New York "Assault Weapon" Ban

In August 2000, NY governor Pataki signed extensive gun-control bill S8234 into law. Among other regulations that do little to hinder criminals and much to harass the law-abiding, this law defines and bans "assault weapons". Unfortunately, what this new law defines as an "assault weapon" significantly differs from what most people think of as "assault weapons" - a difference that is legally dangerous to residents acting in good faith.

This page is intended to review this law, explain it, and clarify why the law is in fact irrational, harmful, invalid and unconstitutional. Please send me your comments and insights that I may expand this page further.

What is an "assault weapon"?

Some things that you think are "assault weapons" are by NY legal definition not, and some things that you think are not are.

   18    22. "Assault weapon" means (a) a semiautomatic rifle that has an abil-
   19  ity to accept a detachable magazine and has at least two of the  follow-
   20  ing characteristics:
   21    (i) a folding or telescoping stock;
   22    (ii)  a pistol grip that protrudes conspicuously beneath the action of
   23  the weapon;
   24    (iii) a bayonet mount;
   25    (iv) a flash suppressor or threaded barrel designed to  accommodate  a
   26  flash suppressor;
   27    (v) a grenade launcher; or
   28    (b)  a  semiautomatic  shotgun  that has at least two of the following
   29  characteristics:
   30    (i) a folding or telescoping stock;
   31    (ii) a pistol grip that protrudes conspicuously beneath the action  of
   32  the weapon;
   33    (iii) a fixed magazine capacity in excess of five rounds;
   34    (iv) an ability to accept a detachable magazine; or
   35    (c)  a semiautomatic pistol that has an ability to accept a detachable
   36  magazine and has at least two of the following characteristics:
   37    (i) an ammunition magazine that attaches to the pistol outside of  the
   38  pistol grip;
   39    (ii)  a  threaded barrel capable of accepting a barrel extender, flash
   40  suppressor, forward handgrip, or silencer;
   41    (iii) a shroud that is attached to, or partially or completely  encir-
   42  cles,  the  barrel and that permits the shooter to hold the firearm with
   43  the nontrigger hand without being burned;
   44    (iv) a manufactured weight of fifty ounces or more when the pistol  is
   45  unloaded;
   46    (v) a semiautomatic version of an automatic rifle, shotgun or firearm;
   47  or
   48    (d)  any  of  the  weapons, or functioning frames or receivers of such
   49  weapons, or copies or duplicates of such weapons, in any caliber,  known
   50  as:
   51    (i) Norinco, Mitchell, and Poly Technologies Avtomat Kalashnikovs (all
   52  models);
   53    (ii) Action Arms Israeli Military Industries UZI and Galil;
   54    (iii) Beretta Ar70 (SC-70);
   55    (iv) Colt AR-15;
   56    (v) Fabrique National FN/FAL, FN/LAR, and FNC;
    1    (vi) SWD M-10, M-11, M-11/9, and M-12;
    2    (vii) Steyr AUG;
    3    (viii) INTRATEC TEC-9, TEC-DC9 and TEC-22; and
    4    (ix)  revolving  cylinder shotguns, such as (or similar to) the Street
    5  Sweeper and Striker 12;
Read all that very carefully. In many cases, it is clear which guns are "assault weapons".

For now, I will bypass the standard national complaints about what defines an "assault weapon" (ex.: putting a flash suppressor - a harmless and marginally useful device - on a rifle may make it an "assault weapon"; this takes two absolutely equally deadly rifles and makes one perfectly legal and the other profoundly illegal), as such issues were addressed when the federal government defined and banned "assault weapons". These legal definitions differ slightly yet significantly.

Per the second clause of part (d) of this definition, an "AR-15 receiver" is an "assault weapon". Mere posession of this harmless chunk of metal is a violent felony:

AR-15 Lower Receiver
Image courtesy of American Spirit Arms Corp.

This means that anyone who possesses any AR-15-style rifle - which inherently includes the above part - which is perfectly legal up to October 31, 2000, will be guilty of a violent crime on November 1, 2000. The same goes for the currently lawful owners of any of the other named guns. New York State is currently not taking any measures to inform owners of the named guns that they will be declared violent criminals on November 1, 2000.

By declaring certain receivers to be "assault weapons", and subsequently criminalizing posession of any "assault weapon", NY closes what some considered a loophole in the federal "assault weapon" ban: that by removing harmless components that are key to the definition (such as "flash suppressor" or "bayonet mount"), a gun would be lethally equivalent to an "assault weapon" yet not be one (what the BATF terms "modified semiautomatic assault weapons", legal yet functionally as lethal as "assault weapons"). Since the most popular guns of this category use receivers that are identical to those banned by name, this definition sweeps in those guns similar to but not covered by the federal "assault weapon" ban.

What is not an "assault weapon"?

The law does exempt certain guns from the "assault weapon" definition: 
    6    (e) provided, however, that such term does not include: (i) any rifle,
    7  shotgun or pistol that (A) is manually operated by bolt, pump, lever  or
    8  slide action; (B) has been rendered permanently inoperable; or (C) is an
    9  antique firearm as defined in 18 U.S.C. 921(a)(16);
   10    (ii)  a  semiautomatic  rifle that cannot accept a detachable magazine
   11  that holds more than five rounds of ammunition;
   12    (iii) a semiautomatic shotgun that cannot hold more than  five  rounds
   13  of ammunition in a fixed or detachable magazine;
   14    (iv)  a rifle, shotgun or pistol, or a replica or a duplicate thereof,
   15  specified in Appendix A to section 922 of 18 U.S.C. as such  weapon  was
   16  manufactured  on  October first, nineteen hundred ninety-three. The mere
   17  fact that a weapon is not listed in Appendix A shall not be construed to
   18  mean that such weapon is an assault weapon; or
   19    (v) a semiautomatic rifle, a semiautomatic shotgun or a  semiautomatic
   20  pistol  or  any of the weapons defined in paragraph (d) of this subdivi-
   21  sion lawfully possessed prior to September fourteenth, nineteen  hundred
   22  ninety-four.
Aside from the obvious, there are at least two notable exceptions to the definition.

The primary exception is that any gun lawfully possessed prior to 9/14/94 is by definition NOT an "assault weapon". This is odd, because a gun made before that date may be exactly like one made after that date, their only difference being the functionally irrelevant aspect of age. What remains legally vague is who must lawfully possess the gun prior to 9/14/94; I submit that because this exemption occurs in the definition of the object and not in the specification of the crime, anyone - including the original factory - may have been that needed lawful possessor...though others currently disagree with me.

A peculiar exemption also exists in that any gun manufactured on 10/1/93, that gun also being on a certain federal list of exempted guns, is by definition not an "assault weapon". The reason and effect of this single-day exemption is unclear.

What are the major issues?

There are some major issues with the New York ban on "assault weapons".

Anyone who, in good faith, and after 9/14/94, purchased a gun that may be known as an AR-15, AK-47, TEC-9, Steyr AUG, or other named styles, is at grave risk of being arrested and convicted of a violent felony. The problem is that, despite lacking key components specified in the explanatory section of the definition, they are built upon receivers or frames that are standard parts of the named guns. Since an AR-15 lower receiver, AK-47 receiver, etc. is itself defined as an "assault weapon", possessing one made after 9/14/94 is a violent felony. This is absurd; the point of the law was to match the federal "assault weapon" ban and not ban anything that was not already federally illegal...unfortunately, the wording of the ban differs slightly and significantly. This law bans previously legal weapons, and provides a mere three-month window for owners to dispose of the guns - even though NY is making zero effort to alert peaceful, lawful owners of this pending legal problem.

Another twisted issue is that the difference between a fully lawful gun and an absolutely identical illegal one is simply age. This is a matter which no policeman can be expected to evaluate, as the determination may require absent or non-existant documentation. Since a policeman faced with a citizen harmlessly possessing such a gun cannot easily tell whether the citizen is doing so in a lawful fashion or is committing a violent felony, the policeman will be obligated to arrest the citizen and let a judge decide the legality. This has the intolerable effect of "chilling" a lawful activity; making a lawful act so similar to a serious crime that a citizen would best not perform the lawful action lest he face arrest, incarceration, prosecution, and a lifelong-lasting arrest record. Further chilling the action is the likely inability of anyone to easily prove that the gun they own was lawfully possessed prior to 9/14/94.

In relation to that last item, agents of the state would have the option of actively seeking out residents who lawfully possess guns virtually identical to "assault weapons", and harrass them by subjecting them to violent felony arrest. Since the crime is so significant, it is within police job description to seek out those who appear to be committing the "violent felony of possession of an assault weapon" and let a judge determine which ones are innocent vs. guilty. This could easily be done by simply visiting lawful shooting ranges, competitions, gun shows, or - more insidiously - by examining state handgun permit records for anyone who may have registered a possible "assault weapon" as a handgun after 9/14/94.

The final issue is that such a ban simply violates NY civil rights law:

   §  4.  Right  to  keep  and  bear arms. 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.

This law simply and clearly infringes the right to keep and bear arms. Someone who lawfully owns an "assault weapon" in accordance with that right prior to 10/1/00 will, upon that date, be subject to arrest, conviction and imprisonment for that exercise of a basic right. It is wrong for the state to say "you may exercise that right, but not the way you were doing so lawfully five minutes ago." It also is wrong for the state to say "you may exercise that right, but only with tools that are obsolete for the purpose for which that right exists."

So...now what?

If you own anything resembling an "assault weapon", consult a lawyer immediately.

If you own a lawful gun which is indistinguishable from an "assault weapon", you would be wise to either dispose of it or keep it permanently locked up and keep yourself out of trouble.

If you own an "assault weapon" - as precisely defined by NY law - seek out other owners to file a class-action lawsuit calling for the overturning of this law.

If you do not own an "assault weapon", support those who do in their efforts to overturn the ban...and remember, not long ago these guns were wholly legal and not thought ill of; yours may very well be next (coming up: bans on "sniper rifles", aka "hunting rifles").


Carl Donath