IS THE “MAXIM 50 SUPPRESSED MUZZLELOADER”, MANUFACTURED BY SILENCERCO, LEGAL IN THE STATE OF NEW JERSEY?

The Arbalest Quarrel has previously analyzed New York State gun laws to determine whether a New York resident, who wishes to own and possess the Maxim 50 “integrally suppressed muzzleloader,” manufactured by SilencerCo, can lawfully do so. SilencerCo says that civilians can do so in all 50 States, which, then, includes New York. SilencerCo says that, in most States, individuals can purchase the Maxim 50 directly through interstate commerce, direct from the manufacturer, SilencerCo, meaning that an individual need not purchase the Maxim 50 through an intermediary, meaning a licensed dealer in firearms. According to SilencerCo, a civilian, who desires to purchase the Maxim 50 in some jurisdictions—which includes New York—that civilian can still do so but must obtain the Maxim 50 through a licensed gun dealer. That means that a person who wishes to purchases the Maxim 50 in a jurisdiction, such as  New York, and certain other jurisdictions that SilencerCo mentions on its website, can do so but can only do so through a licensed gun dealer, operating and doing business in the State in which the individual resides. Specifically, SilencerCo says this:“For the first time since the National Firearms Act (NFA)* was created in 1934, civilians can enjoy suppressed shooting in all 50 states with SilencerCo’s latest innovation: the integrally suppressed Maxim 50 muzzleloader. In addition, this product can be purchased right now on the web with no regulation (no 4473, no $200 tax stamp, no photographs, and no fingerprints) and be shipped immediately to the customer with few exceptions.” New York is one of those few exceptions, according to the manufacturer. SilencerCo says a prospective purchaser, residing in New York may still obtain the weapon, but must do so, not directly, through interstate commerce, shipped directly to the purchaser’s home, but, indirectly, through a holder of an FFL. Is this statement true?Through our own detailed research of New York gun laws, the Arbalest Quarrel concluded that, contrary to SilenceCo's pronouncements, the Maxim 50 is illegal in New York. No reputable licensed gun dealer will, under New York law, accept delivery of a Maxim 50 for ultimate disposition to a civilian. Therefore, no law-abiding New York resident, who is a civilian, and who does not fall under an exemption, should attempt to obtain one.Since a New York resident, who does not fall within an exemption, cannot legally accept delivery of the Maxim 50, either directly from the manufacturer, SilenceCo, or indirectly, from the manufacturer, through a licensed gun dealer, no New York resident (a civilian), can legally possess the Maxim 50. You can read our highly detailed, comprehensive analysis of the impact of New York firearms laws on the issue of the legality/illegality of the Maxim 50 in New York, on the Arbalest Quarrel website, under the title, “Is the “Maxim 50 Suppressed Muzzleloader”, Manufactured by Silenceco, Legal in the State of New York?” Also, in that Arbalest Quarrel article on the Maxim 50 suppressed Muzzleloader, as part of our detailed, comprehensive analysis, we discuss, in depth and at length, the concept of a ‘firearm,’ under federal law as well as under New York law.The legality of civilian ownership and possession of the Maxim 50 must satisfy both federal law as well as the laws of the jurisdiction where the civilian, desiring to possess the Maxim 50 suppressed Muzzleloader, resides. Under federal law, the Maxim 50 does not satisfy the federal definition of ‘firearm,’ and, so, does not fall within the purview of the National Firearms Act of 1934. Since we have previously discussed application of federal law to the Maxim 50 suppressed Muzzleloader, at length, in our previous article on the Maxim 50, apropos of New York law, we won’t reiterate the points here, but invite interested readers, once again, to peruse our in depth analysis in our article--Is the “Maxim 50 Suppressed Muzzleloader”, Manufactured by Silenceco, Legal in the State of New York?”After posting our article, a second reader asked the Arbalest Quarrel whether the average law-abiding civilian, not under disability, may lawfully own and possess the “Maxim 50 Suppressed Muzzleloader” in New Jersey.Now we can cut to the chase here because, as of the date of the posting of this article, SilenceCo will not ship the Maxim 50 either directly to a resident of New Jersey or indirectly, to a resident of New Jersey, through a licensed dealer operating and doing business in New Jersey. This statement contradicts SilenceCo's claim “that civilians can enjoy suppressed shooting in all 50 states with SilencerCo’s latest innovation: the integrally suppressed Maxim 50 muzzleloader” since SilencerCo asserts, at another point on its website, that the Company will not ship the Maxim 50 in three States, even indirectly through a licensed firearms dealer—operating and doing business in New Jersey, California, and Massachusetts. SilencerCo says, of these three States, “Maxim 50 is currently restricted in these states pending legal determinations." So, because SilencerCo will not ship the Maxim 50 even to a licensed dealer operating and doing business in New Jersey, California or Massachusetts.” This means that a resident cannot lawfully obtain the weapon even indirectly through a licensed gun dealer, because it would be illegal to do so, as the Maxim 50 is banned in those States.But, is that, in fact, true, and, if so, why?One website “Range365,” had this to say about the problem SilencerCo is having with New Jersey, California, and Massachusetts: “As soon as the company announced the gun and its legal status, it was challenged by lawyers and authorities in three states with some of the toughest gun laws in the country and where suppressors are banned at a state level: New Jersey, California, and Massachusetts. Here’s an official statement from SilencerCo regarding the legal status of the Maxim 50: ‘Upon launching the Maxim 50, SilencerCo received several immediate legal challenges from authorities and lawyers in the states of New Jersey, California, and Massachusetts. Since we have no desire to place any consumer in a situation where they may get arrested and charged with a felony because their state defines a firearm differently than the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE), we have placed orders from those states on hold and are refunding customers pending conversations amongst lawyers. These three states have rules that are not entirely clear with respect to firearms and silencers and antique firearms, and it is relevant to point out that no states contemplated a product of this sort in their laws. Muzzleloaders are considered “‘antique firearms’” by the ATF, and therefore, the Maxim 50's integral suppressor isn't considered a suppressor.SilencerCo asked for and received a determination from the BATFE on behalf of the federal government prior to launch but could not do so officially from each state government or risk specific state-level legislation being passed prohibiting the product before it was even launched. We will refund orders to customers from these states and update consumers as soon as feasible as to the ultimate determination in California, New Jersey, and Massachusetts. “We believe that law­ abiding citizens should have the ability to purchase and own silencers, regardless of what state they live in. We will continue our efforts in advocacy and encourage all who share our desire to take action and contact their elected representatives by visiting www.fightthenoise.org.’Federally, the Maxim 50 is considered legal because, as a muzzleloader, it is defined as an “antique firearm” and not a “firearm” by the ATF, which exempts them from many gun laws. Muzzleloaders are not required to go through an FFL (they are in NJ) and can be shipped right to your door, in most states. Likewise, because the integral suppressor can’t be removed or attached to a “firearm,” it is not considered a suppressor and is not subject to National Firearms Act regulations.”The Maxim 50 is currently restricted in these states pending legal determinations. So, SilenceCo will not ship the Maxim 50 even to a licensed dealer operating and doing business in New Jersey, California or Massachusetts." The Arbalest Quarrel, for its part, doesn’t assume any  assertion, involving legal issues, is true until we analyze the applicable laws impacting firearms in the respective jurisdictions ourselves, and, having done so, then explain our findings to interested readers. So, let us begin, forthwith.

DOES THE MAXIM 50 COME UNDER THE PURVIEW OF NEW JERSEY GUN CONTROL LAWS?

New Jersey law utilizes some of the language of federal firearms law, but, as with New York firearms law, New Jersey firearms law has its own unique twists and wrinkles.

IS THE MAXIM 50 DEFINED AS A FIREARM UNDER NEW JERSEY GUN CONTROL LAWS?

We go to the New Jersey Annotated Statutes for the answer.Let’s look at some definitions. We turn to N.J. Stat. § 2C:39-1 of Title 2C, The New Jersey Code of Criminal Justice  >  Subtitle 2. Specific Offenses  >  Part 5. Offenses Against the Public; Public Order, Health and Decency  >  Chapter 39. Weapons. First, we look at the definition of ‘firearm.’ N.J. Stat. § 2C:39-1 of Title 2C says, “the following definitions apply to this chapter [Chapter 39 (Weapons)] and to Chapter 58 [Possession of Firearms].”

DEFINITION OF 'FIREARM' IN NEW JERSEY LAW:

N.J. Stat. § 2C:39-1(f) says this: “‘Firearm’ means any handgun, rifle, shotgun, machine gun, automatic or semi-automatic rifle, or any gun, device or instrument in the nature of a weapon from which may be fired or ejected any solid projectable ball, slug, pellet, missile or bullet, or any gas, vapor or other noxious thing, by means of a cartridge or shell or by the action of an explosive or the igniting of flammable or explosive substances. It shall also include, without limitation, any firearm which is in the nature of an air gun, spring gun or pistol or other weapon of a similar nature in which the propelling force is a spring, elastic band, carbon dioxide, compressed or other gas or vapor, air or compressed air, or is ignited by compressed air, and ejecting a bullet or missile smaller than three-eighths of an inch in diameter, with sufficient force to injure a person.”The Maxim 50 fits the New Jersey definition of 'firearm.' So, the Maxim 50 is a firearm under New Jersey firearms laws.

DEFINITION OF 'ANTIQUE FIREARM' IN NEW JERSEY LAW:

N.J. Stat. § 2C:39-1(a) says this: “‘Antique firearm’ means any rifle or shotgun and “antique cannon” means a destructive device defined in paragraph (3) of subsection c. of this section, if the rifle, shotgun or destructive device, as the case may be, is incapable of being fired or discharged, or which does not fire fixed ammunition, regardless of date of manufacture, or was manufactured before 1898 for which cartridge ammunition is not commercially available, and is possessed as a curiosity or ornament or for its historical significance or value.”The manufacturer says, in its product manual, to “USE ONLY BLACK POWDER OR APPROVED BLACK POWDER SUBSTITUTE IN YOUR MUZZLELOADER.” So, then, the Maxim 50 suppressed Muzzleloader, is also an "antique firearm."

WHY, SPECIFICALLY, THE MAXIM 50 IS BOTH A FIREARM UNDER NEW JERSEY LAW AND AN ANTIQUE FIREARM UNDER NEW JERSEY LAW

Clearly, under New Jersey law, the Maxim 50 suppressed Muzzleloader is a firearm under New Jersey law precisely because the weapon does fire a "solid projectable ball, slug, missile or bullet. . . by means of a cartridge or shell or by the action of an explosive or the igniting of flammable or explosive substances."  But, the weapon is also an "antique firearm" under New Jersey law precisely because the weapon "does not fire fixed ammunition." * The conclusion we are forced to draw is singularly bizarre, to be sure, but true, nonetheless, given the definitions provided to us in the New Jersey Annotated Statutes: A weapon, any muzzleloader that is either a shotgun or rifle satisfies the definitions of both a 'firearm' and an 'antique firearm' under New Jersey firearms laws. So, some weapons. including, then, the Maxim 50, can be both a firearm and an antique firearm. This makes the concept of 'antique firearm', then, essentially redundant.Thus, under New Jersey law, unlike the situation in federal law, a muzzleloader, that does not fire fixed ammunition, is both a firearm and an antique firearm. This fact is important as it leads directly to the question whether a person, namely a civilian, not under disability, who seeks to purchase a muzzleloader rifle or shotgun--any muzzleloader rifle or shotgun--must obtain a valid New Jersey firearms identification card to do so, lawfully. To explain this, we turn, once again, to New Jersey Statute.

DOES PURCHASE OF A MUZZLELOADER IN NEW JERSEY REALLY REQUIRE A FIREARMS IDENTIFICATION CARD?

N.J. Stat. § 2C:58-3(b) Purchase of Firearms, of the New Jersey Annotated Statutes  >  Title 2C. The New Jersey Code of Criminal Justice  >  Subtitle 3. Sentencing  >  Chapter 58. Possession of Firearms; Licensing Firearms purchaser identification card says: "No person shall sell, give, transfer, assign or otherwise dispose of nor receive, purchase or otherwise acquire an antique cannon or a rifle or shotgun, other than an antique rifle or shotgun, unless the purchaser, assignee, donee, receiver or holder is licensed as a dealer under this chapter or possesses a valid firearms purchaser identification card, and first exhibits the card to the seller, donor, transferor or assignor, and unless the purchaser, assignee, donee, receiver or holder signs a written certification, on a form prescribed by the superintendent, which shall indicate that he presently complies with the requirements of subsection c. of this section and shall contain his name, address and firearms purchaser identification card number or dealer’s registration number. The certification shall be retained by the seller, as provided in paragraph (4) of subsection a. of N.J.S.2C:58-2, or, in the case of a person who is not a dealer, it may be filed with the chief of police of the municipality in which he resides or with the superintendent."Pay particular attention to the first conjunct of the sentence: “No person shall sell, give, transfer, assign or otherwise dispose of nor receive, purchase or otherwise acquire an antique cannon or a rifle or shotgun, other than an antique rifle or shotgun, unless the purchaser, assignee, donee, receiver or holder is licensed as a dealer under this chapter or possesses a valid firearms purchaser identification card.” Under a reasonable construction of N.J. Stat. § 2C:58-3(b), this would suggest that a person (civilian), not under disability, who resides in New Jersey, does not require a valid firearms purchaser identification card to possess an antique rifle or shotgun. But, if an antique rifle and an antique shotgun are also defined as 'firearms'--and they are defined as 'firearms' under N.J. Stat. § 2C:39-1(f)--then a valid firearms purchaser identification card is required. Clearly the two Statutes, N.J. Stat. § 2C:58-3(b) and N.J. Stat. § 2C:39-1(f), are inconsistent. The two Statutes are in conflict as to the issue whether a resident of New Jersey is required to hold a valid firearms purchaser identification card to possess an antique rifle or antique shotgun. The problem arises because, under the definition of 'firearm,' as set forth in N.J. Stat. § 2C:39-1(f), there is no distinction made between weapons that fire "fixed ammunition," namely and essentially, those weapons that utilize cartridges, and those that do not, namely, those that utilize black powder as a propellant, along with a separate ball or pellet, as is the case with muzzleloaders, such as the Maxim 50. Is this conflict due to devious design in the drafting or due to inadvertent ignorance or negligence? Who can say?Okay, then. So, the Maxim 50 suppressed Muzzleloader, is both a "firearm" and an “antique firearm” under New Jersey law. In either event, a person, who is a civilian residing in New Jersey, and who is not under disability, can lawfully possess a rifle that is muzzleloader and a shotgun that is a muzzleloader. But, in either case, that person must first obtain a valid New Jersey firearms identification card to do so, lawfully. These weapons are not banned in New Jersey. Is that all we should be concerned about, when dealing with the Maxim 50? That, indeed, would be the only thing that we would have to worry about, if the Maxim 50 were an ordinary muzzleloader. But, wait a second! The Maxim 50 is not an ordinary muzzleloader. Yes, the Maxim 50 is a firearm under New Jersey law and it is also an "antique firearm," under New Jersey law, but, specifically, it is both a firearm and an antique firearm that, under either or both definitions, utilizes a suppressor, integrated into the weapon, according to the manufacturer. In fact, that is the significant and defining feature of the Maxim 50 and a significant selling point. The weapon comes equipped with an integrated firearms suppressor (essentially, an (integrated) “firearms silencer,” under New Jersey law (and we understand that the word ‘firearms silencer’ is inaccurate and essentially a misnomer, as the component "silences" nothing and that the expression 'firearms suppressor' is the preferred expression as it this expression that is used in the firearms industry)).  We must now ask a salient and penultimate question: Does New Jersey discuss silencers in its annotated Statutes? Yes, it does.  Yet, this fact is of no substantive legal or logical consequence if “silencers” are legal in New Jersey. But are they? Let's see.

DEFINITION OF 'FIREARM SILENCER' IN NEW JERSEY LAW

N.J. Stat. § 2C:39-1(g) says this: “‘Firearm silencer’ means any instrument, attachment, weapon or appliance for causing the firing of any gun, revolver, pistol or other firearm to be silent, or intended to lessen or muffle the noise of the firing of any gun, revolver, pistol or other firearm.Important Note: under this definition, the fact that the Maxim 50 weapon makes use of an integrated silencer or suppressor, doesn’t obviate or change  the basic nature of the weapon as a ‘firearm silencer' under New Jersey law, whether the silencer is integrated into the weapon or not.Once again, this fact would be of no substantive consequence if “silencers” were legal in New Jersey. But are they? This takes us to the next critical question:

ARE SILENCERS LEGAL IN NEW JERSEY?

No they are not! Why is that? Let’s see. N.J. Stat. § 2C:39-3(c), “silencers” of N.J. Stat. § 2C:39-3, titled, “Prohibited weapons and devices,” of the New Jersey Annotated Statutes  >  Title 2C. The New Jersey Code of Criminal Justice  >  Subtitle 2. Specific Offenses  >  Part 5. Offenses Against the Public; Public Order, Health and Decency  >  Chapter 39. Weapons, categorically bans the possession of silencers. N.J. Stat. § 2C:39-3(c), “silencers” says this: “Any person who knowingly has in his possession any firearm silencer is guilty of a crime of the fourth degree.”Now we must consider whether the fact that the Maxim 50 is manufactured with a suppressor that is integrated into the weapon serves to override the problem commonly associated with “silencers” as separate components of weapons. This requires us to ask and answer the salient, critical, and ultimate question:

DOES A WEAPON--IN THIS CASE, THE MAXIM 50--THAT UTILIZES A SILENCER (SUPPRESSOR) THAT IS INTEGRATED WITH THE WEAPON, RATHER THAN CONSTRUED AS A SEPARATE COMPONENT OF A WEAPON THAT NEED NOT, THEN, BE UTILIZED WITH THE WEAPON--SATISFACTORILY AVOID THE PROBLEM ASSOCIATED WITH SILENCERS AS ILLEGAL COMPONENTS OF WEAPONS, UNDER NEW JERSEY LAW?

Once again, pay attention to the language of Statute. Under New Jersey law, specifically, N.J. Stat. § 2C:39-1(g), “‘Firearm silencer’ means any instrument, attachment, weapon or appliance for causing the firing of any gun, revolver, pistol or other firearm to be silent, or intended to lessen or muffle the noise of the firing of any gun, revolver, pistol or other firearm.” Under a reasonable interpretation of New Jersey law, a firearm silencer (firearm suppressor) is broadly defined to include many things: instruments, attachments, weapons or appliances. The manner in which the device is employed by or utilized in a weapon--whether separate and apart from a weapon or incorporated in a weapon is, then, irrelevant to it's nature and to the question of its lawfulness in New Jersey. The fact, then, that the firearm silencer (firearm suppressor) is integrated into the Maxim 50 is of no moment. Under the definition provided in N.J. Stat. § 2C:39-1(g), the fact that the Maxim 50 weapon makes use of an integrated silencer or suppressor, doesn’t obviate or change the basic nature of the weapon as a ‘firearm silencer' under New Jersey law, whether the silencer is integrated into the weapon or not. To the extent that a "silencer" is per se a "weapon" is sufficient to render it illegal under N.J. Stat. § 2C:39-3(c). Again--N.J. Stat. § 2C:39-3(c) “silencers” of N.J. Stat. § 2C:39-3, titled, “Prohibited weapons and devices,” of the New Jersey Annotated Statutes  >  Title 2C. The New Jersey Code of Criminal Justice  >  Subtitle 2. Specific Offenses  >  Part 5. Offenses Against the Public; Public Order, Health and Decency  >  Chapter 39. Weapons, categorically bans the possession of silencers. N.J. Stat. § 2C:39-3(c): “Any person who knowingly has in his possession any firearm silencer is guilty of a crime of the fourth degree”--presents an insurmountable problem for SilencerCo and for those individuals, namely residents of New Jersey, civilians, not under disability, who would like to purchase and possess the Maxim 50.So, the fact that the Maxim 50 is a firearm under New Jersey law and the fact that the Maxim 50 is also an antique firearm under New Jersey law do not, of themselves, create insurmountable legal hurdles for those individuals--residents of New Jersey, civilians, not under disability--who might wish to own and possess a Maxim 50. But, the fact that the Maxim 50 is also a 'silencer' does create an insurmountable hurdle for those individuals who seek to own and possess a Maxim 50, in New Jersey. And, this is the problem presently plaguing SilencerCo that would like to be able to market the weapon to civilians in New Jersey. 

BOTTOM LINE:

The Arbalest Quarrel concludes that the Maxim 50 suppressed Muzzleloader, whether construed as a “firearm” or as an “antique firearm” is, in either case, a silencer, under the laws of New Jersey and, therefore, patently illegal for a person to own or possess in New Jersey unless a person falls within the purview of N.J. Stat. § 2C:39-6, titled, Exemptions, which include, inter alia, federal law enforcement officers, Members of the State Police, Members of the Armed Forces of the United States or of the National Guard if on actual duty, and licensed dealers in firearms, during the course of their normal business. Therefore, the average, law-abiding New Jersey resident, who does not fall within an exemption, and who is not under disability, should not attempt to obtain the Maxim 50. To do so is to invite decidedly unpleasant legal repercussions.As we said in our previous article, determining the legality of the Maxim 50 in New York, whether the Maxim 50 is "legal" in other States requires a separate analysis of each State's own peculiar firearms' laws. The Arbalest Quarrel will analyze other State laws to ascertain whether the Maxim 50 is legal in those States, upon specific request of readers._________________________________________________*Note: There is another perplexing wrinkle in New Jersey. New Jersey firearms Statutes make no mention of a handgun in the definition of 'antique firearm.' So, do not assume that, because it might appear that a handgun is an "antique," that the handgun can be treated like an "antique rifle" or "antique shotgun". It cannot. A handgun that is a muzzleloader is not an "antique firearm" at all under New Jersey law.  Under N.J. Stat. § 2C:58-3(a) Purchase of Firearms, of the New Jersey Annotated Statutes  >  Title 2C. The New Jersey Code of Criminal Justice  >  Subtitle 3. Sentencing  >  Chapter 58. Possession of Firearms; Licensing Firearms purchaser identification card, a person requires a handgun identification card to purchase and to possess a handgun, regardless of the kind of handgun. N.J. Stat. § 2C:58-3(a) says: “Permit to purchase a handgun. No person shall sell, give, transfer, assign or otherwise dispose of, nor receive, purchase, or otherwise acquire a handgun unless the purchaser, assignee, donee, receiver or holder is licensed as a dealer under this chapter or has first secured a permit to purchase a handgun as provided by this section.”_________________________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

IS THE “MAXIM 50 SUPPRESSED MUZZLELOADER”, MANUFACTURED BY SILENCERCO, LEGAL IN THE STATE OF NEW YORK?

A reader of the Arbalest Quarrel asked us whether New York bans the Maxim 50, manufactured by SilencerCo. To answer this question, we first went to the manufacturer’s website to get a handle on what the Maxim 50 is since the manufacturer’s description of it serves as the basis for legal analysis. The central issue is whether the Maxim 50 is a firearm under Federal and New York law. If the Maxim 50 is construed as a firearm under Federal law, it comes under the purview of the National Firearms Act of 1934, and under the purview of the Gun Control Act of 1968, and, as applicable, under the purview of those Acts as subsequently amended.The manufacturer, SilencerCo, describes the Maxim 50 as an “integrally suppressed muzzleloader.” The manufacturer says:“For the first time since the National Firearms Act (NFA) was created in 1934, civilians can enjoy suppressed shooting in all 50 states with SilencerCo’s latest innovation: the integrally suppressed Maxim 50 muzzleloader. In addition, this product can be purchased right now on the web with no regulation (no 4473, no $200 tax stamp, no photographs, and no fingerprints) and be shipped immediately to the customer with few exceptions.” New York is one of those few exceptions, according to the manufacturer. SilenceCo says a prospective purchaser, residing in New York may still obtain the weapon, but must do so, not directly, through interstate commerce, shipped directly to the purchaser’s home, but, indirectly, through a holder of an FFL.

BUT, IS THE MANUFACTURER’S STATEMENT ACCURATE? CAN A NEW YORK RESIDENT, NOT UNDER DISABILITY, PURCHASE THE MAXIM 50, LAWFULLY, THROUGH A LICENSED NEW YORK GUN DEALER EVEN IF THAT NEW YORK RESIDENT CANNOT TAKE POSSESSION OF THE MAXIM 50 THROUGH THE MANUFACTURER, DIRECTLY?

Can a resident of New York, who wishes to purchase the Maxim 50 obtain it, lawfully, then, through an FFL?To begin to answer this question intelligently, we must first ask what sort of thing the Maxim 50 integrally suppressed muzzleloader is, when viewed under federal law and under New York law.Let us look at the Maxim 50 from the standpoint of Federal law, first. Two federal code sections are critical to our investigation: 26 USCS § 5845 (Definitions) of the United States Code of Title 26, Internal Revenue Code, Subtitle E; Alcohol, Tobacco, And Certain Other Excise Taxes; Chapter 53 Machine Guns, Destructive Devices, And Certain Other Firearms; Subchapter B. General Provisions and Exemptions, Part I. General Provisions; and we look to 18 USCS § 921 (Definitions); Title 18, Crimes and Criminal Procedure; Part I. Crimes; Chapter 44. Firearms. We know that the Maxim 50 is a muzzle loader, since the manufacturer of the product describes it as such, and as the manufacturer further explains its nature, in detail, in the product manual, we can rest assured that the Maxim 50 is, in fact, a muzzle loader. The question for us is whether a muzzle loader is a firearm, under federal law. For, if federal law defines the Maxim 50 as a muzzle loader, then that fact is determinative of whether the device--which, as the manufacturer says comes equipped with an integrally suppressed muzzleloader--falls under federal firearms restrictions. We begin with the assumption that the expressions ‘firearm suppressor’  and ‘firearm silencer’ refer, from a legal standpoint, essentially to the same sort of thing. The term ‘silencer’ may be a misnomer to firearms experts, but, as it is that expression, 'silencer,' that is used in federal law and in New York law, rather than the more appropriate expression, 'firearm suppressor,' we need not quibble about the relative inaccuracy of the expression, 'firearm silencer,' when considering the legality of possession of the device by the average law-abiding American citizen. The firearms expert will understand that, to the legislator and to the police, and to the lawyer, the expressions, ‘firearm silencer,’ and ‘firearm suppressor,’ and ‘integrally suppressed firearm,’ or, as in the instant case, ‘integrally suppressed muzzleloader,’ mean pretty much the same thing in respect to what it is that the component is designed to do.

IS THE MAXIM 50 A FIREARM UNDER FEDERAL LAW?

26 USCS § 5845(a) says that, “The term 'firearm' means (1) a shotgun having a barrel or barrels of less than 18 inches in length; (2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length; (3) a rifle having a barrel or barrels of less than 16 inches in length; (4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length; (5) any other weapon, as defined in subsection (e); (6) a machinegun; (7) any silencer (as defined in section 921 of title 18, United States Code); and (8) a destructive device. The term 'firearm' shall not include an antique firearm or any device (other than a machinegun or destructive device) which, although designed as a weapon, the Secretary finds by reason of the date of its manufacture, value, design, and other characteristics is primarily a collector's item and is not likely to be used as a weapon.” 26 USCS § 5845(a). AND,26 USCS § 921(a)(3) says, “The term ‘firearm’ means (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.Through 26 USCS § 5845(a) and 26 USCS § 921(a)(3), it doesn’t appear the Maxim 50 is a “firearm.” But further clarification is necessary. We obtain that clarification in another U.S. Federal Code Section. We ask,

IS THE MAXIM 50 AN ‘ANTIQUE FIREARM’ UNDER FEDERAL LAW?

If the Maxim 50 is an ‘Antique Firearm,” then, under 26 USCS § 5845(a), it is not a ‘Firearm.’ How does federal law define an ‘Antique Firearm?’ The expression ‘Antique Firearm,’ has two definitions. If the Maxim 50 falls under either one of those two definitions, then, the Maxim 50 is an ‘Antique Firearm’ under Federal law.18 USCS § 921(a)(16) says:“The term ‘antique firearm’ means—(A)  any firearm (including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system) manufactured in or before 1898; or(B)  any replica of any firearm described in subparagraph (A) if such replica—(i)  is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition, or(ii)  uses rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the United States and which is not readily available in the ordinary channels of commercial trade; or(C)  any muzzle loading rifle, muzzle loading shotgun, or muzzle loading pistol, which is designed to use black powder, or a black powder substitute, and which cannot use fixed ammunition. For purposes of this subparagraph, the term ‘antique firearm’ shall not include any weapon which incorporates a firearm frame or receiver, any firearm which is converted into a muzzle loading weapon, or any muzzle loading weapon which can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock, or any combination thereof.”AND,26 USCS § 5845(g) says, “The term 'antique firearm' means any firearm not designed or redesigned for using rim fire or conventional center fire ignition with fixed ammunition and manufactured in or before 1898 (including any matchlock, flintlock, percussion cap, or similar type of ignition system or replica thereof, whether actually manufactured before or after the year 1898) and also any firearm using fixed ammunition manufactured in or before 1898, for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade.”The Maxim 50 is, of course, a weapon manufactured after 1898, so it doesn’t qualify as an ‘antique firearm’ under 26 USCS § 5845(g), but, it is a muzzle loader that does in fact use black powder, according to the manufacturer’s instruction manual. And, if we can infer that the Maxim 50 does not incorporate a “firearm frame or receiver” and that it cannot “be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock or any combination thereof,” then it is not a ‘firearm,’ under 18 USCS § 921(a)(16), and that is sufficient to remove the Maxim 50 from the category of ‘firearm’ under federal law.But, wait a second. Even if the Maxim 50 is an ‘antique firearm’ and, hence, not a ‘firearm’ under federal law, isn’t the Maxim 50 a “silencer?” Yes. BUT, the Maxim 50 isn’t a “firearm silencer.” That fact is crucial. But, how do we know this? We know this because federal law makes clear that, since the Maxim 50 isn't a firearm, under federal law, the Maxim 50 isn’t a “silencer” either, under federal law. Once again,18 USCS § 921(a)(3) says, “The term ‘firearm’ means (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm. Since The Maxim 50, as a black powder muzzle loader  with integrally suppressed muzzleloader (silencer), isn't a firearm under federal law, then, by legal implication, the Maxim 50's silencer--more to the point, integrally suppressed muzzleloader--isn't a “firearm silencer,” under federal law, either.But, we still aren’t quite finished with our analysis. We must ask,

IS THE MAXIM 50 DEFINED AS “ANY OTHER WEAPON” UNDER FEDERAL LAW?

But, once again, the answer is, "No." The expression 'Any Other Weapon'--a generic description of 'weapon'--also finds its way in federal law. 26 USCS § 5845(g) says, “The term 'any other weapon' means any weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive, a pistol or revolver having a barrel with a smooth bore designed or redesigned to fire a fixed shotgun shell, weapons with combination shotgun and rifle barrels 12 inches or more, less than 18 inches in length, from which only a single discharge can be made from either barrel without manual reloading, and shall include any such weapon which may be readily restored to fire. Such term shall not include a pistol or a revolver having a rifled bore, or rifled bores, or weapons designed, made, or intended to be fired from the shoulder and not capable of firing fixed ammunition.”The Maxim 50 cannot be readily concealed “on the person,” and, indeed, it isn’t designed to be the sort of implement to be capable of being concealed on the person. So, the Maxim 50 is not defined, in federal law as, ‘any other weapon.’So, under federal law, we conclude that the Maxim 50 isn't a firearm and it doesn't fall under restrictions of the National Firearms Act of 1934, or under restrictions of the Gun Control Act of 1968.So, under federal law, the Maxim 50 doesn’t appear to run into problems under federal law.BUT,What about New York law, specifically. Is the Maxim 50, with integrated suppressor, considered a firearm within the jurisdiction of New York?

DOES THE MAXIM 50 COME UNDER THE PURVIEW OF NEW YORK GUN CONTROL LAWS?

To some extent New York law follows the dictates of federal law, but New York law has its own twists.

IS THE MAXIM 50 DEFINED AS A FIREARM UNDER NEW YORK LAW?

We look to the Consolidated laws of New York for the answer.Let’s look at some definitions under Article 265 (Firearms and Dangerous Weapons) of the Consolidated Laws of New York. NY CLS Penal § 265.00(2) and (3) of Article 265 provide us with two definitions of importance to us here.“2. ‘Firearm silencer’ means any instrument, attachment, weapon or appliance for causing the firing of any gun, revolver, pistol or other firearms to be silent, or intended to lessen or muffle the noise of the firing of any gun, revolver, pistol or other firearms.”“3. ‘Firearm’ means (a) any pistol or revolver; or (b) a shotgun having one or more barrels less than eighteen inches in length; or (c) a rifle having one or more barrels less than sixteen inches in length; or (d) any weapon made from a shotgun or rifle whether by alteration, modification, or otherwise if such weapon as altered, modified, or otherwise has an overall length of less than twenty-six inches; or (e) an assault weapon. For the purpose of this subdivision the length of the barrel on a shotgun or rifle shall be determined by measuring the distance between the muzzle and the face of the bolt, breech, or breechlock when closed and when the shotgun or rifle is cocked; the overall length of a weapon made from a shotgun or rifle is the distance between the extreme ends of the weapon measured along a line parallel to the center line of the bore. Firearm does not include an antique firearm.”The Consolidated laws of New York do not, to the best of our information and belief, define an implement that has the characteristics of the Maxim 50. New York law does define the expression, ‘antique firearm,’ but that definition does not track the federal law definitions.NY CLS Penal § 265.00(16) says, “‘Antique firearm’ means: Any unloaded muzzle loading pistol or revolver with a matchlock, flintlock, percussion cap, or similar type of ignition system, or a pistol or revolver which uses fixed cartridges which are no longer available in the ordinary channels of commercial trade.” Under New York law the Maxim 50 is a muzzle loading device but it isn’t a pistol or revolver.It would appear, at first glance, that the Maxim 50 doesn’t come under the purview of Article 265 (Firearms and Dangerous Weapons) of the Consolidated Laws of New York. But, on closer inspection, it’s clear that the Maxim 50 does come under the purview of Article 265. Let’s look once again at NY CLS Penal § 265.00(2).“2. ‘Firearm silencer’ means any instrument, attachment, weapon or appliance for causing the firing of any gun, revolver, pistol or other firearms to be silent, or intended to lessen or muffle the noise of the firing of any gun, revolver, pistol or other firearms.” The expression, ‘firearm silencer’ refers to “any instrument, attachment, weapon or appliance . . . to lessen or muffle the noise of the firing of any gun. . . .” Pay close attention to the word, ‘gun.’The term, ‘gun,’ is an amorphous concept that can reasonably apply to the Maxim 50. New York law doesn't define the word, 'gun.' It is simply mentioned in New York law. And, we don't see a definition for the word, 'gun,' as such, defined in federal law either. So, we have to go to a common dictionary source to get a handle on the plain meaning of the word. The Merriam Webster Dictionary defines the term, ‘gun,’ as ‘a piece of ordnance usually with high muzzle velocity and comparatively flat trajectory.’ The American Heritage Dictionary, Fourth Edition, defines, the term, ‘gun,’ as ‘A weapon consisting of a metal tube from which a projectile is fired at high velocity into a relatively flat trajectory.’  Clearly enough, the Maxim 50 is a gun under New York law. Since the Maxim 50 is manufactured with an integrated silencer component--as the manufacturer refers to the Maxim 50 as an integrally suppressed muzzleloader--the Maxim 50 does fall under NY CLS Penal § 265.00(2).The drafters of ‘firearm silencer’ clearly and poignantly intended to make firearm silencers unlawful in New York. Case law makes this point clearer still. The Opinion of the Appellate Court of Albany is insightful and is quoted at length in the 1984 New York case, Oefinger vs. New York State Police, 146 A.D.2d 186, 540 N.Y.S.2d 360, 1989 N.Y. App. Div. LEXIS 4881.In Oefinger vs. New York State Police, 146 A.D.2d 186, 540 N.Y.S.2d 360, 1989 N.Y. App. Div. LEXIS 4881, “The Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms denied the gunsmith's request for permission to transfer two machine guns and a firearm silencer to persons who could lawfully possess them in New York. The gunsmith, who was also a dealer, filed an action for a declaratory judgment. The trial court granted the state police's motion for summary judgment and dismissed the complaint. The court modified the trial court's judgment so as to allow a declaratory judgment because such was designed to allow the adjudication of rights before a wrong took place. Thus, the gunsmith did not need to be in danger of prosecution before a declaratory judgment as to his rights could be entered. The court then declared that the gunsmith could not lawfully possess or dispose of firearm silencers and machine guns.  N.Y. Penal Law § 265.00(8), (9) defined a ‘gunsmith’ and a ‘dealer in firearms’ and prescribed the activities in which persons who were duly licensed for those businesses could lawfully engage. Because possession and disposition of a silencer or machine gun were not mentioned in N.Y. Penal Law §§ 265.00(8), (9), 265.02(2), 265.10(3), they were not permissible.”The Appellate Court of Albany said this about the possession of silencers by either a New York licensed dealer or gunsmith: "Penal Law § 265.00 (8) defines a ‘gunsmith’ and Penal Law § 265.00 (9) defines a ‘dealer in firearms.’ “These definitions specifically prescribe the activities in which those persons or entities who are duly licensed for those businesses under Penal Law § 265.20 (a) (10) can lawfully engage.  Applying the rule of statutory construction that states expressio unius est exclusio alterius, 'an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded' (Patrolmen's Benevolent Assn. v City of New York, 41 NY2d 205, 208-209, quoting McKinney's Cons Laws of NY, Book 1, Statutes § 240).  It follows that inasmuch as subdivisions (8) and (9) of Penal Law § 265.00 contain no reference to firearm silencer possession and disposition by a ‘gunsmith’ or a ‘dealer in firearms,’ such possession and disposition are not permissible (Penal Law § 265.02 [2]; § 265.10 [3]).  We find no merit in plaintiff's contention that Penal Law § 265.20 (a) (10) provides an exemption for gunsmiths and dealers in firearms from all of the penalties provided by Penal Law article 265. The exemption provided by Penal Law § 265.20 (a) (10) permits gunsmiths and dealers in firearms to engage only in the activities prescribed in the definitions of those terms in Penal Law § 265.00 (8) and (9), for without such exemption the prescribed activities would be  unlawful. Contrary to plaintiff's claim, however, the exemption cannot be construed to broaden and expand the statutory activities in which a gunsmith or dealer in firearms can lawfully engage.”“By similar reasoning and applying the same statutory rule of construction, a ‘dealer in firearms’ is not authorized to possess or in any other way deal in ‘machine guns’ (Penal Law § 265.02 [2]; § 265.10 [3]).  The definition of ‘firearm’ contained in Penal Law § 265.00 (3) does not include ‘machine guns,’ which are separately defined in Penal Law § 265.00 (1).  Again, contrary to plaintiff's contention, no exemption is provided in Penal Law § 265.20 (a) (10) for a licensed dealer in firearms to possess or dispose of machine guns to any individual who may lawfully possess them.  The activities of licensed dealers in firearms are limited to pistols or revolvers (Penal Law § 265.00 [9]).  As to licensed gunsmiths, the activities permitted by Penal Law § 265.20 (a) (8) in respect to machine guns applies only if they are the [manufacturers]’ of machine guns. Since plaintiff is not such a ‘manufacturer’ of machine guns, the statute has no application to him. Pursuant to Penal Law § 265.00 (8), a licensed gunsmith may engage in certain activities with respect to machine guns, but disposition is not one of those activities.  Plaintiff's other contentions have been considered and found to be without merit.”Under New York law, as interpreted by the Appellate Court of Albany, licensed dealers and gunsmiths are not permitted to transfer machine guns or silencers. Whether the integrally suppressed muzzleloader (silencer) of the Maxim 50 is integrated into a device that is not construed as a firearm under federal law or New York law is, then, decidedly and decisively legally irrelevant.The Maxim 50 is a “gun” under New York law, and since the suppressor (silencer) is integrated into that gun, it is the Arbalest Quarrel’s educated opinion (albeit, not a formal legal opinion), that the Maxim 50 is illegal in New York.FURTHER NOTE:The Arbalest Quarrel has spoken with one licensed gun dealer in New York, and holder of an FFL, who told us that, under no circumstances, would he accept delivery of the Maxim 50 for anyone. And, it is doubtful that a New York resident, not under disability, would be able to locate any conscientious licensed New York gun dealer or gunsmith who would be willing to accept delivery of the Maxim 50 on behalf of a customer, for transfer to that customer. It should go without saying, then, that, under no circumstance should a resident of New York attempt to obtain delivery of the Maxim 50 directly from the manufacturer; for, to do so would be to invite serious criminal repercussions under New York State law. Such attempt to obtain possession of the Maxim 50 in New York would invite unwelcome attention from the BATF as well. Interested parties should peruse the National Firearms Handbook which can be found on the BATF website. Other web pages on the BATF website contain a wealth of information on firearms rules and regulations.To its credit SilenceCo does make clear that “customers from any state should verify they are abiding by all state, local, and federal laws before purchasing.”  Individuals interested in obtaining the Maxim 50 should takes those words to heart.BOTTOM LINE: The Arbalest Quarrel concludes that the Maxim 50, as with “Assault Weapons,” as the expression ‘Assault Weapon’ is defined in the Consolidated Laws of New York, is illegal in New York. Therefore, no New York resident should attempt to obtain one.Whether the Maxim 50 is "legal" in other States requires a separate analysis of each State's own peculiar firearms' laws. The Arbalest Quarrel will analyze other State laws to ascertain whether the Maxim 50 is legal in those States, upon specific request of readers._________________________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.