveness and Government lies and Government secrecy? We have.Together, we can defeat the Anti-American elements both within our Society and outside it that are working quietly but inexorably to dismantle our “Bill Of Rights.” We can begin to fight back through repeal of the Anti-American NYSAFE Act.Will you be a part of our Grassroots effort in New York? In the weeks ahead, the Arbalest Quarrel will provide you the steps you can take as we, together, work toward repeal of NYSAFE. New York may then proudly stand with Colorado as we take back our Country from the destroyers of our sacred “Bill Of Rights.” Keep abreast of the facts about gun laws. Check out our website often!________________________________

Copyright © 2014 Roger J Katz (Towne Criour) and Stephen L. D’Andrilli (Publius) All Rights Reserved.

Transferring Firearms To Private Parties: What New Yorker's Need To Know

What the Law-Abiding New York Firearms' Owner Must Know about Governor Andrew Cuomo's NYSAFE Act

CAPSULE SUMMARY

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.

OUR ASSUMPTIONS

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.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"]

Copyright © 2013 Roger J Katz (Towne Criour) All Rights Reserved.

Cuomo's NYSAFE Act And The Notion Of 'Assault Weapon'

What the Law-Abiding New York Firearms' Owner Must Know about Governor Andrew Cuomo's NYSAFE Act

NEW YORK’S ATTACK ON THE SECOND AMENDMENT

The Second Amendment is under attack. The Second Amendment is under constant attack. The State of New York has taken the Nation’s lead in undermining the exercise of this fundamental right through enactment of the NYSAFE Act. But you would make a mistake to accept the NYSAFE Act as something new and novel in the history of restrictive firearms regulation. It isn’t new. The NYSAFE Act is an elaboration over the last set of harsh New York firearms control laws. Through incremental steps the New York State firearms’ control laws grow ever harsher. The systematic erosion of New York residents’ Second Amendment rights is underway and has been underway for decades. This erosion is slow and lumbering but relentless and enduring. NYSAFE Act is terrible. It exists. So, we must contend with it.

YOU CAN NO LONGER BUY ASSAULT WEAPONS LAWFULLY IN NEW YORK

Many New York political leaders do not want New York residents to have firearms. But they loathe assault weapons in the hands of citizens. With enactment of NYSAFE politicians place tight controls on assault weapons. Residents can no longer buy assault weapons lawfully in New York, nor readily transfer them.If you do not own an assault weapon and wish to buy an assault weapon in the future, you no longer can do so – not in New York. If you do own an assault weapon and wish to buy a second assault weapon, you no longer can do so – not in New York. If you now own an assault weapon and you wish to sell the weapon and later wish to buy another assault weapon, you cannot do so – not in New York. If you wish to sell an assault weapon or give the weapon away, then you must do so as the NYSAFE Act says. And, if you own an assault weapon and wish to keep the weapon – well – that is not easy because the Governor makes you jump through hoops. And, if you fail to do whatever you must to meet the new firearms control laws, you will be in trouble.

THE PURPOSE OF THIS ARTICLE

The purpose of this Article is to aid you in understanding the restrictive new firearms laws of New York: how they affect you; how they impact you and your firearms. No other website will provide you a more detailed and informative analysis of NYSAFE. You would need a licensed attorney to analyze the Act for you. His services are likely to be expensive.

WHY WE ARE DOING THIS

We see a need. We wish to fill that need. And we have faith in our cause: to preserve and protect our Bill of Rights. And, we see the especial need to preserve and protect our sacred right to keep and bear arms, embodied in the Second Amendment to the United States Constitution. Our goal is to wake you up, not anesthetize you; to educate you, not indoctrinate you; to develop your critical reasoning faculties; not clamp them down.

THE GOVERNOR’S TAKE ON NYSAFE

The Governor’s own treatment of NYSAFE is simplistic. Ours isn’t. What does the Governor say about NYSAFE? Take a look. Here’s the link: NYSAFE ACTVisually, the Governor’s site is impressive. The Governor has spared no expense on it. The site has stunning graphics and hosts many interactive tools. And the website displays the red, white and blue of the Nation’s flag. By draping the site around the Nation’s colors, the Governor wishes to ease concern over the NYSAFE Act. By draping the site around the Nation’s colors, the Governor is saying New York will protect the citizen’s right to keep and bear arms. If you miss the Governor’s hint, he hits you with this: “The safe act protects law-abiding citizens’ right to bear arms and does not restrict New Yorker’s ability to buy, sell, keep or use their firearms.” Oh?The Governor adds: “This website is a one-stop resource for New Yorkers to better understand how the NY SAFE Act does and does not affect you. Learn how you can keep you and your family safe.”I do not grasp how the NYSAFE Act can keep a person and his family safe. From what the site offers the statement strikes me as more vain hope than promise. But even if true, hidden in the assertion is the Governor’s naked conceit: token security at the expense of liberty. And the claim, a “one-stop resource,” is bold and boastful. The Governor, at best, holds a sincere but false belief. At worst, the Governor is deceiving you.The Governor’s “one-stop resource” lacks careful attention to detail our site provides. The Governor’s NYSAFE website simply lacks the academic rigor needed to grasp NYSAFE.Unlike the Governor’s take on the NYSAFE Act, I will not say or suggest NYSAFE is easy to understand. It isn’t. But you must know NYSAFE to prevent revocation of your pistol license and long arm permit. You must know NYSAFE to prevent confiscation of your “assault weapons.” You must know NYSAFE to preclude imposition of civil penalties and criminal sanctions. Because New York has expanded Firearms control laws through enactment of NYSAFE, you must know NYSAFE. I will explain it.In this post and several posts to follow I describe and explain the NYSAFE Act. I talk about and analyze several sections of the Act. The purpose here is to teach, not deceive; to inspire, not entertain; to protect the Second Amendment right to keep and bear arms, not betray that right.

WHY DO YOU DISCUSS THE NYSAFE ACT?

NYSAFE is the model for restrictive firearms legislation across the Country. Recent proposed or passed State and Federal firearms legislation mirror NYSAFE. To understand NYSAFE is to understand the political strategy of antigun groups and of allied politicians in Congress and State Legislatures across the Country.In this post I’ll give you a short background on NYSAFE and begin my discussion of the words, ‘assault weapons.’

WHEN WAS NYSAFE ENACTED?

The New York State Legislature passed the NYSAFE Act on January 14, 2013. Governor Andrew M. Cuomo signed the Act into law on January 15, 2013. He’s proud of it. He has, as mentioned, devoted an entire website to it. Proponents say NYSAFE is a commonsense Act and sets a good example for the Nation. I know better. So do you.

WHAT IS THE NYSAFE ACT?

The NYSAFE Act isn’t one law but a set of laws. The Act is a grab bag of laws, wrapped into one thing. The official title is: “the NY Secure Ammunition and Firearms Enforcement (SAFE) Act of 2013 (Senate Bill 2230).” Often shortened to NYSAFE or the SAFE Act, the Act is a lengthy and confusing document, neither obvious in meaning nor workable in practice. And it cuts across the New York criminal procedure law, the family court act, the general business law, the mental hygiene law, the penal law and other laws. What the Act may do in making New York residents safer is open to debate. But in practice the Act creates confusion for firearms’ owners and difficulties for businesses. The Act creates headaches for the courts which must adjudicate the laws and headaches for public officials who must administer the laws. The Act places added burdens on firearms dealers and extra requirements on both the Superintendent of State Police and the Commissioner of Education. And the Act poses a moral quandary for mental health professionals who must resolve the laws with their ethical duty to their patients.

A WORD ABOUT ‘ASSAULT WEAPONS’

There is much buzz about assault weapons. President Barack Obama talks about them. Vice President Joseph Biden talks about them. Senators Dianne Feinstein and Charles Schumer talk about them. Governor Andrew Cuomo talks about them. Michael Bloomberg had talked about them and the new Mayor, Bill De Blasio, will talk about them.The President and other ‘gun control’ advocates call these firearms weapons of war. But the military uses few of these weapons in their present configuration and uses none of them, to my knowledge, in a ‘battlefield assault’ role. ‘Gun control’ advocates liken these weapons to selective-fire or full auto submachine guns even though assault weapons are not selective-fire or full auto submachine guns. ‘Gun control’ advocates suggest ‘assault weapon’ is a technical military expression. But the military doesn’t use it and never has used it. The military does use the expression, ‘assault rifle.’

ISN’T AN ASSAULT WEAPON AN ASSAULT RIFLE?

No! Do not confuse the expression ‘assault weapon’ with the expression ‘assault rifle.’ The expression ‘assault weapon’ is not equivalent in meaning to the expression ‘assault rifle.’ The expression, ‘assault rifle,’ unlike the expression, ‘assault weapon,’ is a military expression. The words, ‘assault rifle,’ refer to a short, compact, selective-fire weapon that fires a cartridge intermediate in power between submachine gun and rifle cartridges. To read more about this, see David P. Kopel’s excellent Article, “Rational Basis Analysis of ‘Assault Weapon’ Prohibition.” The link to the Article is here: guncite.com.Assault rifles are battlefield weapons. Assault weapons are not. But that does not prevent news commentators from referring to “assault weapons” as “military weapons.” Do not listen to those who tell you otherwise.

PAY NO ATTENTION TO OPINIONS. OPINIONS WILL TRIP YOU UP.

The opinions of news commentators are irrelevant and of no importance to the basic question: are any of your weapons “assault weapons?”

TURN TO THE NYSAFE ACT TO UNDERSTAND WHAT ‘ASSAULT WEAPON’ MEANS

The NYSAFE Act is where we make sense of – or at least try to make sense of – the expression ‘assault weapon.’The NYSAFE Act is ‘the law of the land’ and the law applies to you, the New York resident. So, to learn whether one or more of your weapons are assault weapons you must turn to the NYSAFE Act. Nothing else is important or relevant to the matter of your weapons -- nothing.

APPROACH THE ISSUE OF ASSAULT WEAPONS AS AN ATTORNEY WOULD

Lawyers ignore the emotional outbursts of politicians, of news anchors, commentators and analysts, and of talk show hosts. You should ignore those emotional outbursts too.

RECAP

In this post I gave you general information about the NYSAFE Act. I talked briefly about the notion, ‘assault weapons.’ And I cautioned against equating ‘assault weapon’ with the military, ‘assault rifle.’ Military weaponry does not bear on our discussion.I said, too, we look to the NYSAFE Act for guidance. What the NYSAFE Act says about “assault weapons” is relevant and critical to our inquiry. I stressed that point. What the NYSAFE Act says about the words ‘assault weapon,’ is what counts. That alone is important. Opinions about “assault weapons” count for nothing. You must keep these points in mind. I will reiterate them throughout my discussion of the NYSAFE Act.In the posts that follow, I will continue my discussion of “assault weapons.” I will then lay out the categories of ‘assault weapon’ and focus on the definitions of ‘assault weapon.’ I will direct your attention to a couple of expressions that appear in the definitions: ‘semiautomatic’ and ‘detachable magazine.’ We will build an analytical framework. Once completed, we can examine any firearm and know if it is an “assault weapon” under NYSAFE. And we will discuss your obligations under NYSAFE in respect to it.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"]

Copyright © 2013 Roger J Katz (Towne Criour) All Rights Reserved.