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.

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.