What is the deal with the "machinegun" exceptions in the Penal Law?

[davejensen]

Does anyone know anything about this??

Penal Law s. 265.01(1) prohibits a person from possessing a "firearm." [which is defined to include a machinegun]
Penal Law s. 265.02(2) specifically prohibits a person from possessing a "machine-gun."
Penal Law s. 265.10(1) prohbits the "manufacture" of "any machine-gun," and s. 265.10(2) prohbits the "transport" of "any machine-gun."

Then, Penal Law s. 265.20(8) creates an exemption from all three provisions for "The manufacturer of machine-guns. . . as merchandise and the disposal and shipment thereof direct to a regularly constituted or appointed state or municipal police department [or other listed government entity]."
Next, Penal Law s. 265.20(10) creates a much broader exemption for "Engaging in the business of gunsmith or dealerin firearms by a person to whom a valid license therefor has been issued pursuant to section 400.00."

To my knowledge, there is no pertinent provision of the Penal Law that defines "manufacturer" or "manufacture."
However, the Penal Law defines a "Gunsmith" as "any person, firm, partnership, corporation or company who engages in the business of repairing, altering, assembling, manufacturing, cleaning, polishing, engraving or trueing, or who performs any mechanical operation on, any firearm, large capacity ammunition feeding device or machine-gun." In contrast, a "Dealer" "engages in the business of purchasing, selling, keeping for sale, loaning, leasing, or in any manner disposing of, any assault weapon, large capacity ammunition feeding device, pistol or revolver." Thus, a "Dealer" does not handle "firearms" or "machineguns" other than handguns and "assault weapons."

Here is the question: A company is licensed with ATF as a 07 FFL manufacturer and has an SOT stamp. (Translated: it is authorized under federal law to manufacture machineguns.) The company has a NY license as a "Gunsmith" issued by the appropriate licensing officer. The company intends to manufacture firearms (in a general sense). Can the company manufacture "machineguns" if it does not have an order on hand from a listed government entity? Can the company manufacture a handful of machineguns as demonstration samples and for experimental purposes?

In other words, if there is no active contract with a government entity, but there presumably could be one in the future, can the company still rely on the 265.20(8) exemption (for manufacture as merchandise and disposal to a government entity) or the broader 265.20(10) exemption to "engage in the business" of being a gunsmith (which is defined as including the "manufacture" of "machine-guns")?

Bear in mind, a newly manufactured machinegun can only be held by the SOT anufacturer or by an exempted government entity or by a licensed dealer with a law enforcement "demo" letter under current federal law.

I am wondering if anyone has any knowledge of this issue, particularly anyone who has experience working with manufacturers that operate in New York...

[clear_leather]

Here is the deal with full auto stuff in NY, as I just went through it my ATF inspector. In a nut shell,, Threre is no possession for use of full auto stuff in NY, period. You cannot get a class 3 license for possession or transfer in NY.. Mario Cuomo at the last second slid a bill through years ago and banned them. A class 01 or 02, cannot do anything with a full auto iron, whether he is listed as a gunsmith or otherwise,,There are 2 companies in NY that have their 07 license and are manufacturing full auto stuff. By that I mean conversions, It is legal for them to convert any ww2 kit, or any current semi to a full auto, They cannot transfer them to anyone except police or military. They cannot use them personally. What they can do is rent them to local police or military for their use. An 07 can manufacture without any order from a gov entity,,However, I would be really careful about the demo thing. Samples and experimental purposes. You can manufacture but that doesn't mean you can use freely. Your only clientele are the military and police agencies who decide that they want to rent/use/buy your product. These guys figured they could make some money renting.. The only reason I did not pursue this, is because after your done, you can never transfer them to a class 3 out of state etc... You are stuck with them unless you can find a police agency or military sector that is interested in buying them,,

[kmussack]

Squirtguns are fun in most states.
Sadly, we're not allowed that kind of fun here.

[davejensen]

Here is the deal with full auto stuff in NY, as I just went through it my ATF inspector. In a nut shell,, Threre is no possession for use of full auto stuff in NY, period. You cannot get a class 3 license for possession or transfer in NY.. Mario Cuomo at the last second slid a bill through years ago and banned them. A class 01 or 02, cannot do anything with a full auto iron, whether he is listed as a gunsmith or otherwise,,There are 2 companies in NY that have their 07 license and are manufacturing full auto stuff. By that I mean conversions, It is legal for them to convert any ww2 kit, or any current semi to a full auto, They cannot transfer them to anyone except police or military. They cannot use them personally. What they can do is rent them to local police or military for their use. An 07 can manufacture without any order from a gov entity,,However, I would be really careful about the demo thing. Samples and experimental purposes. You can manufacture but that doesn't mean you can use freely. Your only clientele are the military and police agencies who decide that they want to rent/use/buy your product. These guys figured they could make some money renting.. The only reason I did not pursue this, is because after your done, you can never transfer them to a class 3 out of state etc... You are stuck with them unless you can find a police agency or military sector that is interested in buying them,,

Thank you very much for that great response. You answered the first question I had -- does the specific (8) provision control over the general (10) provision. Based on what the ATF inspector said, they are taking the view that it does.

Now let me clarify one detail -- you said that they can only be disposed of to an agency within the state (NY). Are you sure about that? My reading of the exemption was that any disposal to any state agency (fitting the descrition) or to the US government was permissible. (Probably not a significant detail...as you note, as a practical matter demos and experimentals will be destroyed when the 07 winds down its license.)

Under current federal law, post-86 MGs can only be transferred to LE or Mil. users (or exported in compliance with AECA). But manufacturers can hold demos and experimental MGs and dealers can hold demos if they have a law enforcement demo letter. So in other words -- the only thing that (8) prohibits that is authorized by current federal law is export. If you are an 07 SOT it is already understood that you can only transfer to LE and Mil. users.

So the more I think about it -- how is 265.20(8) any different from current federal law as a practical matter? And certainly we know that 07 SOTs are allowed to make demos and experimental models and also to make MGs to hold as merchandise. So maybe I just answered my own question...

[Rich]

Here is the deal with full auto stuff in NY, as I just went through it my ATF inspector. In a nut shell,, Threre is no possession for use of full auto stuff in NY, period. You cannot get a class 3 license for possession or transfer in NY.. Mario Cuomo at the last second slid a bill through years ago and banned them. A class 01 or 02, cannot do anything with a full auto iron, whether he is listed as a gunsmith or otherwise,,There are 2 companies in NY that have their 07 license and are manufacturing full auto stuff. By that I mean conversions, It is legal for them to convert any ww2 kit, or any current semi to a full auto, They cannot transfer them to anyone except police or military. They cannot use them personally. What they can do is rent them to local police or military for their use. An 07 can manufacture without any order from a gov entity,,However, I would be really careful about the demo thing. Samples and experimental purposes. You can manufacture but that doesn't mean you can use freely. Your only clientele are the military and police agencies who decide that they want to rent/use/buy your product. These guys figured they could make some money renting.. The only reason I did not pursue this, is because after your done, you can never transfer them to a class 3 out of state etc... You are stuck with them unless you can find a police agency or military sector that is interested in buying them,,

That 07 would have to have their Class II correct? I don't believe that any 07 can just go manufacturing full auto. Maybe I'm wrong?

[davejensen]

Well now I just really answered my (8) vs. (10) question -- the term "firearm" does not include a machinegun except (arguably) for a machinegun that also fits the defintion of "pistol." So (8) is the only provision that can apply. There is no other exemption that would apply to a dealer or gunsmith. Except for the manufacture exemption it is not legal for any licensed person to possess a MG.

[davejensen]

What did the ATF inspector say about "assault weapons"?

265.10 exempts gunsmiths and dealers as to "firearms," but 265.20(b) specifies that it doesn't apply to "assault weapons." I can't see anything else that would allow a gunsmith or dealer to hold an "assault weapon." A "manufacturer" can hold an "assault weapon" as merchandise and dispose of it to an authorized purchaser (just like with MGs).

Thing is, I have definitely seen a lot of "assault weapons" in NY gun shops with tags indicating they can be sold to LE only. But I can't see how that's legal. The only way I can see for cops to acquire "assault weapons" is to acquire them out of state or to have them shipped direct.

Now on the other hand, it looks like a gunsmith/dealer could lawfully hold SBRs and SBSs as merchandise.

[clear_leather]

1) As I stated above, you cannot transfer to any class 3 dealers out of state, so you are stuck with military or law enforcement transfers only,, or they die with or you move to another state, in which case you can create under certain circumstances a NFA weapon for yourself, as long you follow NFA rules,,, DOn't you love NY!!

2) It is an Class 2 under NFA rules,, looks like an 07 might be a 10,, to cover manufacturing including NFA stuff.


3) Dealers can transfer assault weapons currently as 94 Federal bill sunset ed and they don't care,, BUT NY does,, so dealers can only transfer assault weapons to LE or military in or out of the state, or to other dealers in states where legal. If new assualt weapon in NY goes through,, won;t be able to own water pistol,, already passed house,, fiasco in senate prevented the vote on it, so far. AS I see that bill, there is no grandfathering either.
4) A few years ago at the syracuse gun show, I witnessed a bozo dealer giving a NY state compliance officer a hard time after being warned 3 times at different times in the day about getting the post ban stuff with pre ban options off his table,, this included high cap mags, some ar top ends, etc,,, They finally had enough and locked him up, confiscating about 20 g's of stuff nad suspending his licenses,,, Honestly,, he deserved it.
5) also,, there is a provision in federal law, with restraints, they allows a regular gunsmith, after seeking permission from the ATF to repair and swiftly return a NFA weapon to the original owner,, In this case,, no one is going to walk in my shop from a NY street,, so,, no matter. but can be done.

[davejensen]

clear leather - we're pretty much on the same page here
1) The thing is that ever since 5/86 there are no "new" machineguns under federal law. If you are a licensed manufacturer with an SOT stamp you can make MGs but they can only be possessed by a LE or Mil user, a dealer with a demo letter, or exported to an "ok" foreign country -- or you as merchandise, a demo, or an experimental. If you stop paying for the 07 FFL or the $500/year SOT stamp you have to dispose of them, which in most cases means you just destroy the MGs. So how (realistically) would it be any different in NY?

3) Right but what I'm saying is---I can't find any exemption in 265.20 that allows dealers or gunsmiths to hold "assault weapons" as merchandise. The 265.20(8) exemption for manufacturers (supra) applies to MGs and "assault weapons." But the general gunsmith/dealer exemption at 265.20(10) that I asked about originally excludes "assault weapons" (and as I found out MGs). So there does not appear to be any exemption that allows dealers to hold "assault weapons" for sale to LE. I do not dispute that LE and military users are themselves exempted. Am I missing something here? Or is there a widespread and "permitted" practice that is in fact prohibited by the penal law?

4) He deserved it...

[RochPersDef]

Hey Kev.....was that like a couple years ago? Nice coat.

[kmussack]

Yep, that picture was taken a while back.
That was a MAC-10 with an original SIONICS suppressor.
It ran at around 1,200 rpm and was a fun "bullet hose".

This was taken a few months ago; Thompson Submachinegun @ 550 rpm.


This was last April; H&K MP-5


This was a very long time ago; M-60 GPMG

[kennjen]

wow ...those are some cool pics. Especially the last one.

You haven't changed much...LOL.

[RochPersDef]

Sure he did!

Hot got himself some new specs

[deathrayjay]

What is the law regarding any items that could be used to convert semi-auto firearms to full auto?

[Tifosi]

Dredging up a 3 year old thread for that?
Really?

There's a place or two online where you can look up NY laws and another few that have federal laws.
If you can't find them, google.

All the answers you need will be located on those sites and relatively easy to find as most have on~site search engines.
In some instances there might even be a FAQ topic.

[BerettaGuy]

There were some recent exceptions put in so Remington could make the ACR in Full Auto for Military.

[RayKnobs]

What is the law regarding any items that could be used to convert semi-auto firearms to full auto?

"items used"? like a milling machine, file, or screw driver? all perfectly legal to possess

[GoNoGo]

"items used"? like a milling machine, file, or screw driver? all perfectly legal to possess

Or a piece of string or shoelace

[PublicEnemy]

Drive 100 or so miles south and these $10,000+ toys are fully legal...gotta love NY.

[Jeff]

What is the law regarding any items that could be used to convert semi-auto firearms to full auto?

The parts needed are illegal to possess.