[jma5000]

Rather than side tracking the other post with this topic, I decided to make a new one more specific to the issue of dealers being exempt from the Assault Weapons ban. I have been involved with starting up a gun shop which has given me reason to read in depth both the ATF handbook and the NYS penal code. Needless to say it is not very fun reading but some of the conclusions that you come to are interesting.

One of the big things that I got from it, is that 01 FFL's, who are not licensed NYS dealers, ARE NOT exempt from the sections of the penal law which constitute the AWB.

I can fully defend that conclusion by citing the penal code, which I will do so below:

Article 265 - Penal Law - Firearms and Other Dangerous Weapons

Section 265.00 Definitions:
Definition of a firearm, assault weapon, and high capacity magazines.

Section 265.01 Criminal possession of a weapon in the 4th degree.
Makes it illegal to posses a handgun* (Section 265.20 item #3 exempts permit holders from this)

Section 265.02 Criminal possession of a weapon in the 3rd degree.
Among other things, bans possession of assault weapons and high capacity magazines. Section 265.02 is in essence the AWB.

Section 265.20 Exemptions:

a. Sections 265.01, 265.02, 265.03, 265.04, 265.05, 265.10, 265.11, 265.12, 265.13, 265.15 and 270.05 shall not apply to
10. Engaging in the business of gunsmith or dealer in firearms by a person to whom a valid license therefor has been issued pursuant to section 400.00.

There are no other exemptions in section 265.20 for dealers, other than for manufacturers of machine guns, assault weapons, etc. (Item #8 under 265.20)

So what type of license is issued under section 400.00 you might ask?

Article 400 - Penal Law - Licensing and Other Provisions Relating to Firearms

A NYS Firearms Dealers or Gunsmith's license, NOT a FFL.

S.400.00 Licenses to carry, possess, repair and dispose of firearms.

2. Types of licenses. A license for gunsmith or dealer in firearms shall be issued to engage in such business.

So, what I am saying here is, if you have a FFL and no NYS license, you can buy and sell rifles and shotguns (which are non firearms according to NYS).

However you do not qualify for the exemption to the penal code, so pistols, assault weapons, and high capacity magazines are not legal to possess. You have to have a NYS dealers license to be exempt from those sections of the penal code.

 

[Dieter122]

its possible word for word that its how it may read, but im still confident that its not how it was intended. If it was true, there would be many many dealers in violation that have their 01's who stock non-AWB compliant firearms for LE sale, whom dont have a NYS Dealer License for handguns.

Kind of like Colt AR-15's are banned by name, but things like Stag Arms AR15s, or Deltons not marked "AR15" are permitted. The wording is one thing, how it is interpreted and enforced is a totally different matter. Many times people read the law, and it does seem that post ban ARs and AKs would be illegal, but in fact they are not (somehow).

I do understand why it seems that way in reading it, again word for word, it would seem so.
Laws are not written perfectly. Its a good thing they arent. Sometimes they are written in a nebulous fashion on purpose, so enforcement can be done by picking and choosing winners and losers. It allows the state to crucify some that they will and let others slip past with a wink and a nod.
Gotta love NYS...purposely poorly written laws and varied enforcement, thats what we can expect for gun laws.

 

[CrackSlinger]

If you're actually starting a business, you'll be best served by retaining a thorough and competent attorney early on in the process.

Keith

 

[Dieter122]

If you're actually starting a business, you'll be best served by retaining a thorough and competent attorney early on in the process.

Keith

Even Attourneys are not 100% of state gun laws. Heck the NYSP arent either....nor are THEIR Attourneys! I know, ive spoken to them about a number of issues over the years. Nothing is solid, set in stone, definitive, nor will they go on the record and give you anything in writing or vouch for anything in court for anyone. Its ultimately up to each defense lawyer to make the best possible case if someone gets in trouble. Its literally a case by case basis.

Approved muzzle devices

"Thumbhole" stocks

"Machine Guns" or things that simulate "machine guns".

good luck finding solid answers anyone will stand by on those topics. It wont happen.

 

[sr20sean]

I had asked a question in the other thread but I'll ask it in this one. Are employee's of an FFL/NYS Dealer's license exempt from the AWB/Magazine capacity too or is it just the holder of them exempt?

 

[Dieter122]

I had asked a question in the other thread but I'll ask it in this one. Are employee's of an FFL/NYS Dealer's license exempt from the AWB/Magazine capacity too or is it just the holder of them exempt?

Employees are yes. Think of let's say a gun shop.. They send 5 guys to set up at a show. Those guys dragging post ban mags for LE sale to the show, the post ban evil config rifles etc, they are covered.
Mfgs sending their employees out to a range to test a gun that's a MG or even a semi auto AW , they are covered.
If employees/agents of the companies were not exempt then the owner alone could do the gun shows, travel to ranges to test many of the guns , etc.
its actually listed in the laws that employees are covered, I just don't have a link handy.

 

[sr20sean]

Would having post ban/LEO only mags and non AWB compliant rifles for a competition count(lets say a 3 gun shoot or a tactical shoot) if you were saying that you were representing the gun shop?

 

[Dieter122]

Yup. Still covered. I mark the ones I use at the range "demo" and number them.
Isnt uncommon to demo a gun for potential buyers including LE.
Shooting guns at the range that you sell in either evil or post ban configs is a great sales tool...

 

[Ben Diss]

This was a good read as I've given some thought to getting into the business. I knew that dealers were exempt, but I didn't know these details. Thanks!

 

[eagleridge357]

jma5000.......I think your reading of the law is sound, and I feel the conclusions you reach are logical considering the sections you have quoted. I tend to agree with you that a dealer in NY state who has only a FFL and not a NYS dealer lic is taking a big risk handling banned guns. Dieter says he knows of dealers who handle the evil guns all the time who have no NYS dealer lic. Maybe they are doing so at their own risk? Seems the law you quoted is quite clear, and I do agree with you. I am not a lawyer, but I would think a careful reading of 265 and 400 seems to point to the same conclusions you have drawn. I for one am staying away from the banned jail-baiters.

 

[Dieter122]

If its a penal code thing and a state issued license. Call the state police. That's within their responsibility and jurisdiction.
shld be a quick and easy one for them.

 

[eagleridge357]

Dieter....I have respect for your opinions and you probably have more experience and exposure in this area than I do, so I will take your word for it. I may just take your suggestion and give the NYSP a call to clear it up in my own mind, as I have often wondered about this shady part of the penal code. As you say, it's the interpreter of the law that gets me nervous, not the law itself so much. Good thread. Thanks all.

 

[Dieter122]

Dieter....I have respect for your opinions and you probably have more experience and exposure in this area than I do, so I will take your word for it. I may just take your suggestion and give the NYSP a call to clear it up in my own mind, as I have often wondered about this shady part of the penal code. As you say, it's the interpreter of the law that gets me nervous, not the law itself so much. Good thread. Thanks all.

Not a problem. Our state has some of the most murky gun laws in the land...the best any of us can do is to try and shed some light on them.

If you do contact the staties, please post your findings here in an update for us.

 

[jma5000]

Well, since we are bringing up the "other subject" of being in possession of non NY compliant items away from a licensed premises, here is what the penal code has to say:

Remember this is all for the NYS Dealers License.....

S 400.00 Licenses to carry, possess, repair and dispose of firearms.
6. License: validity. Any license issued pursuant to this section shall be valid notwithstanding the provisions of any local law or ordinance. No license shall be transferable to any other person or premises......unrelated text.....
A license as gunsmith or dealer in firearms shall not be valid outside the city or county, as the case may be, where issued.

That last line is definitely of interest. However there is also this:

8. License: exhibition and display........A gunsmith or dealer of firearms may conduct business temporarily at a location other than the location specified on the license if such temporary location is the location for a gun show or event sponsored by any national, state, or local organization, or any affiliate of any such organization devoted to the collection, competitive use or other sporting use of firearms.

 

[Dieter122]

According to that then any company rep that goes to a range even with a company gun would be in violation. Even to test a gun out being a gun smith wouldn't cover you unless your there for National or state event??

it would require a FFL to personally do all business and not an employee. That's not what it means however. It means it can't be handed off to another person. Also mfg'ing is to be done at your premises address.

Your still covered in say Suffolk county if your a Schenectady county dealer. You don't turn into a criminal. You simply can't open a new location without getting approved by the county and reestablished is all

Again H&K travels the country demoing guns. Pretty sure everyone isn't breaking the law , it's the laws being poorly worded

I feel no matter how quick I can try and answer the questions , there are 10 more things put up in question.
There isn't anything that pops into my head to start answering these questions specifically. The state is doing their job though , they are throwing so much nebulous legal stuff in the way , no one feels safe... Less want to do business in this industry as a result. At this rate they need not ban guns when we become too afraid to even get involved with them

 

[jma5000]

I am just going off of what it says in the penal code. And the thing of it is, if that's what it says in the code, it doesn't really matter what it's "supposed" mean if you have a prosecutor looking to nail you.

I realize that common practice might not exactly line up with what it says in black and white, and nine times out of ten, no one is going to bother you. It's just important to be aware of what it says.

On a side note, this kind of reminds me of a story about a guy I knew. He owns a farm and a tack and feed shop. He was pulling his horse trailer on the highway and had to stop at a weigh station. He's supposed to have DOT numbers on his truck but doesn't, and when questioned about it he just said. "I'm exempt" and gave some bogus reason. They said, Oh, Ok, we didn't know that and let him on his merry way.

Basically what the point of that story is, is that if you have the licenses, act like you are doing what you are supposed to, and have a good reason, the authorities are probably not going to bother you because they don't actually know what the penal law says about certain things.

 

[Dieter122]

Update:

Discussed this with Mike tonight. Your right you need the NY Handgun license to be exempt from the mag restrictions and semi auto AWs.

jma5000 is correct. Just figured I'd confirm it with an update for you guys.

 

[mk10]

Seems like NYS dealers/gunsmiths can possess AWB firearms/hi-cap mags--but only at their premises. They cannot possess AWB items at an off-site shooting range.

S.400.00 Licenses to carry, possess, repair and dispose of firearms.
7. ...Any license as gunsmith or dealer in firearms shall mention and describe the premises for which it is issued and shall be valid only for such premises.

 

[RayKnobs]

You sure that doesn't mean something like you can't have 1 licensee and say it applies to 5 stores you own?

 

[Dieter122]

Seems like NYS dealers/gunsmiths can possess AWB firearms/hi-cap mags--but only at their premises. They cannot possess AWB items at an off-site shooting range.

Woukd be illegal to sell them at shows to LE , illegal also to test fire AWs unless you have a shooting range at the premises address...