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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."
In People ex rel. Darling v. Warden of City Prison, 139 N.Y.S. 277 (N.Y. App. Div. 1913), the court rejected a section four challenge to a state law prohibiting possession of a handgun without a permit. The court held that although the legislature could not completely prohibit the keeping of arms, it could regulate firearms. The court found the statute merely regulated, rather than prohibited, the keeping of arms for the safety of the public and was a valid exercise of the police power. Id. at 285.
In Citizens for a Safer Community v. City of Rochester, 627 N.Y.S.2d 193, 198 (N.Y. Sup. Ct. 1994), a New York trial court found that "[t]he courts of this State have concluded that the language of Federal law interpreting the Second Amendment [identical in its language to section four] should be used in interpreting" section four. The court, in rejecting a section four challenge to a city ordinance regulating the possession and sale of assault weapons with large capacity ammunition magazines or certain accessories, reasoned that the plaintiffs did not satisfy their "burden of establishing that the gun itself will be used for the purpose specified in article 2, section 4 [militia service], and that they have more than a mere technical association with an unorganized, reserve militia." Id. at 198.
In Guida v. Dier,
375 N.Y.S.2d 826, 828 (N.Y. Sup. Ct. 1975), modified
on other grounds, 387 N.Y.S.2d 720 (N.Y. App. Div. 1976), another lower court articulated the same principle, finding that:
The right guaranteed by the Second
Amendment…and further defined in
section 4 of article 2 of the Civil Rights Law does not extend
to pistols or other readily concealable hand weapons. Rather, those
guarantees protect only the right to be armed with weaponry suitable
for use by the militia in warfare and for the general defense of the
community.
The Guida
court rejected a challenge to a licensing officer’s authority to deny the plaintiff a license to carry a
concealed weapon. Under N.Y. Penal Law § 400.00, designated licensing officers possess the authority to grant
or deny licenses to carry concealed firearms. The court noted, "[n]o constitutional or statutory
enactment has vested our citizenry with the undeniable right to possess
or carry a pistol." Guida, 375 N.Y.S.2d at 828.
See also Moore v. Gallup, 45 N.Y.S.2d 63 (N.Y. App. Div. 1943) (rejecting section four challenge to state handgun possession and concealed carry permitting law, declaring that the "Arms" referred to in the Second Amendment, which section four mirrors, are arms used by a militia, not handguns); Richmond Boro Gun Club, Inc. v. City of New York, No. CV-92-0151 (RR), *10, Report and Recommendation (E.D.N.Y. 1992) (rejecting section four challenge to the city's assault weapon ban, stating that state law does not create an individual right to keep and bear the banned weapons). See the New York State Preemption section for a brief summary of other issues raised in Richmond Boro Gun Club, Inc.
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New York Constitution Art. IX, § 2(c) and New York Municipal Home Rule Law § 10(1)(ii)(a)(12) (containing substantially the same language) confer broad power upon local governments to adopt laws that relate to, among other things, the "protection, order, conduct, safety, health and well-being of persons or property." However, local laws may not conflict with the state constitution or general laws. N.Y. Const. art. IX, § 2(c), N.Y. Mun. Home Rule Law § 10(1)(i), (ii). State courts have found the regulation of weapons to be a legitimate exercise of local police power. See, e.g., People v. Stagnitto, 691 N.Y.S.2d 223 (N.Y. App. Div. 1999) (upholding city ordinance regulating assault weapons).
In DJL Restaurant Corp. v. City of New York,
749 N.E.2d 186, 190 (2001), a non-firearms case, the Court of Appeals of New York explained the two
ways in which state law preempts local law: 1) when a local law directly conflicts with a state statute; and 2)
when a local government legislates in a field which the state occupies, either expressly or by implication.
Conflict occurs when local law prohibits conduct which the state allows, or does not proscribe, or imposes
additional restrictions on rights granted by state law. Id. State occupation of a field can be
found from an express declaration by the state or impliedly from "the fact that the Legislature has enacted
a comprehensive and detailed regulatory scheme in a particular area.’" Id. (citations omitted).
New York has not expressly preempted local firearms or ammunition ordinances, nor has the legislature
been found to have impliedly preempted the broad field of firearms regulation. For example, in
People v. Stagnitto, supra, the court rejected defendant’s contention that Rochester’s assault
weapon law was preempted by section 265.00 et seq. (New York’s Penal Code statutes regulating firearms and other dangerous weapons), stating, "[t]he mere fact that a local ordinance has some connection with a subject upon which a State statute exists does not automatically vitiate it." Stagnitto, 691 N.Y.S.2d at 225 (citations omitted).
Similarly, in Richmond Boro Gun Club, Inc. v. City of New York, No. CV-92-0151(RR), *9, Report and Recommendation (E.D.N.Y. 1992), the United States District Court for the Eastern District rejected plaintiff’s motion for a preliminary injunction regarding New York City’s assault weapons ban, finding "no intent, either express or through ‘occupying the field’, on behalf of the state legislature to preempt the field of firearm regulation."
The Richmond Boro court observed that "even if the local law is inconsistent with the state law, there may not be a preemption if it can be shown that there is a specific local problem justifying the enactment." Id. at *7, citing People v. Ortiz, 479 N.Y.S.2d 613, 622 (N.Y. Crim. Ct. Bronx Co. 1984). "To the extent that any such intent may reasonably be gleaned from [N.Y. Penal Law §§ 265.00 et seq. and 400.00 et seq.], it appears that there is an overriding specific local safety problem justifying New York City’s ban on assault weapons." Richmond Boro Gun Club, Inc., supra, at *9. The court went on to note that the recent and sudden proliferation of assault weapons had prompted the city council to act. Id. at *12.
In Citizens for a Safer Community v. City of Rochester, 627 N.Y.S.2d 193, 201-02 (N.Y. Sup. Ct. 1994),
the court held that state law did not preempt a city from regulating the possession and sale of assault weapons with
large capacity ammunition magazines or certain accessories. "Clearly, the State has not, either directly or indirectly,
regulated all aspects of gun possession and use as to time, place and circumstance." Id.
In Grimm v. City of New York, 289 N.Y.S.2d 358, 363 (N.Y. Sup. Ct. Queens Co. 1968), the court determined
that New York City’s licensing and registration law regarding rifles and shotguns was not preempted by state law.
The court stated that while state law addressed the possession of rifles or shotguns by persons under age 16, aliens,
convicted felons and adjudicated incompetents (see § 265.00 et seq.), it did not deal "so extensively with the
subject of the control of such weapons as to evidence any design or intention by the State to pre-empt the entire field." Id.
In De Illy v. Kelly, 775 N.Y.S.2d 256 (N.Y. App. Div. 2004), the court upheld a local regulation that allows firearm possession restricted by state law. The De Illy court rejected a preemption challenge to New York City's creation of a "premise" license that allows a permittee to possess a firearm on his or her premises and to transport the firearm to authorized target ranges and hunting areas. The court found that although state law regulating premise licenses, N.Y. Penal Law § 400.00(2)(a), does not permit licensees to transport weapons, the law has not preempted the field and the local law is merely an acceptable supplement to state law in this area. Id.
Other judicial decisions have found firearm ordinances preempted by state law. In Citizens for a Safer Community v. City
of Rochester, supra, the court found that federal and state law (15 U.S.C. § 5001(g), and N.Y. Gen. Bus. Law §§ 870 and 871,
respectively) established an intent to fully regulate "the manufacture, sale and possession of air guns, spring guns, and imitation
arms," thereby preempting the portion of the City’s ordinance defining "air guns" (which was also found to be vague and overbroad).
Citizens for a Safer Community, 627 N.Y.S.2d at 206.
Some courts have overturned firearm ordinances due to a conflict with state law. In People v. Kearse, 289 N.Y.S.2d 346, 350-51 (N.Y. City Ct., Syracuse 1968), defendants challenged part of a Syracuse law allowing the mayor to prohibit persons from carrying or possessing firearms during "special emergencies," arguing that the ordinance made no exception for state license holders. The trial court agreed, noting that N.Y. Penal Law § 400.00(6) specifically provides that "[a]ny license issued pursuant to this section shall be valid notwithstanding the provisions of any local law or ordinance." Kearse, 289 N.Y.S.2d at 352. (Emphasis added by the court.)
Finally, the court in People v. Del Gardo, 146 N.Y.S.2d 350, 354 (City Magis. Ct. Manhattan 1955) invalidated a
New York City ordinance banning any toy or imitation handgun which "substantially duplicates" an actual handgun (unless certain
requirements were met), because the ordinance did not exempt cap guns, which state law permits the sale and use of "at all times."
(Emphasis added by the court.)
Please see the Preemption summary for a general discussion of this issue, as well as the Federal Preemption section of the Federal Law Summary page.
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For general information on each policy, click the heading for that policy. Please note that many firearm-related
laws have exceptions for military and law enforcement personnel.
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New York's assault weapon law (modeled after the now-expired federal assault weapon ban) provides that it is a
class D felony to manufacture, transport, dispose of, or possess an assault weapon in New York. N.Y. Penal Law §§ 265.02(7)
and 265.10. New York’s assault weapon ban does not apply to the transfer or possession of assault weapons manufactured before September 14, 1994. Section 265.00(22)(e)(v).
An assault weapon is defined by section 265.00(22) as:
- A folding or telescoping stock;
- A
pistol grip that protrudes conspicuously beneath the
action of the weapon;
- A
bayonet mount;
- A
flash suppressor or threaded barrel designed to
accommodate a flash suppressor;
- A
grenade launcher; or
- A semi-automatic shotgun that has at least two of the following
characteristics:
- A folding or telescoping stock;
- A pistol grip that protrudes conspicuously beneath the
action of the weapon;
- A fixed magazine capacity in excess of five rounds;
- An ability to accept a detachable magazine; or
- An
ammunition magazine that attaches to the pistol outside of
the pistol grip;
- A
threaded barrel capable of accepting a barrel extender,
flash suppressor, forward handgrip, or silencer;
- A
shroud that is attached to, or partially or completely
encircles, the barrel and that permits the shooter to hold
the firearm with the nontrigger hand without being burned;
- A
manufactured weight of fifty ounces or more when the
pistol is unloaded;
- A semi-automatic version of an automatic rifle, shotgun or handgun; or
- Any of the weapons, or functioning frames or receivers of such weapons, or copies or duplicates of such weapons,
in any caliber, known as:
- Norinco, Mitchell, and Poly Technologies Avtomat Kalashnikovs (all models);
- Action Arms Israeli Military Industries UZI and Galil;
- Beretta Ar70 (SC-70);
- Colt AR-15;
- Fabrique National FN/FAL, FN/LAR, and FNC;
- SWD M-10, M-11, M-11/9, and M-12;
- Steyr AUG;
- INTRATEC TEC-9, TEC-DC9 and TEC-22; and
- Revolving cylinder shotguns, such as (or similar to) the Street Sweeper and Striker 12.
The
following are not considered assault weapons under
section
265.00(22):
- Is manually operated by bolt, pump, lever or slide action; or
- Has been rendered permanently inoperable;
A semi-automatic rifle that cannot accept a detachable magazine that holds more than five rounds of ammunition; or A semi-automatic shotgun that cannot hold more than five rounds
of ammunition in a fixed or detachable magazine.
Section 265.00(22)(e)(iv) also exempts any "rifle, shotgun or pistol, or a replica or a duplicate thereof, specified
in" Appendix A to 18 U.S.C. § 922, as manufactured on October 1, 1993. Section 265.00(22)(e)(i)(C) exempts any rifle, shotgun
or pistol that is an antique firearm as defined in 18 U.S.C. § 921(a)(16). However, the federal provisions to which these
sections of New York law refer were part of the federal assault weapon ban that expired on September 13, 2004.
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Federal
law generally requires that licensed firearms dealers conduct
a background check on all prospective firearms purchasers to
ensure that such persons are not prohibited from buying or
possessing a firearm. This background check requirement and
the National Instant Criminal Background Check System ("NICS")
were enacted through the Brady Handgun Violence Prevention
Act, pursuant to Public Law 103-159, and codified at
18
U.S.C. § 921 et seq. Federal law defines a number
of classes of prohibited purchasers (including felons,
fugitives, persons adjudicated as "mental defectives" or those
committed to mental institutions), and leaves to the states
the power to determine additional classes. (For a complete
list of federally prohibited purchasers, click
here.)
Under the
Brady Act, states have the option of serving as a "state point
of contact" and conducting their own background checks using
NICS and state informational records and databases, or having
the checks performed by the FBI using only NICS. Federal law
does not require that private sellers (persons other than
firearms dealers) conduct background checks on prospective
purchasers.
In New York, all firearms transfers by licensed dealers are processed by
the FBI and local law enforcement, which enforce the federal purchaser prohibitions
referenced above. Bureau of Justice Statistics Survey of State Procedures Related to Firearm Sales, 2005 (November 2006). Generally, anyone wishing to possess a handgun
must obtain a state license which is valid for the purchase of one handgun only. N.Y. Penal
Law § 400.00. The license is processed through local law enforcement, which in turn uses NICS
and other databases or records (including the appropriate office of the state department of
mental hygiene) to verify that the applicant is not prohibited from possessing a handgun. Id. Long
gun (rifle and shotgun) transfers are processed through the FBI.
New York has incorporated some of the federal prohibitions as state offenses and adopted other classes of prohibited persons.
Section 265.01 prohibits any person who is not a citizen of the United States from possessing any firearm. Section 265.01 also prohibits an individual from possessing a long gun if he or she:
Has been certified not suitable to possess a long gun pursuant to section 265.00(16) (which allows the
director or physician in charge of a hospital or institution for mental illness to certify to law enforcement
that certain persons are not suitable to possess a long gun.); or Has been convicted of a felony or "serious offense." Pursuant to section 265.00(17), a "serious offense"
includes but is not limited to:
Illegally using, carrying or possessing a handgun or other dangerous weapon;
Making or possessing burglar's instruments; Buying or receiving stolen property; Unlawful entry into a building; Aiding escape from prison; Certain kinds of disorderly conduct; Certain drug offenses or crimes involving sodomy or rape; Child endangerment; Certain crimes permitting or promoting prostitution; or Certain kinds of stalking.
Section 400.00(1) provides that, subject to certain limited exceptions, no person
shall be issued a license to carry, possess or dispose of a firearm (defined to include
any handgun, short-barreled rifle or shotgun, or assault weapon, per section 265.00(3)) unless he or she:
-
Is twenty
one-years of age or older, unless he or she has been honorably
discharged from the U.S. military or New York national guard,
in which case the age limit does not apply;
-
Is of good moral
character;
-
Has not been
convicted anywhere of a felony or a serious offense (see above
list of crimes deemed "serious offenses");
-
Has stated
whether he or she has ever suffered from any mental illness or
been confined to any hospital or institution, public or
private, for mental illness;
-
Has not had a
handgun license revoked and is not under a suspension or
ineligibility order due to a domestic violence restraining
order;
-
Has successfully completed a firearms safety course and test (applicable in Westchester County only); and
-
Presents no good
cause for the denial of the license.
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New York General Business Law § 396-ff(2)
requires any firearms manufacturer that ships, transports or
delivers a handgun to any person in New York to include a
separate sealed container with a shell casing of a bullet or
projectile discharged from the handgun, along with additional
information that identifies the handgun and shell casing.
A
state-licensed gunsmith or firearms dealer must, within ten
days of delivering a handgun received on or after March 1,
2001, forward to the division of state police the sealed
container enclosing the shell casing from the handgun.
Section 396-ff(5). The division of state police must
enter the pertinent data and other ballistic information into
an automated electronic databank designed to ensure
compatibility with national ballistic technology.
Section
396-ff(6).
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Possession Restrictions
No person may knowingly possess a firearm in or upon a building or grounds, used for educational purposes,
of any school, college or university without the written permission of the institution. N.Y. Penal Law §§ 265.01(3) and
265.20(a)(3). New York prohibits the possession of a loaded handgun outside of the home or place of business without a license.
Section 265.02(4). The state also prohibits any person from possessing a loaded short-barreled shotgun or rifle or an assault
weapon outside of his or her home or place of business. Id. The prohibition on possessing an assault weapon extends
to unloaded assault weapons as well. Section 265.02(7). The term "loaded firearm" includes any firearm possessed by a person who
also possesses any ammunition which may be discharged by the firearm, whether the firearm is loaded or unloaded. Section 265.00(15).
Firearm possession is generally prohibited:
In state parks, except for hunting purposes where permitted (N.Y. Comp. Codes R. & Regs. tit. 9, § 375.1(p)); On the grounds of a residential child care facility (N.Y. Comp. Codes R. & Regs. tit. 18, § 441.19(f)); At any facility of the New York Department of Mental Hygiene, or any residential facility that has an operating certificate issued by the Department (N.Y. Comp. Codes R. & Regs. tit. 14, § 45.1); or At any facility operated or licensed by the Office of Mental Health of the Department of Mental Hygiene (N.Y. Comp. Codes R. & Regs. tit. 14, § 542.5(a)).
Concealed handgun license holders may be subject to additional location limits. Please see the Location Limits subsection below for further information.
Transportation of Firearms
A license to carry or possess a handgun is generally effective throughout the state, except in New York City. Section 400.00(6). Although
a state license to carry a handgun is generally invalid in New York City, section 400.00(6) provides that a license is valid if the firearm covered by the license:
Has been purchased from a licensed dealer within the city of New York and is being transported out of the city immediately from
the dealer by the licensee in a locked container during a continuous and uninterrupted trip; or Is being transported by the licensee in a locked container and the trip through the city of New York is continuous and uninterrupted.
Concealed Weapons Licensing Requirements
New York is a "may issue" state, meaning that local law enforcement has discretion in determining whether to issue a
concealed weapons license to an applicant. A license to carry a concealed handgun may be granted by the appropriate
licensing authority on the same basis as a license to possess a handgun (see the New York Background Checks section), except that those seeking to carry a
handgun without regard to employment or place of possession must show "proper cause." Section 400.00(2)(f).
The felony
or serious offense conviction of a licensee acts as an
automatic revocation of the license to carry a handgun.
Section 400.00(11). In certain situations, a court
issuing a domestic violence order of protection or finding
that an individual violated an order of protection must revoke
the individual’s license to carry a handgun or, if none
exists, order the individual ineligible for a license.
N.Y. Family Ct. Act § 842-a.
The fee
for a license to carry a handgun may be set by each county but
may be no less than three dollars or more than ten dollars.
However, the City Council of the City of New York and the
Board of Supervisors of the County of Nassau may determine the fees
for licenses in their jurisdictions.
Section 400.00(14).
A person
who carries a handgun or short-barreled shotgun or rifle
without a license commits a class A misdemeanor.
Section
265.01(1). Additional
application and background check requirements, as well as
permit suspension or disqualification information, are
detailed under Sections 400.00(3), 400.00(4),
400.00(4-a), and
400.00(7).
Disclosure or Use of Information
There are
no specific laws relating to the disclosure or use of
information collected from licensees and applicants.
Duration & Renewal
Licenses are generally valid until revoked, but have a fixed duration in New York City (three years) and in Nassau, Suffolk and Westchester Counties (five years).
Section
400.00(10).
Location Limits
No person,
including a licensee, may knowingly possess a handgun,
short-barreled shotgun or rifle, or assault weapon in or upon
a building or grounds used for educational purposes of any
school, college or university without the written permission
of the institution.
Sections 265.01(3) and
265.20(a)(3). With limited exceptions, the license is not
valid in the city of New York without an additional permit
issued by local law enforcement.
Section 400.00(7).
Concealed handgun license holders may be subject to generally applicable possession prohibitions. Please see the Possession Restrictions and Transportation of Firearms sections above for further information.
Reciprocity
No
relevant statutes currently exist, indicating that New York
does not recognize concealed weapons permits issued in other
states.
Brady Exemption
Concealed handgun license holders in New York are not exempt from background checks when purchasing a firearm, according to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) chart that outlines those permits that qualify as alternatives to the federal Brady Act. Please note that ATF’s exempt status determination for a given state is subject to change without notice.
Under federal law, persons who have been issued state permits to purchase or possess firearms are exempt from background
checks if those permits were issued: 1) within the previous five years in the state in which the transfer is to take place;
and 2) after an authorized government official has conducted a background investigation, including a search of the NICS
database, to verify that possession of a firearm would not be unlawful. 18 U.S.C. § 922(t)(3), 27 C.F.R. § 478.102(d).
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No relevant statutes currently exist. For measures related to child access prevention, see the New York Locking Devices section.
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Firearms dealers (defined in N.Y. Penal Law § 265.00(9) as those who engage "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") must obtain a state license in order to conduct business.
Section 400.00(2). Applicants go through the same background check process as those seeking to carry or possess handguns (see the New York Background Checks section).
Applications
must be submitted in the city or county where the business is
located.
Section 400.00(3). Current photographs and fingerprints
must be supplied with the application to facilitate the background
check process. Id.
and
section 400.00(4). Except upon written notice to the
applicant, applications must be processed within six months.
Section 400.00(4-a).
A firearms dealer license must describe the premises for which it is issued, be valid in that location and be displayed prominently on the premises. Section 400.00(7), (8). A licensed dealer may conduct business temporarily at a gun show or event sponsored by any organization devoted to the collection, competitive use or other sporting use of firearms, however. Section 400.00(8). A firearms dealer license is valid for up to three years from the date of issuance. Section 400.00(10).
Any person licensed as a firearms dealer must keep a record of every transaction involving a handgun, short-barreled shotgun or rifle, or assault weapon,
including the date, name, age, occupation and residence of any person who receives or delivers such a gun, and the caliber, make,
model, manufacturer’s name and serial number. Section 400.00(12). Before delivering a handgun, short-barreled shotgun or rifle, or assault weapon to any person,
the licensee must require the person to produce either a valid New York license to carry or possess these weapons, or proof of lawful
authority as an exempt person pursuant to Section 265.20. Id.
The original transaction report must be forwarded to the division of state police within ten days of delivering a handgun,
short-barreled shotgun or rifle, or assault weapon to any person, and the dealer must keep a duplicate. Id. The
record book must be maintained on the premises described in the dealer’s license and must be open at all reasonable hours
for inspection by law enforcement. Id.
Firearms dealers are required to transfer a locking device with each firearm, and include a warning label (either affixed
to the firearm or placed in the container in which the firearm is transferred). New York Gen. Bus. Law § 396-ee(1). The warning
must state: "The use of a locking device or safety lock is only one aspect of responsible firearm storage. For increased safety
firearms should be stored unloaded and locked in a location that is both separate from their ammunition and inaccessible to
children and any other unauthorized person." Section 396-ee(2). In addition, dealers are required to post, in the place where
firearms are displayed or transferred to the purchaser, a notice conspicuously stating in bold print the warning quoted above.
Section 396-ee(2). For additional information, see the New York Locking Devices section.
See also New York Ballistic Fingerprinting section.
For laws applicable to both licensed and private firearm sellers, please see the
New York Private/Secondary Sales section.
Number of Federally Licensed Firearms Dealers
There are 1,896 federally licensed firearms dealers and pawnbrokers in New York. Federal firearms licensee totals for New York as of October 19, 2006 were provided by the U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives.
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New York General Business Law § 895
defines "gun show" as "an event sponsored, whether for profit
or not, by an individual, national, state or local
organization, association or other entity devoted to the
collection, competitive use, sporting use, or any other legal
use of firearms, rifles or shotguns." The definition also
includes an event at which:
-
Twenty percent or more of all exhibitors are firearms exhibitors;
-
Ten or
more firearms exhibitors are participating;
-
Twenty-five or more handguns are offered for sale or
transfer; or
-
Fifty or
more firearms are offered for sale or transfer.
The term
"gun show" includes any building, structure or facility where
firearms are offered for sale or transfer and any grounds used
in connection with the event.
Id.
New York requires all firearms sales at gun shows to be processed by a licensed dealer. Sections 896 and 897. Prospective purchasers are subject to the same background check process that applies to retail firearm transfers and all dealers processing transactions must record the transfer, retain the transfer records and make the records available to law enforcement for 10 years (see the New York Background Checks section). Sections 896 and 897. A person is criminally liable for a misdemeanor if he or she offers or agrees to transfer a firearm to another person at a gun show and then deliver the firearm at a location other than the gun show in order to evade compliance with the background check requirement. Section 897.
A licensed dealer is permitted to conduct business temporarily at a gun show or event sponsored by any organization devoted
to the collection, competitive use or other sporting use of firearms. Section 400.00(8). Gun show operators are required to provide access to a licensed firearm
dealer at gun shows for the purpose of completing background checks. Section 896(1)(c).
Gun show operators must conspicuously post and maintain signs stating: "A National Instant Criminal Background Check must
be completed prior to all firearm sales or transfers, including sales or transfers of rifles or shotguns." Section 896(1)(a).
Signs must be posted at all entrances to the gun show, at all places where admission tickets to the gun show are sold, and at
not less than four additional locations within the grounds of the gun show. Id. A gun show operator must notify exhibitors, in writing, that a National Instant Criminal Background Check System ("NICS") check is required prior to all firearm transfers. Section 896(1)(b).
In Scope, Inc. v. Pataki, 386 F. Supp. 2d 184 (W.D.N.Y. 2005), a group of gun association plaintiffs challenged
New York’s gun show statutes on various constitutional grounds, including that sections 895 – 897 allegedly violate the: 1)
due process clause of the Fourteenth Amendment to the U.S. Constitution, because the definition of "gun show" under section 895(1)
is vague in violation of the due process clause; and 2) First Amendment because the definition of "gun show" is so broad that
it declares any assembly of gun owners for any purpose a "gun show," infringing on plaintiffs’ rights of lawful assembly and
free speech and right to petition the government.
On the due process challenge, the court held that the definition of gun show under section 895(1) was not vague. Scope, Inc.,
386 F. Supp. 2d at 191. The court found that this part of the definition clearly defines objective criteria by which to measure
whether an event is considered a gun show, and the first clause of section 895(1) – providing that a gun show includes an event
sponsored by an individual, national, state or local organization, association or other entity devoted to the collection, competitive use,
sporting use, or any other legal use of firearms – is nevertheless "clear in its plain language. Any event sponsored by a gun
club would constitute a gun show under the definition of the statute." Id. at 193.
As to the First Amendment challenge, the court found this same definition under the first clause of section 895(1) to be overbroad in its
prohibitions, stating that the "plain meaning of the first clause of section 895(1) defines any gathering of a gun club to be a ‘gun show.’"
Scope, Inc., 386 F. Supp. 2d at 194-5. Thus, the court found the first clause of section 895(1) to be unconstitutional.
See the New York Private/Secondary Sales section for state laws that apply at gun shows.
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No relevant statutes currently exist.
For detailed information about government and private party lawsuits against the gun industry, the status of
litigation involving gun industry immunity statutes in various states, or pending gun industry immunity legislation,
visit the Brady Center's Legal Action Project
and the Coalition to Stop Gun Violence's Gun Industry Immunity page.
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The Superintendent of State Police (Superintendent) is authorized to issue rules and regulations reasonably necessary to prevent the manufacture and assembly of unsafe handguns, short-barreled shotguns or rifles, and assault weapons in New York. N.Y. Penal Law § 400.00(12-a). Pursuant to regulations promulgated by the Superintendent, a person who is engaged in the business of manufacturing or assembling handguns must obtain a certificate of compliance for each specific handgun model he or she wishes to manufacture or assemble in New York. N.Y. Comp. Codes R. & Regs. tit. 9, § 482.2. Certificates of compliance are granted subject to a prototype of the handgun passing a series of tests. If the handgun does not perform satisfactorily during the tests, the certificate will be revoked or suspended to allow the manufacturer to remedy the deficiency. See Tit. 9, § 482.3. Pursuant to Tit. 9, §§ 482.5 and 482.6, the prototype must meet requirements based on materials and parts, and safe functioning.
Material and parts requirements include:
Basic structural component specifications including melting point and tensile strength; An absence of cracks, bulges or splits in or on the barrel, chambers of the cylinder, slide, cylinder-frame and/or receiver after firing; The existence of safety devices to prevent firing; A specified amount of space between the barrel and cylinder in a revolver after firing; and A specified chamber diameter.
Tit. 9, § 482.5.
Safe functioning tests include:
A proof test which includes visual examination of a cartridge after firing to ensure there are no splits or other defects; An endurance test consisting of firing 1,000 rounds of ammunition and a test of the safety device after all firing is completed; and A drop test, performed a total of five times after the endurance test is complete, to determine whether the safety device will withstand the impact of a weight equal to that of a firearm dropping from a distance of 36 inches.
Tit. 9, § 482.6.
In addition, members of the state police must be permitted on any business day, during business hours, to inspect a manufacturer’s premises and records pertaining to the firearms manufactured or assembled within the premises. Tit. 9, § 482.4. The purpose of such inspections is to ensure that the manufacture and assembly of firearms are being conducted in accordance with the certificate of compliance. Id.
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New York prohibits the manufacture, transportation, disposal and possession of any large capacity ammunition feeding device, which New York Penal Law § 265.00(23) defines as "a magazine, belt, drum, feed strip, or similar device" manufactured after September 13, 1994 (the date the now-expired federal assault weapon and large-capacity magazine ban became effective), "that has a capacity of, or that can be readily restored or converted to accept, more than ten rounds of ammunition." Sections 265.02(8), 265.10.
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New York generally requires anyone wishing to possess a handgun to first obtain a license, following a background check,
that is valid for the purchase of one handgun only. N.Y. Penal Law §§ 265.00 et seq., 400.00 and 400.01. Applications must
be made in the city or county where the applicant resides, is principally employed, or has his or her principal place of business.
Section 400.00(3). Current photographs and fingerprints must be supplied with the application to facilitate the background check process.
Id. and section 400.00(4). Except upon written notice to the applicant, applications must be processed within six months.
Section 400.00(4-a).
The license must include the licensee's photograph and a coupon to be removed and retained by any person disposing of a handgun,
short-barreled shotgun or rifle, or assault weapon to the licensee. Section 400.00(7). The license must specify the weapon by caliber,
make, model, manufacturer's name and serial number, and must indicate if the handgun may be carried on the person or possessed in a
particular location. Id. Purchasing additional handguns requires an amendment to the license for such purpose by the local licensing
authority. Section 400.00(9).
Duration & Renewal
Licenses are generally valid until revoked, but they have a fixed duration in New York City (three years) and in Nassau, Suffolk and
Westchester counties (five years). Section 400.00(10).
Location Limits
The license is valid throughout the state, except in New York City, where a special local permit granting validity is issued by
New York City’s police commissioner. Section 400.00(6).
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No retail firearms dealer may transfer any firearm without a gun locking device and a warning label (the latter may either be affixed to the firearm or placed in the container in which the firearm is transferred). N.Y. Gen. Bus. Law § 396-ee(1). The warning must state: "The use of a locking device or safety lock is only one aspect of responsible firearm storage. For increased safety firearms should be stored unloaded and locked in a location that is both separate from their ammunition and inaccessible to children and any other unauthorized person." Section 396-ee(2). The term "gun locking device" is defined by Section 396-ee(1) as:
[A]n integrated design feature or
an attachable accessory that is resistant to tampering and is
effective in preventing the discharge of such rifle, shotgun or
firearm by a person who does not have access to the key,
combination or other mechanism used to disengage the device.
Section 396-ee(1) requires the division of state police to develop and promulgate regulations setting forth the specific devices or minimum standards and criteria which constitute an effective gun locking device. These regulations, under N.Y. Comp. Codes R. & Regs. tit. 9, § 471.1 et seq., can be found at the New York State Police web site.
In addition,
retail firearms dealers must post, in the place where firearms are
displayed or transferred to the purchaser, a notice conspicuously
stating in bold print the warning quoted above.
Section 396-ee(2).
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Persons under the age of 16 generally may not possess any firearms or ammunition in New York. N.Y. Penal Law § 265.05. This law does
not apply to the possession of a rifle or shotgun (or the appropriate ammunition) by the holder of a hunting license or permit used
in accordance with state law. Id. In addition, persons between the ages of 12 and 15 may use and possess firearms (not
including assault weapons) at a shooting range if under the "immediate supervision, guidance and instruction" of a military officer,
certified instructor, parent, guardian, or otherwise qualified person as provided by statute. Sections 265.20(a)(7) and 265.20(a)(16).
A person must be at least 21 years of age to obtain a license to possess or carry a handgun (excluding honorably discharged U.S. military or New York National Guard personnel). Section 400.00(1)(a).
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No relevant statutes currently exist.
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No relevant statutes currently exist.
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Gun transfers between unlicensed persons occurring at a gun show must be processed by a licensed firearms dealer, which subjects the
prospective purchaser to a background check (see the New York Gun Shows section
for further information). With limited exceptions, anyone wishing to possess a handgun must obtain a license which requires a background check.
Other firearm transfers are not subject to a background check requirement in New York, although federal purchaser prohibitions still apply.
See the New York Background Checks section.
New York imposes a class D felony upon any person who is not authorized to possess a handgun, short-barreled shotgun or rifle, or assault
weapon, and who: 1) transfers such a weapon or large capacity ammunition feeding device to another person; or 2) possesses such a weapon with
the intent to sell it. N.Y. Penal Law § 265.11. State law provides that it is a class C felony for a person who is not authorized to possess a handgun,
short-barreled shotgun or rifle, or assault weapon to transfer such a weapon to another person who is, or reasonably appears to be, under age 19
and not licensed to possess such a weapon. Section 265.16.
New York also imposes a class C felony on any person who sells, exchanges, gives or disposes of five or more handguns, short-barreled shotguns
or rifles, or assault weapons in a single transaction to another person, and a class B felony for transfers of ten or more of these weapons in one
transaction. Sections 265.12 and 265.13. A person over age 18 commits a class C felony if he or she requests or aids a person under age 16 in unlawfully
transferring a handgun, short-barreled shotgun or rifle, or assault weapon. Section 265.14.
Every person must report the theft or loss of a lawfully owned handgun, short-barreled shotgun or rifle, or assault weapon within 24 hours
of the discovery of such theft or loss. Section 400.10.
Private long gun transfers (i.e., transfers by non-firearms dealers) that occur outside of a gun show are not subject to a background check
requirement in New York, although federal and state purchaser prohibitions still apply. See the New York Background Checks and
New York Gun Shows sections.
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Any person
licensed as a firearms dealer must keep a record of every
transaction involving handguns, short-barreled shotguns or
rifles, and assault weapons, including the date, name, age,
occupation and residence of any person who receives or
delivers such a gun, and the caliber, make, model,
manufacturer’s name and serial number. N.Y. Penal Law § 400.00(12). Before delivering a
handgun, short-barreled shotgun or rifle, or assault weapon to
any person, the dealer must require the person to produce
either a valid New York license to carry or possess the
weapon, or proof of lawful authority as an exempt person
pursuant to section 265.20. Id.
The original transaction record must be forwarded to the division of state police within ten days of delivering a handgun,
short-barreled shotgun or rifle, or assault weapon to any person, and the dealer must keep a duplicate. Id. The
record book must be maintained on the premises described in the dealer’s license and must be open at all reasonable hours
for inspection by law enforcement. Id.
The New York State Police Pistol Permit Bureau maintains a master database of all transaction records and pistol permits issued
in the state. See the New York State Police Pistol Permit Bureau
web site for an overview.
New York requires any owner or other person lawfully in possession of a handgun, short-barreled shotgun or rifle, or assault weapon to report the loss or theft of such firearm to a police department or sheriff’s office within 24 hours of the discovery of the loss or theft. N.Y. Penal Law § 400.10.
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Although there is no specific waiting period in New York, all handgun purchasers must obtain a license to possess or carry a handgun, and such licenses can take up to six months to process (or longer, upon written notice to the applicant). N.Y. Penal Law § 400.00(4-a).
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