Pre-ban "assault rifles"

[Puma1337]

I am looking at the NYS laws to purchase a semi-auto rifle. The law states:

"It shall be unlawful to possess any "assault weapon" or a "large capacity ammunition feeding device". So called "assault weapons" lawfully possessed prior to September 14, 1994 and "large capacity ammunition feeding devices" manufactured prior to such date are grandfathered."

Does this mean that it has to be possessed by me prior to that date? Or possessed lawfully by anyone prior to that date. The particular rifle that I am looking at buying is the Colt AR-15 on the classifieds forum. But it also says in the law:

"any of the weapons, or functioning frames or receivers of such weapons, or copies or duplicates of such weapons, in any caliber, known as (i) Norinco, Mitchell, and Poly Technologies Avtomat Kalashnikovs (All Models); (ii) Action Arms Israeli Military Industries UZI and Galil; (iii) Beretta Ar70 (Sc-70); (iv) Colt Ar-15;(v) Fabrique National FN/FAL, FN/LAR, and FNC; (vi) SWD M 10, M-11, M-11/9, and M-12; (vii) Steyr Aug; (viii) Intratec TEC-9, TEC-DC9 and TEC-22; and (ix) Revolving Cylinder Shotguns, such as (or Similar to) the Streetsweeper and Striker 12"

Of course, this doesn't apply to "grandfathered" rifles purchased before 1994.

If anyone could clarify for me, that would be great. I am trying to stay out of trouble here!

 

[RKBA]

NYS AWB

I am trying to stay out of trouble here!

An excellent policy - one to which I subscribe as well!

I'm happy to try to help. Let's assume, for the moment, that you're talking about "somewhere upstate", other than one of the "local AWB" cities (NYC and Rochester for sure, not sure about Albany, Buffalo and a few others). If not, it gets a bit more complicated.

The NY state AWB can be found online by searching for NY Penal Law section 265.00 Definitions - here's an online link to one source for the text: http://law.onecle.com/new-york/penal/PEN0265.00_265.00.html.

Without knowing whether the rifle you're looking at has 1, 2 or 3+ of the "banned features" specified in section (22)(a) of § 265.00, I do know that it is one of the banned-by-name rifles listed in section (22)(d)(iv). This is potentially a knock-out blow, unless the rifle fits into one of the exceptions in (22)(e).

The language in (22)(e)(v) for semiautomatic rifles etc. "lawfully possessed prior to September fourteenth, nineteen hundred ninety-four" has been interpreted to mean "lawfully possessed by someone, somewhere in the U.S.". I can't give you a court case (I don't think it has ever been litigated in NYS), but that is the accepted and settled practice in NYS. (If this ever turns out not to be the case, then they will need to build a bunch of new prisons, fast, to house all of the newly-designated felons with pre-ban rifles and shotguns who thought they were fine in NYS.)

So, the only remaining question is, was the rifle you're interested in made on or before 9/13/94. This is the "pre-ban" or "post-ban" question for NYS. If the seller is marketing the rifle as "pre-ban", then he or she should be able to produce either (i) a letter from Colt stating the pre-9/14/94 date of manufacture, or (ii) a serial number that you can verify places the rifle in the pre-ban manufacture period.

It's worth noting that some unscrupulous sellers will list a rifle for sale as "pre-ban", when what they really mean is that it is a "post-ban" rifle in "pre-ban" configuration (i.e., more than 2 banned features). Such a rifle would be a prohibited "assault weapon" under the NYS AWB. The onus is on you as the purchaser to "get it right" before taking possession in NYS.

As for magazines, as you can see in section (23), the cut-off date for pre- vs. post-ban is the same. Post-ban magazines are limited to 10 rounds in NYS; pre-ban magazines are unlimited. You may use "pre-ban" magazines in "post-ban" pistols and long-guns. (If anyone tells you otherwise, they are misinformed.)

Hope this helps! Happy shopping!

 

[Puma1337]

Wow, that definitely clears things up. Thanks so much!

 

[BMXM15]

To RKBA, How do you know this to be so?

Over all I think you certainly gave a great over view & pretty "CLEAR"! However, let me say or clarify or confuse the matter, as maybe I would think you have over simplified it a bit, or add to some of yours and then let me ask you some of my own questions, which hopefully you have some in put on.

You Wrote "Without knowing whether the rifle you're looking at has 1, 2 or 3+ of the "banned features".
First, If it has only ONE feature then its NOT an "AW" Period! Because it does NOT fall under the Definition of an AW in section (22)(a) of § 265.00. Unless (22)(a) & (d) each one stands alone. Which in fact "one" attorney has actually told me that they first bang you out in (a) and then in (d). However, MANY others have told me not so. That in order to be considered an AW it must first meet the definition in (a). Which it would appear is the way its interpreted and as my own research has yielded this too, from the McKinney's Consolidated Laws of NY Annotated Book 39 Penal Law pg 400, regardless of the "name" or equivalent being on the list it MUST first and for most have 2 or more of the banned features / characteristics! Otherwise there is no longer a category or criteria for ANY pistol grip type weapon to be legal in NYS. Because they still have the same "name" e.g. AR-15, with only one feature a pistol grip but its STILL called an AR-15. And Colt as well as all the other manufacturers are certainly still selling "Post-Ban" configured (with only 1 feature a pistol grip) weapons to NYS non law enforcement residents!

You wrote "The language in (22)(e)(v) for semiautomatic rifles etc. "lawfully possessed prior to September fourteenth, nineteen hundred ninety-four" has been interpreted to mean "lawfully possessed by someone, somewhere in the U.S.". I can't give you a court case (I don't think it has ever been litigated in NYS), but that is the accepted and settled practice in NYS. (If this ever turns out not to be the case, then they will need to build a bunch of new prisons, fast, to house all of the newly-designated felons with pre-ban rifles and shotguns who thought they were fine in NYS.)"

HOW DO YOU KNOW THIS to be the interpretation that possessed means by anyone in the U.S. out of NYS prior to 9/14/1994????? This is the million dollar question??? DOES THAT INCLUDE POSSESSED BY THE MANUFACTURER TOO??? HOW can we find the case law??? There has supposedly been 4 or 5 cases state wide??? Because its different then the NOW expired Federal statute which uses the language of "manufactured" NOT possessed as the NYS law uses prior to 9/14/1994. HOW do you know this to so that when the LAW states "Possessed" its "like" it really says "MANUFACTURED" by 9/14/1994, in other words that it means possessed by "anyone anywhere" in the U.S.????? Moreover, you don't even site ANY case law??? The NYS Legislative History [LH] does in fact say twice the following;
1) "The definition of “assault weapon” and “large capacity ammunition feeding device” mirrors federal law and is not intended to prohibit possession of any weapon that is not prohibited under federal law." and
2) "and the bill is not intended to prohibit possession of any weapon that is not prohibited by federal law."
HOWEVER, the problem with LH is technically a problem to rely on as its really NOT part of the law, it only speaks to "intent" or what some administrative assistant "HACK" of some Senator wrote up of the law but if its NOT in the Legislative Bill nor in the Law itself. McKinney's which is the "accepted" elaboration / explanation of the law DOES NOT say a WORD about this! It therefore leaves it open to first law enforcement and then to a judge's discretion if he/she takes in to account LH or not. Which legally a judge does NOT have to take LH into account as its NOT in & part of the actual law. Although more liberal judges are more inclined to use it but I'll bet HERE they wouldn't, and conservative judges wont cause its not in the law and as US Supreme Court Justice Antonin Scalia holds a Judge SHOULD NOT take LH into account, (and may I add rightly so)!! Then there is an attorney that has told me that LH is only looked at for 1 year after enactment, whatever that means? And that he would interpret it to mean the TYPES of weapons on the list. I DON'T KNOW how his legal mind applies it to one part and not all????? However, certainly case law trumps it, but I would assume ONLY if it applies to the issue at hand!?

I also believe that there is ANOTHER issue with the NYS law. Because the NYS AWB first became law in 2000! Which means then that anyone in NYS who purchased a perfectly 100% legal under BOTH Federal & NYS Law BATF certified "Pre-Ban" Rifle from 9/15/1994 up until the time in 2000 when NYS AWB went in to affect would be in violation as he/she did not possess it prior to 9/14/1994, because NYS back dated the law to the same date as the Federal law was (more then likely out of sheer ignorance on the part of the legislators that were pushing this bill of the BATF certified Pre-Ban prevision). This is more then likely then be a blatant US Constitutional violation of the Ex Post Facto clause (Article I, Section 10). Never mind the many NYS legitimate firearms dealers who still have lets say legitimate pre-ban weapons (with two or more "banned" cosmetic characteristics) and are still selling them at present thereby possibly being entrapment on both, Dealers & civilians!! Then this comes out is WORSE then the California AWB which I would bet is the reason that CA was forced to make the license prevision because otherwise it was Federally unconstitutional because they were seeking confiscation????!!!! So our great legislature and legislators are a BUNCH of ignoramuses!!!

You Wrote "So, the only remaining question is, was the rifle you're interested in made on or before 9/13/94. This is the "pre-ban" or "post-ban" question for NYS. If the seller is marketing the rifle as "pre-ban", then he or she should be able to produce either (i) a letter from Colt stating the pre-9/14/94 date of manufacture, or (ii) a serial number that you can verify places the rifle in the pre-ban manufacture period."

THIS is the Federal / BATF regulation, THE QUESTION IS WHAT ABOUT NYS do they recognize the BATF REGULATION???????

You Wrote "It's worth noting that some unscrupulous sellers will list a rifle for sale as "pre-ban", when what they really mean is that it is a "post-ban" rifle in "pre-ban" configuration (i.e., more than 2 banned features). Such a rifle would be a prohibited "assault weapon" under the NYS AWB. The onus is on you as the purchaser to "get it right" before taking possession in NYS."

CORRECT, MUST get a document from manufacture proving that it was manufactured prior to 9/13/1994. HOWEVER, still must clarify / VERIFY that NYS accepted Federal / BATF REGULATION!! In other words that when the LAW states possessed it means "anywhere" in the U.S. by "anyone" so for all intents and purposes it really means manufactured!!!??? HOW and where can we secure such evidence??????

Another NOTE is that you can make the Rifle conform by ONLY having 1 characteristic! Pistol grip ONLY!! Which means regular stock, cut of the bayonet lug, and then the question is if pinning the flash suppressor is OK?? Because only removing it is NOT enough, as you are left with a threaded barrel which is ALSO NO GOOD!!! ANY INFO on pinning the flash suppressor??? or MUST you replace the Barrel with a non threaded type end????

You wrote "As for magazines, as you can see in section (23), the cut-off date for pre- vs. post-ban is the same. Post-ban magazines are limited to 10 rounds in NYS; pre-ban magazines are unlimited. You may use "pre-ban" magazines in "post-ban" pistols and long-guns. (If anyone tells you otherwise, they are misinformed.)"

NOT SO fast though!!!! NOW that the 1994 Federal Ban has expired or gone to "Sunset" and manufacturers have once AGAIN began to manufacture "high capacity mags" one MUST be VERY careful NOT to possess such in NYS!!! And they are easy enough to track for law enforcement, as opposed to NOT easily trackable by us the end users, because they're no longer dated / stamped I think it was LEO (Law Enforcement Only during the 10 years of the 1994 Clinton Federal AWB)! Unless one is scrupulous and checks with the manufacturer, when they were manufactured, if post 2004 when the 1994 federal ban ended!!! They would have different color followers etc. that the manufacturer / law enforcement will use to determine date of manufacture!!!! So care MUST be taken TOO with magazines as well too!!!!

Hope to hear back from you soon RKBA
Thanks!

 

[RKBA]

Back and forth on interpreting the NYS AWB

Sorry for the delay in responding...let me attempt to answer the questions in the order presented:

Over all I think you certainly gave a great over view & pretty "CLEAR"!

Thanks; just trying to help others make their way through the morass....

First, If it has only ONE feature then its NOT an "AW" Period! Because it does NOT fall under the Definition of an AW in section (22)(a) of § 265.00. Unless (22)(a) & (d) each one stands alone. Which in fact "one" attorney has actually told me that they first bang you out in (a) and then in (d). However, MANY others have told me not so. That in order to be considered an AW it must first meet the definition in (a). Which it would appear is the way its interpreted and as my own research has yielded this too, from the McKinney's Consolidated Laws of NY Annotated Book 39 Penal Law pg 400, regardless of the "name" or equivalent being on the list it MUST first and for most have 2 or more of the banned features / characteristics! Otherwise there is no longer a category or criteria for ANY pistol grip type weapon to be legal in NYS. Because they still have the same "name" e.g. AR-15, with only one feature a pistol grip but its STILL called an AR-15. And Colt as well as all the other manufacturers are certainly still selling "Post-Ban" configured (with only 1 feature a pistol grip) weapons to NYS non law enforcement residents!

Sorry, but (at the risk of coming off like a jerk) that's just plain wrong, and if your reports are true then that's evidence of both bad lawyering and poor English comprehension skills. Sections (a) through (d) of 265.00 paragraph 22 are connected to each other by the word "or", which means that an "Assault Weapon" means either what's in (a) or what's in (b) or what's in (c) or what's in (d), unless one of the exceptions in (e) applies. It is absolutely NOT a two-pronged test in combination with (d), or else it would be worded differently.

That's exactly why the post-1994 model names for many of the enumerated firearms in (d) were changed to remove them from the scope of the named list (for example, the Colt Match Target rifle or any of the other Colt variants). (By the way, it is interesting to note that the "copies or duplicates" language has not been litigated in NYS either (to my knowledge).)

You wrote "The language in (22)(e)(v) for semiautomatic rifles etc. "lawfully possessed prior to September fourteenth, nineteen hundred ninety-four" has been interpreted to mean "lawfully possessed by someone, somewhere in the U.S.". I can't give you a court case (I don't think it has ever been litigated in NYS), but that is the accepted and settled practice in NYS. (If this ever turns out not to be the case, then they will need to build a bunch of new prisons, fast, to house all of the newly-designated felons with pre-ban rifles and shotguns who thought they were fine in NYS.)"

HOW DO YOU KNOW THIS to be the interpretation that possessed means by anyone in the U.S. out of NYS prior to 9/14/1994????? This is the million dollar question??? DOES THAT INCLUDE POSSESSED BY THE MANUFACTURER TOO??? HOW can we find the case law??? There has supposedly been 4 or 5 cases state wide??? Because its different then the NOW expired Federal statute which uses the language of "manufactured" NOT possessed as the NYS law uses prior to 9/14/1994. HOW do you know this to so that when the LAW states "Possessed" its "like" it really says "MANUFACTURED" by 9/14/1994, in other words that it means possessed by "anyone anywhere" in the U.S.????? Moreover, you don't even site ANY case law???

As I wrote in my original post, I can't give you a court case, as I don't think it has ever been litigated in NYS, but I think most who have looked at this topic would agree that this is, indeed, the "generally accepted practice" in NY. If you have actual evidence in the form of verifiable case citations (not internet forum conjecture or "someone told me" or "I overheard at the gun store" or "a cop told me" or "a lawyer told me"), please share it with all of us.

(Yes, I am aware that this thread counts as "internet forum conjecture" and should therefore immediately be disregarded by all readers. )

You Wrote "So, the only remaining question is, was the rifle you're interested in made on or before 9/13/94. This is the "pre-ban" or "post-ban" question for NYS. If the seller is marketing the rifle as "pre-ban", then he or she should be able to produce either (i) a letter from Colt stating the pre-9/14/94 date of manufacture, or (ii) a serial number that you can verify places the rifle in the pre-ban manufacture period."

THIS is the Federal / BATF regulation, THE QUESTION IS WHAT ABOUT NYS do they recognize the BATF REGULATION???????

Not to my knowledge, as I don't believe there are any associated rulemakings around the NYS AWB with regard to verification. NYS law leaves it up to the state to prove the elements of the violation of the law at trial. (However, it is seems safe to presume that the documentation cited above would be persuasive evidence if presented at trial.)

By the way, during the Federal AWB period I think it was BATFE administrative policy and practice to accept manufacturer's letters; I may be mistaken but I don't recall that the practice actually made it into the CFR as a "regulation" per se.

Another NOTE is that you can make the Rifle conform by ONLY having 1 characteristic! Pistol grip ONLY!! Which means regular stock, cut of the bayonet lug, and then the question is if pinning the flash suppressor is OK?? Because only removing it is NOT enough, as you are left with a threaded barrel which is ALSO NO GOOD!!! ANY INFO on pinning the flash suppressor??? or MUST you replace the Barrel with a non threaded type end????

Again, no NY case law to cite to my knowledge, but "generally accepted practice" in NY (and other AWB states) seems to be to replace the "flash suppressor" with a muzzle brake or other cover that is permanently attached via soldering/welding. This met the test for BATFE purposes, and is "generally accepted" as compliant practice.

By the way, who decides what constitutes a "flash hider" for NYS AWB purposes? Is it the name only? Is there a testing protocol to prove whether or not a device constitutes a "flash hider"? What is the testing protocol? Has this ever been litigated in NY? Again, "generally accepted practice" is to follow what BATFE has said in the past, as most (all?) states with active AWBs don't have firearms technical branches to issue opinions on specific products / configurations.

NOT SO fast though!!!! NOW that the 1994 Federal Ban has expired or gone to "Sunset" and manufacturers have once AGAIN began to manufacture "high capacity mags" one MUST be VERY careful NOT to possess such in NYS!!! And they are easy enough to track for law enforcement, as opposed to NOT easily trackable by us the end users, because they're no longer dated / stamped I think it was LEO (Law Enforcement Only during the 10 years of the 1994 Clinton Federal AWB)! Unless one is scrupulous and checks with the manufacturer, when they were manufactured, if post 2004 when the 1994 federal ban ended!!! They would have different color followers etc. that the manufacturer / law enforcement will use to determine date of manufacture!!!! So care MUST be taken TOO with magazines as well too!!!!

I'm not sure I follow your point about the 'track-ability' of standard capacity magazines. Yes, during the Federal AWB most manufacturers changed their stampings (at a minimum) on standard capacity magazines to mark them "Law Enforcement Only" or to otherwise distinguish them from the pre-AWB variety. However, unless the design or stampings or markings on the magazine parts is demonstrably different between pre-1994 and post-sunset magazines, how could anyone tell the difference? Magazine components aren't serialized, and only some have date of manufacture stamps, so (absent such a date stamp) how could a manufacturer verify the pre- or post-1994 status of any given example, unless the construction or markings had a definitive cutoff point that occurred on 9/13/94 and that were never repeated post-sunset? If a manufacturer in 2005 went back to a pre-1994 construction and marking scheme, how could a court distinguish between the two magazines side by side, unless there was a date stamp?

By the way, during the Federal AWB period, BATFE considered the magazine body to be the equivalent of the frame of a firearm - users were "free" to replace magazine springs, followers, etc. on pre-ban standard capacity magazines, so these don't provide definitive evidence of date of manufacture either.


A long answer to a long post, which itself was responding to a long post. I hope this helps to clarify the basis for my assertions (but somehow I suspect that you might not find my answers satisfying). In any case, everyone is ultimately responsible for their own behavior and actions, and I am not in any way suggesting that persons should take actions with which they are uncomfortable. I am not a lawyer, and posts on internet discussion forums should always be viewed with a jaundiced eye, at a minimum. My recommendation: read the statutes and regulations yourself, consult a knowledgeable lawyer if you so choose, and then act with your head and within the boundaries of your conscience and risk appetite.