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

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

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

Introductory Remarks:

New York gun owners have many questions concerning gun transfers in New York, whether through sales or bequests to heirs. This is not a simple matter. We have dealt with this at length in a previous article on gun transfers. But there is much more to discuss, and we hope to get back to that issue in the foreseeable future. However, one aspect of gun transfers is rarely if ever discussed and that has to do with an important component of many firearms, predominately with semiautomatic pistols: the ammunition magazine. It may seem odd that the transfer of ammunition magazines requires discussion at all. After all, unless one is a licensed gun dealer, the notion of transferring parts of guns – gun barrels, gun grips, triggers, hammers, and so forth – makes little sense. The average consumer is interested in purchasing an entire firearm, not a melange of so many separate parts. And, an ammunition feeding device – generally an ammunition magazine – is certainly a critical part of a semiautomatic handgun. A semiautomatic handgun cannot function without one. And, one must be perplexed that a discussion related to the transfer of ammunition feeding devices, apart from a complete weapon’s system, should be necessary at all. But it is. This topic is not only meaningful, it is, in fact, necessary in the context of the New York Safe Act if one is to have a full and complete understanding of the awful consequences of the Safe Act in matters of gun transfers. And that says quite a lot about the very queer nature of the Safe Act.

You will realize just how queer — just how bizarre — the Safe Act is once you have completed reading what we have to say here.

We have divided Part 5, the last part of this multi-series Article on the issue of private property rights and bequests of firearms in New York, into 3 Subparts. Subpart 1 deals with transfers of ‘large capacity ammunition feeding devices.’

Now, what we have to say here applies to all transfers of large capacity ammunition feeding devices. But, apropos of this comprehensive multi-series Article, we are primarily concerned with transfers of guns by way of testamentary bequests by gun owners to their heirs. For, nothing subverts one’s private property interest in his or her firearms more than the idea that one’s last will and testament should be denied effect because some powerful individuals in Government have a personal distaste for firearms and desire to use that power to enact laws that thwart others Constitutional right and interest in their own private property.

Subpart 2 of this multi-series Article deals with the transfer of ammunition by bequest to heirs. And Subpart 3 deals, in pertinent part, with the issue of  transfers and — more particularly — bequests of assault weapons to heirs who are active duty police officers or retired police officers, and who, therefore, may not be considered “ordinary” New York residents and citizens of the United States, at least where gun rights are at stake.

HOW THE NEW YORK SAFE ACT TREATS AMMUNITION FEEDING DEVICES

An ‘ammunition feeding device’ (whether “large” or “small” – which is a subjective matter unless otherwise defined with particularity in the law) means, typically, an ammunition magazine. Now, it may seem odd to have to talk about transfers of ammunition magazines at all. Ammunition feeding devices, including ammunition magazines, are, after all, an essential and integral component of semiautomatic handguns and they are an essential and integral component of many rifles and of a few shotguns as well.

A testator bequeathing a semiautomatic handgun to an heir wouldn’t reasonably think of bequeathing the weapon without the weapon’s accompanying ammunition magazine. And, the heir, as the intended recipient of a weapon, would certainly expect to receive all component parts of that weapon. Otherwise, obviously, the firearm is useless as a firearm, so that, if it were to have any use at all as a defensive weapon, one might consider using it as a club — an expensive one at that — and nothing more.

Why, then, are we discussing the transfer of ammunition feeding devices at all since such devices are clearly a critical component of many small arms? We are doing so because the New York Safe Act treats ammunition feeding devices as a separate component of weapons – a very odd idea to contemplate but one that must be contemplated nonetheless, and appropriately dealt with.

Treating a weapon and the components of a weapon as two distinct things creates an odd set of circumstances for the law-abiding New York gun owner and odd issues arise from those circumstances that have to be resolved if the New York gun owner is to hope to avoid incurring serious misdemeanor charges. And that point gets to the crux of the problem with the New York Safe Act: You may have a weapon the Safe Act doesn’t ban, but you may also have, at one and the same time, the weapon’s ammunition feeding device that the Safe Act does ban. This isn’t mere supposition, as you shall see.

Again, keep in mind: we are not talking here about weapons banned by the Safe Act. The Safe Act does, of course, ban outright weapons it defines as assault weapons. That, we all know. A New York resident and citizen of the United States cannot currently own — that is to say, cannot at the present time own lawfully — a weapon defined as an ‘assault weapon’ under the New York Safe Act unless that weapon was grandfathered in and timely registered as an assault weapon. The expression ‘grandfathered in’ means here that a New York resident who lawfully came into possession of an ‘assault weapon’ prior to enactment of the New York Safe Act, on January 15, 2013, may continue, lawfully, to possess the assault weapon, subsequent to the effective date of enactment of the Safe Act, namely, subsequent to January 15, 2013, so long as that gun owner timely and properly, registered it, namely, so long as that gun owner had, in fact, timely and properly registered it on or before April 15, 2014, as that date has come and gone. If the owner of an assault weapon has not timely and properly registered it on or before April 15, 2014, that gun owner is in unlawful possession of a banned firearm.

But, assuming the original owner of a firearm defined as an assault weapon under the Safe Act — lawfully possessed that weapon prior to the date of enactment of the NY Safe Act — and, assuming, further, that the original owner of the assault weapon did in fact timely and properly register it so that, at this particular point in time, the gun owner is, in fact, in lawful possession of a firearm that is otherwise banned by the Safe Act, and, so, can continue to lawfully possess that assault weapon, still, that owner cannot, unfortunately, transfer the weapon to his or her heirs even if those heirs are otherwise eligible to own and possess firearms, unless the heirs are exempted from the ban on possession of assault weapons. Those New York residents who are exempted from the ban on possession of assault weapons include licensed New York gun dealers — a very small number of New York residents to be sure.

Moreover, the effect of allowing the original owners of assault weapons alone to continue to own assault weapons so long as they wish, or, otherwise, so long as they live — means that ownership of and possession of those weapons cannot extend to the original owners’ heirs. The drafters of the Safe Act undoubtedly intended to preclude the lawful ownership and possession of assault weapons in New York to extend beyond the original, first generation owners of them. The goal of proponents of the Safe Act is, then, to bring about the extinction of weapons defined as assault weapons from the landscape of New York within 50 years or so — after the last lawful New York resident and owner of an assault weapon dies and the weapon or weapons is surrendered to the appropriate Government official for transfer to someone out-of-State or, otherwise, is surrendered to the appropriate Government official for no other purpose than for destruction.

Similarly, a New York resident and gun owner who lawfully came into possession of a “large capacity ammunition feeding device” prior to enactment of the Safe Act may continue to possess that device, but he or she cannot lawfully transfer it to another law-abiding eligible New York resident in the State, including an heir, unless, once again, the heir is also a licensed gun dealer or falls under another exemption. As with firearms defined as assault weapons, the goal of proponents of the Safe Act is to bring about the extinction of large capacity ammunition feeding devices from the landscape of New York within 50 years or so — once again, after the last lawful owner of such a device dies.

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

Section 37(H) of the New York Safe Act, as codified in Subdivision 22 of Section 265.00 of the Penal Code, namely, NY CLS Penal § 265.00(22)(h) bans the transfer of large capacity ammunition feeding devices. NY CLS Penal § 265.00(22)(h) says: “Any weapon . . . and any large capacity ammunition feeding device that was legally possessed by an individual prior to the enactment of the chapter of the laws of two thousand thirteen which added this paragraph, may only be sold to, exchanged with or disposed of to a purchaser authorized to possess such weapons or to  an individual or entity outside of the state provided that any such transfer to an individual or entity outside of the state must be reported to the entity wherein the weapon is registered within seventy-two hours of such transfer. An individual who transfers any such weapon or large capacity ammunition device to an individual inside New York state or without complying with the provisions of this paragraph shall be guilty of a class A misdemeanor unless such large capacity ammunition feeding device, the possession of which is made illegal by the chapter of the laws of two thousand thirteen which added this paragraph, is transferred within one year of the effective date of the chapter of the laws of two thousand thirteen which added this paragraph.”

Now, NY CLS Penal § 265.00(22) talks specifically about banned weapons, namely weapons defined as assault weapons under Section 37(A through F) of the New York Safe Act, as codified in Subdivision 22(a through f) of Section 265.00 of the Penal Code, namely, NY CLS Penal § 265.00(a through f); and those Sections of the Safe Act must be read in conjunction with Section 37(H) of the Safe Act as codified in NY CLS Penal § 265.00(22)(h). Be advised, failure to comply with these obligatory Sections will subject the New York gun owner to a Class A misdemeanor charge. And, if that happens, the gun owner will lose his or her handgun license and, where applicable, namely, in New York City, the gun owner will lose his or her rifle and shotgun permit as well. That means the gun owner will can no longer lawfully own and possess firearms in New York.

But, we are not discussing here the ramifications of the New York Safe Act on those who are in lawful possession of assault weapons, who wish to lawfully dispose of them. The weapons we are talking about here are permitted weapons under the Safe Act. But, many ammunition feeding devices – specifically, “large capacity ammunition feeding devices” manufactured with the weapon, are not. Those devices are banned under the Safe Act. How do we know this? We know this because the NY Safe Act says so. The Safe Act, as we have seen, specifically, in Section 37(H) of the New York Safe Act, as codified in Subdivision 22 of Section 265 of the Penal Code, namely, NY CLS Penal § 265.00(22)(h), explicitly and categorically tells the gun owner that “large capacity ammunition feeding devices” are banned in New York.

The Safe Act incongruously views a weapon and the ammunition feeding device as two separate devices – not as an integrated whole weapon. We explain. But, first:

WHAT IS A LARGE CAPACITY AMMUNITION FEEDING DEVICE?

A large capacity ammunition feeding device – typically an ammunition magazine – is a legal fiction, just as the notion of an ‘assault weapon’ is a legal fiction. A large capacity ammunition feeding device is a legal fiction created by the drafters of the Safe Act. The drafters of the Safe Act, obviously enough, created this legal fiction to further whittle down the number and kinds of weapons a gun owner might lawfully own and possess.

The New York Safe Act defines a ‘large capacity ammunition feeding device’ in Section 38 of the New York Safe Act. Section 38 of the Safe Act is codified in subdivision 23 of Section 265.00 of the Penal Code of New York, namely, NY CLS Penal § 265.00(23). NY CLS Penal § 265.00(23) sets forth, in critical part: “Large capacity ammunition feeding device means a magazine, belt, drum, feed strip, or similar device that . . . has a capacity of, or that can be readily restored or converted to accept, more than ten rounds of ammunition.”

What does this Section of the New York Safe Act tell us? Section 38 of the Safe Act as codified in subdivision 23 of Section 265.00 of the Penal Code of New York, namely, NY CLS Penal § 265.00(23), tells us that an ammunition feeding device that is capable of holding more than 10 rounds of ammunition is, by law, a banned and, therefore, illegal device. Granted, a large capacity ammunition feeding device isn’t a weapon itself; it is simply a component of a weapon – a critical component to be sure, but a critical and banned component nonetheless.

Now, be aware what NY CLS Penal § 265.00(23) does not say. NY CLS Penal § 265.00(23) does not say – nor does it suggest – that it is legal to own and possess a large capacity ammunition feeding device so long as a person keeps fewer than 10 rounds in it. No. The Safe Act makes abundantly clear — and it is enough — that merely possessing a “large capacity ammunition feeding device” is illegal if the gun owner happens to gain possession of it subsequent to enactment of the Safe Act. So, that large capacity ammunition feeding device can be empty. Your possession of it under NY Safe is still illegal, whether the magazine is completely filled with cartridges, partially filled with ammunition, or is, simply, completely empty.

But, is there such a thing, under New York law, of a weapon that is legal to own – that isn’t also an assault weapon under the Act – but comprises a component part that is itself illegal? The answer is: Yes!

Now, to prove our point, let’s consider a firearm that a New York resident and citizen of the United States can lawfully possess and transfer to eligible recipients in New York – including, then, a weapon that a gun owner can transfer lawfully to one’s eligible heirs – but one that incorporates a large capacity ammunition feeding device that cannot be lawfully transferred to a New York resident and citizen of the United States, unless, again, that New York resident and U.S. citizen falls within a specific exemption in the law.

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

One good example of a semiautomatic handgun that the Safe Act does not ban is the popular Glock 17. As the name suggests, the Glock 17 has a magazine that holds 17 rounds of 9x9mm cartridges.

The Glock 17, sans the 17 round magazine, is perfectly legal for an eligible New York resident and U.S. citizen to own and possess. That means the Glock 17 is not defined as an assault weapon under the Safe Act. How do we know that? Well, let’s take a look at what the New York Safe Act says.

Section 37(C) of the Safe Act is codified in subdivision 22 of Section 265.00(22)(c) of the Penal Code of New York, namely, NY CLS Penal § 265.00(22)(c).  That Section, NY CLS Penal § 265.00(22)(c), says, “Assault weapon” “means a semiautomatic pistol that has an ability to accept a detachable magazine and has at least one of the following characteristics: (i) a folding or telescoping stock; (ii) a thumbhole stock; (iii) a second handgrip or a protruding grip that can be held by the non-trigger hand; (iv) capacity to accept an ammunition magazine that attaches to the pistol outside of the pistol grip; (v) a threaded barrel capable of accepting a barrel extender, flash suppressor, forward handgrip, or silencer; (vi) a shroud that is attached to, or partially or completely encircles, the barrel and that permits the shooter to hold the firearm with the non-trigger hand without being burned; (vii) a manufactured weight of fifty ounces or more when the pistol is unloaded; or (viii) a semiautomatic version of an automatic rifle, shotgun or firearm.”

Let’s first look at and apply the above definition of an assault weapon. The definition of a handgun that is also an assault weapon under the Safe Act is also the test you use to determine whether your own handgun is also an assault weapon and therefore a banned weapon under the Act. So, let’s see if a stock Glock 17 that is manufactured to be sold in the civilian market is an assault weapon under the Safe Act.

According to the manufacturer’s website, a stock Glock 17 weighs 25.06 ounces unloaded. It does not have a folding or telescoping stock; nor does it have a thumbhole stock. It does not have a second handgrip or a protruding grip that can be held by the non-trigger hand. It does not have the capacity to accept an ammunition magazine that attaches to the pistol outside of the pistol grip. Moreover, a stock Glock 17 does not have a threaded barrel capable of accepting a barrel extender, flash suppressor, forward handgrip, or silencer. Lastly, a stock Glock 17 that is designed for the civilian market is not sensibly a semiautomatic version of an automatic rifle, shotgun or firearm, whatever that means.

So, we can conclude with reasonable certainty, that a stock Glock 17 as designed for the civilian market is not an assault weapon under the Safe Act. An eligible New York resident and U.S. citizen can therefore lawfully own one. And you will note, there is nothing in the definition of a pistol that is also an assault weapon that talks about magazine capacity. But, Section 38 of the Safe Act as codified in subdivision 23 of Section 265.00 of the Penal Code of New York creates a problem for the New York gun owner who lawfully owns and possesses a Glock 17 and wishes to transfer the gun to another eligible New York resident and citizen of the United States. For, NY CLS Penal § 265.00(23) says that it is unlawful for a New York resident to lawfully possess an ammunition feeding device that is capable of holding more than ten rounds of ammunition if that eligible New York resident happened to come into possession of that ammunition feeding device after enactment of the Safe Act.

What all this boils down to is this: If you are a New York resident and U.S. citizen that lawfully came into possession of a stock Glock 17 semiautomatic pistol with, reasonably enough, the stock ammunition magazine that was manufactured with and for the Glock 17, prior to enactment of the New York Safe Act, and you wish to transfer that Glock 17 semiautomatic pistol to another eligible New York resident and citizen of the United States, you are permitted, under the Safe Act, to do so and that includes, of course, a transfer of the weapon to your heir by testamentary bequest.  But, what you cannot do– what you are absolutely forbidden from doing – is attempt to transfer to an otherwise eligible New York resident and U.S. citizen, including, particularly, your eligible heir who also resides in New York – the 17 round capacity ammunition magazine that came with the weapon, unless that New York resident is also a licensed New York gun dealer or is otherwise exempted from the applicable provisions of the Safe Act.

Again, you can only lawfully transfer that 10+ ammunition magazine to a New York resident and U.S. citizen who happens to be exempted from the applicable provisions of the Safe Act, such as a New York licensed gun dealer, or you can lawfully transfer that 10+ round capacity ammunition magazine to an eligible recipient who resides outside the jurisdiction of New York, or you can simply surrender that device to the appropriate official for destruction.

As you can see, the New York Safe Act is horribly convoluted, ill-conceived, poorly drafted, and wrongly enacted. That the New York Safe Act exists and operates in New York at all says much about some – all too many – New York Legislators’ and Government Officials’ who wanted it, who campaigned for it, and who show, even to this present moment in time, a marked contempt for and condescending attitude toward New York residents and citizens of the United States who wish merely to exercise their sacred Second Amendment right to keep and bear arms.

In Subpart 2 of Part 5 of this multi-part series Article, that we will present to you shortly, we look at the issue of ammunition. Can ammunition be lawfully transferred from one eligible New York gun owner to another or do strict controls exist in New York on the transfer of ammunition from one New York resident and U.S. citizen to another? Little if anything is said about this. We carefully examined the laws of New York. The answer may surprise you.