Gun laws in New York

Location of New York in the United States

Gun laws in New York regulate the sale, possession, and use of firearms and ammunition in the state of New York in the United States.

New York Civil Rights Law art. II, § 4 provides that "[a] well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms cannot be infringed."

New York State Law does not require a hunting license to own or possess long guns or pistols. New York State Law does require a permit to own/possess a pistol. New York State Law does not require a permit to own or possess a long gun unless it falls under the definition of assault weapon. In 2013 New York State banned the sale and possession of assault weapons (guns that have certain features) NY SAFE Act. New York City has its own set of laws and requires permits to own any long gun or pistol.

The Supreme Court of the United States DC v. Heller 554 U.S. 570 (2008) has ruled that "the right to bear arms" is an individual right and arms in common use are protected under the Second Amendment, and has further ruled that this right applies to residents in individual states in McDonald v. Chicago 561 U.S. 742 (2010).

In a 2012 ruling a federal appeals court upheld New York state’s law requiring gun owners who seek a concealed-weapon permit to prove a special need for protection; their decision in Kachalsky v. Westchester held that New York law does not violate the Second Amendment right to keep and bear arms.

Overview

New York is generally perceived to be highly restrictive for purchasing, possessing, or carrying firearms. This is especially the case for New York City and its surrounding suburbs, and larger urban centers throughout the state where most New Yorkers live and work. In contrast, most rural areas in New York have relatively permissive firearms policies, particularly with respect to concealed carry.

Most New York State gun laws are covered in two sections of New York Penal Law: Article 265 - Firearms and Other Dangerous Weapons; and Article 400 - Licensing and Other Provisions Relating to Firearms. These laws ban handgun possession and provide exemptions, including individuals licensed to carry handguns, or to possess them for other reasons, including sports, repair, or disposal. As the law's title indicates, New York's restrictive laws also apply to other items regarded as deadly weapons, such as certain knives, clubs, throwing stars, chemical sprays, explosives, rockets, fireworks and stun guns.

Statewide, New York enforces various firearm related prohibitions, many proscriptions similarly listed in the now-expired Federal Assault Weapons Ban.^[1][2][3] On January 15, 2013, the state assault weapons ban was made more restrictive by the NY SAFE Act. Specified rifle magazines are banned: a) manufactured after 1994; and b) the magazine holds in excess of 10 rounds (handguns included). (in December 2013 a federal judge ruled the seven-round magazine limitation as "'tenuous, straitened, and unsupported,' and therefore unconstitutional.". Any semi-automatic rifle (with a detachable magazine) or shotgun(non-pump) with just one of these features are banned: 1) pistol grip; 2) bayonet lug; 3) telescoping or folding stock; 4) flash suppressor; 5) threaded barrel; or 6) grenade launcher.^[4][5][6] The SAFE Act expanded the ban to add the following features: 7) muzzle brake (Dec 2014 Federal court All references to muzzle "brake" be stricken); 8) muzzle compensator; 9) thumbhole stock; and 10) foregrip.^[7] All semi-automatic versions of assault-style rifles and shotguns purchased prior to January 15, 2013 are grandfathered, but must be registered within one year of the SAFE Act passage.^[8]

Enforcement of New York's firearms laws varies significantly throughout the state. Authorities in and around New York City, Long Island and other urban centers treat violations of state and local firearms laws as strict liability offenses, and will normally arrest and prosecute anyone found illegally possessing or carrying a firearm regardless of actual intent, as will the New York State Police for anywhere in New York. In contrast, local law enforcement officials in rural upstate jurisdictions will only arrest and prosecute someone for unlawful weapons possession if there is clear demonstration of malicious intent.

Case law in New York has established that a presumption of malicious intent exists for those found unlawfully possessing firearms, regardless of actual intent. Because of this, an individual simply possessing a firearm in an improper manner would have to resort to an affirmative defense to felony weapons charges, making it difficult to win an acquittal in court by placing the burden of proof on the defendant to show his or her intent in unlawfully possessing a firearm was not malicious. New York law also prescribes minimum mandatory prison terms for individuals found guilty of various weapons-related charges. Judges have little to no discretion to reduce prison sentences for firearms-related convictions, even after considering mitigating factors and other circumstances in such cases.

As a result of the 1911 Sullivan Act and the broad home rule powers granted to local jurisdictions by New York State's Constitution, New York is a May-Issue state, in that the individual licensing official (typically a local police chief or sheriff) has discretion to issue a license or permit to possess handguns, or carry a concealed firearm. In practice, local policies for granting CCW permits to qualified applicants varies from No-Issue in New York City, its suburbs and other urban centers around the state to Shall-Issue in rural counties. The licensing authority may require the licensee go through firearms training and education, or dictate the conditions under which a permit holder can possess handguns or carry a concealed weapon. Permits issued in New York are valid statewide, except in the city of New York, unless validated by the police commissioner of that city. A New York City concealed carry license is valid throughout New York State. NY Penal Code 400 (6).^[9][10]

The varied New York licensing and permit authorities has resulted in confusing handgun licensing policies, which a licensee must nevertheless abide by when outside the jurisdiction of permit issuing authority. For example, regardless of license, all New York residents with a concealed carry permit must still obtain a New York State pistol license, apply for a purchase document for each handgun purchased, and may possess only those handguns the license holder has registered with the state.^[5][6]

Of all the states that issue carry pistol licenses, New York State has arguably the strictest handgun licensing policies in the nation.^[11] New York City has even stricter laws, including those regulating firearms exclusively kept at home, thereby making it difficult to virtually impossible for ordinary citizens to obtain, possess, or carry firearms lawfully within New York City. In effect, New York City's restrictive firearms policies amount to a near-total ban on the acquisition, transport or possession of firearms by average citizens who reside in the city.^[12] Permits have been issued, however, to a small number of celebrities, politicians, attorneys and other well-connected individuals. The combined non-refundable fees required to apply for a New York City concealed carry permit average around $5,000, with no guarantee the applicant will actually be issued a permit.

The constitutionality of many of New York's restrictive firearms laws, including the newly enacted SAFE Act, are being challenged by lawsuits at the state and federal levels. Most of these laws have so far survived legal challenge, as judges overseeing such lawsuits have applied intermediate scrutiny, a lower standard of legal review than strict scrutiny where the court recognizes the government may enact laws that constrain a constitutional right to further an important government interest. In the case of New York's firearms laws, court rulings have largely upheld the core provisions of these laws on the basis that the government's interest in public safety justifies laws that regulate the individual right to keep and bear arms under the Second Amendment of the United States Constitution.

Summary table

NOTE: Different laws in New York City (see below)

Handgun licensing

Overview

The purchase of a handgun in New York State is limited to only those individuals who hold a valid Pistol Permit issued by a county or major city within New York State and present to the seller a purchase document, issued by the licensing authority, with the specific make, model, caliber and serial number of the handgun indicated on the document. The possession of a handgun in New York State is limited only to those individuals who hold a valid pistol license and are in possession of a registered handgun (one that appears on the license, indicating the specific make, model, caliber and serial number of the handgun). The carry of a handgun in New York State is limited only to those individuals who hold a valid pistol license, possess a registered handgun, and are carrying said handgun in compliance with the restrictions as they appear on the license and other applicable state and federal law.^[5][6][14]

New York State pistol licenses are not issued to out-of-state residents.^[14] However, New York will issue pistol licenses to part-time residents. New York does not honor licenses or permits from any other states, though some states will recognize New York licenses without a formal agreement.^[15]

Application

Application for a handgun license is through the individual's county or major city of primary residence, usually the police/sheriff's department, or a separate licensing authority. In NYC, the licensing authority is the police commissioner. In Suffolk and Nassau counties, the licensing officer is the county police commissioner or county sheriff, depending on where one resides. the licensing authority is a county court judge, or more rarely, a supreme court judge. State and FBI criminal records, along with state mental health records, are checked as part of the licensing process. In addition, the applicant will be required to ask friends or associates to act as personal references. These individuals may be required to fill out forms, varying in length by county, attesting to the applicant's 'good character.' Pistol licenses can take from less than four months to more than six months for approval, even though N.Y. law allows the licensing authorities no more than six months to process a license.^[14]

Types of licenses and restrictions

There are two types of NYS pistol permits, possess on premises and concealed carry. Concealed carry permits may be restricted, but restrictions do not have the force of law. Permits issued outside of NYC are not valid in NYC, unless a special license is issued granting validity.^[16]

In addition to laws pertaining to the entire state of New York, there are additional laws and statutes pertaining to licensing and permits in some of the major cities of the state.^[17] However NY City is the only place a pistol license is restricted from Carrying and must have an uninterrupted trip through the city with the gun and ammo locked up separately when traveling through NY City. Pistol licenses are generally of two types: carry or premises-only.^[14] "Premises-only" is the most common license issued in New York City and is supposed to be "Shall-Issue."^[18] Restrictions can be placed on either of the above types of licenses; for example, many jurisdictions allow handgun license holders to carry handguns only while hunting (i.e. sportsman's license) and/or traveling to and from the range (i.e. target license).^[14]

Regional and cultural differences throughout the state

Restrictions on New York State handgun licenses vary greatly from jurisdiction to jurisdiction. In contrast to "no carry" New York City, and some counties which only issue "to and from target shooting and hunting" licenses, many upstate New York counties issue unrestricted pistol licenses that allow unrestricted concealed carry of a loaded handgun (except for exceptions such as schools, court houses/rooms, secure areas of airports).

This dichotomy in New York State handgun license policies (upstate rural/downstate urban) is an outgrowth of two specific cultural forces: the strength of home rule in New York State, and the tradition of the various hunting seasons in the rural counties.

Assault weapons

NY state law defines an assault weapon as:

• Semi-automatic rifles able to accept detachable magazines and one or more of the following:
  • Folding or telescoping stock
  • Pistol grip
  • Bayonet mount
  • Flash suppressor, muzzle brake, muzzle compensator, or threaded barrel designed to accommodate one^[7]
  • Grenade launcher (more precisely, a muzzle device that enables launching or firing rifle grenades, though this applies only to muzzle mounted grenade launchers and not those mounted externally).
  • Thumbhole stock^[7]
  • A second handgrip or a protruding grip that can be held by the non-trigger hand^[19]

• Semi-automatic pistols with detachable magazines and one or more of the following:
  • Magazine that attaches outside the pistol grip
  • Threaded barrel to attach barrel extender, flash suppressor, handgrip, or suppressor
  • Barrel shroud that can be used as a handhold
  • Unloaded weight of 50 oz (1.4 kg) or more
  • A semi-automatic version of a fully automatic firearm.
  • A folding, telescoping or thumbhole stock^[20]
• Any revolving cylinder shotgun or any semi-automatic shotguns with one or more of the following:
  • Folding, telescoping or thumbhole stock
  • A second handgrip or a protruding grip that can be held by the non-trigger hand
  • Fixed magazine capacity of more than 7 rounds^[20]
  • Ability to accept a detachable magazine.

"Large capacity feeding device" is any belt, drum, strip, magazine, or similar instrument used to feed ammunition into a firearm that has a capability of holding more than seven rounds. (NOTE: Legal to possess magazines that hold ten rounds, but can not load more than seven in them unless target shooting or hunting.) ^[21]

Exceptions

The first exception for the previous assault weapons ban is that anything classified above is not an assault weapon if manufactured before September 13, 1994. However, with the new laws there are no exceptions.

New York state resident police officers may still own assault weapons and high capacity magazines. Retired police officers may also own assault weapons and high capacity magazines if they acquired them during the course of their career.^[22]

Military members stationed within New York state may still bring assault weapons into New York, provided the military member has approval from his or her command.

New York City

Residents of New York City who wish to obtain a pistol license must apply through the New York Police Department License Bureau at One Police Plaza in lower Manhattan.^[23] The choice of licenses are: Unrestricted Concealed Carry License, Restricted Business Carry License, and Restricted Premises-only License.^[23] NYC Unrestricted Concealed Carry Licenses are valid throughout the rest of the state. Security Guards and business people who regularly carry valuables may be issued a Restricted Business Carry License which is valid only while conducting the business specifically as it was described, in great detail, on the application for the license. NYC premises-only licenses are the licenses issued to average citizens who cannot show a need for self-defense greater than any another average citizen. They are clearly marked: RESTRICTED - NOT FOR CARRY and require the licensee to obtain special permission from the NYPD License Bureau to leave the city with the handgun, unless hunting with a valid hunter authorization card. Most licenses issued in New York City are for on-premises possession only, for self-defense within the home or business. Transporting the handgun to and from a target range is permitted, but the firearm must be unloaded and in a locked container directly to and from a range within city limits. Traveling through New York City with a license issued from another jurisdiction within New York State must be done in accordance to law (locked box, in vehicle's trunk, no unnecessary stops).^[5][6][23]

A person carrying a firearm without a valid permit in New York City could be charged with "criminal Possession of a Weapon in the Second Degree," a felony. Unlawfully carrying a firearm in New York City is typically punishable by a prison term of 3 1/2 years. A high-profile example of the penalties associated with New York's restrictive gun laws is the 2-year prison sentence served by former New York Giants player Plaxico Burress, after pleading guilty to a charge of Unlawful Possession of a Weapon, stemming from his accidentally shooting himself in the leg at a New York City nightclub with a concealed handgun, for which he did not have a valid New York City concealed carry permit.

New York City's firearms policies require that special permission must be obtained from City Hall for military members to carry weapons while performing their official duties within the city limits. For example, in November 2012, then-mayor Michael Bloomberg denied a request by the New York National Guard for its members to carry service weapons to help maintain order in devastated parts of the city in the aftermath of Hurricane Sandy, calling the presence of armed service members in Brooklyn "a bad idea," and further stating, "The NYPD is the only people we want on the street with guns."^[24] New York City's gun laws are currently being challenged by the New York State Rifle and Pistol association in Federal Court, claiming the laws infringe on second amendment rights.^[25]

NYC ordinances and NYS law also require medical facilities to notify the New York Police Department within a specified period of time after admitting anyone with gunshot wounds. Hospitals or clinics that fail to comply with this requirement face fines and other penalties.

Rifles and shotguns, antique handguns

Prior to January 15, 2013, rifles deemed assault-style did not have to be registered in any jurisdiction within New York State except for New York City.^[5][6] Since enactment of the New York Safe Act, all grandfathered operable assault-style rifles purchased prior to January 15, 2013, must now be registered. The deadline to register these weapons was on or before January 14, 2014. New York City requires registration and has additional restrictions such as they cannot take a detachable magazine having a capacity greater than five rounds.^[12] Laws pertaining to the handling of rifles are in sharp contrast to those of handguns. For example, licensed carry of a handgun on one's person allows the handgun to be fully loaded, including within an automobile, while visiting a place of business or while crossing a public road while hunting. A rifle or shotgun cannot be kept loaded in any of the above circumstances except for a self-defense emergency.^[26] Antiques and replica handguns must be registered to be legally loaded and fired.^[27]

Non-resident travel through N.Y.

New York state law provides restricted exceptions for interstate transportation of firearms by non-residents. Non-residents may transport through New York State any lawful firearm to any place outside of New York where an individual may lawfully possess and carry such firearm.

While in transit within New York State, the firearm must be unloaded. The firearm and any ammunition for it must not be easily accessible by anyone in the vehicle's driver or passenger area. For example, the gun and ammunition must be kept in the storage area of the vehicle, such as a car's "trunk." In vehicles without a storage area separate from the driver or passenger compartment, the firearm or ammunition shall be contained in a locked container other than the glove compartment or console.".^[28] You may also transport a firearm for target competition purposes, "by a person who is a member or coach of an accredited college or university target pistol team" and "while attending or traveling to or from, an organized competitive pistol match or league competition under auspices of, or approved by, the National Rifle Association and in which he is a competitor, within 48 hours of such event or by a person who is a non-resident of the state while attending or traveling to or from an organized match sanctioned by the International Handgun Metallic Silhouette Association and in which he is a competitor, within 48 hours of such event."^[29]

Federal protections

New York State is of particular concern to interstate motorists who travel with firearms, because New York separates all of New England from the bulk of the United States. This means that under the Firearm Owners Protection Act (FOPA), all people traveling through New York City and New York state with firearms are protected by federal law, however they must have their firearms unloaded and locked in a hard case where they are not readily accessible (e.g. in the trunk of a vehicle).^[30]

Even with federal protections for those who properly secure their firearms and ammunition while transiting through New York, some police agencies in New York (notably the New York State Police and the New York Police Department) do not recognize the federal Firearm Owners Protection Act, and may still detain or arrest travelers, and place such travelers in a situation where they have to reference FOPA as an affirmative defense to criminal charges in court proceedings.

Miscellaneous laws

Gun shows: New York State requires that anyone buying a gun at a gun show must pass a background check.^[5][6]

Youth and firearms: Youths between ages 14 and 21 may shoot a handgun at a range only if they are under the supervision of a military officer or licensed professional, have not been convicted of a felony, and do not seem to be a danger to themselves or others.^[31]

State assault weapons ban: New York State has a ban that is the most restrictive in the country.

Cross registration of handguns: Some counties limit who can register a handgun on their license, with some allowing cross registration of a handgun from any other licensee, to licensed family members only, to no handgun can be cross registered. N.Y. law does not address this issue. Sharing use of a handgun not listed on your license is only allowed at a certified range with the licensed handgun owner present.^[32]

Examples of local laws: New York City, for example, limits the color of all guns and bans all BB Guns, paintball guns and pellet guns.^[12] Yonkers requires a handgun license before one may ask for a license to own a BB/Pellet handgun.

Renewal fees: There are periodic renewal fees, including on restricted carry licenses, like NYC's $340 for a three-year license.^[33] Nassau, Suffolk, Westchester and several other suburban counties allow a "to and from the range only" form of concealed carry. However this restriction carries no weight of law and penalties for violating such are administrative in nature and not criminal. "A State cannot impose a license, tax, or fee on a Constitutionally protected Right," see, Murdock v. Penn 319 US 105 (1942); Further, "The SCOTUS has HELD that licensing and registration of ANY Constitutional Right is itself UNCONSTITUTIONAL," 321 US 573 (1944) (emphasis added for clarification). The Right to self-defense is a "central component" of the 2d Amendment, see, McDonald v. City of Chicago (SC 2010). The Right to "keep and bear arms" is both a fundamental and "individual right" and no State may abrogate these rights nor infringe upon them. California v. Ramos, 463US 992, 1014, 103 SCt 3446, 77 Led 2d 1171 (1983) supra., "State Law cannot reduce...a State cannot restrict the Right guaranteed in 'full incorporation' and the Bill of Rights is BINDING on Government." McDonald, supra. Periodic renewal of licenses: Most counties in N.Y. issue "lifetime" licenses. Elsewhere than in the City of New York and the counties of Nassau, Suffolk and Westchester, any license to carry or possess a pistol or revolver shall be in force and effect until revoked.^[5][6][34] Renewable licenses vary in cost and last from the 3-year New York City license to five years in the other counties, with New York City's license costing $340 every three years^[33] and by contrast, a renewal charge of $10.00 in Suffolk County every 5 years.

NY SAFE Act

In the wake of the Sandy Hook Elementary School shooting and the 2012 Webster, New York shooting, New York became the first state to enact stricter gun control laws when it passed the NY SAFE Act on January 15, 2013. New measures included the redefining of what is considered an assault weapon, assault weapon registration, prohibition of sales of assault weapons, the prevention of selling or passing on registered assault weapons to friends or family, reducing the maximum allowed magazine capacity from ten rounds to seven rounds, background checks on almost all gun sales including private sales, background checks on all ammunition sales (has yet to go into effect), additional requirements for reporting of persons with mental health issues, and increased penalties for certain gun crimes.^[8][35] The SAFE Act also includes provisions allowing law enforcement to pre-emptively seize a person's firearms without a warrant or court order if they have probable cause that the person in question may be mentally unstable or intends to use the weapons to commit a crime.

See also

• Law of New York
• NY SAFE Act
• Sullivan Act

References