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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 provisions 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. Apr. 16, 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., No. CV-92-0151(RR), Report and Recommendation, 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. |
Ammunition Regulation |
Minimum Age to Purchase/Possess
New York prohibits the possession of ammunition by any person under age 16. N.Y. Penal Law § 265.05.
Regulation of Unreasonably Dangerous Ammunition
New York prohibits the possession of armor piercing ammunition with the intent to use it unlawfully against another. N.Y. Penal Law § 265.01(8). “Armor piercing ammunition” is any ammunition capable of being used in handguns that contains a projectile or projectile core constructed entirely from one or a combination of tungsten alloys, steel, iron, brass, bronze, beryllium copper or uranium. Section 265.00(18).
New York generally prohibits any person from knowingly possessing any bullet containing an explosive substance designed to explode or detonate upon impact. Section 265.01(7).
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Assault Weapons |
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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:
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A threaded barrel capable of accepting a barrel extender, flash suppressor, forward handgrip, or silencer;
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Any of the weapons, or functioning frames or receivers of such weapons, or copies or duplicates of such weapons, in any caliber, known as:
The following are not considered assault weapons under section 265.00(22):
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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Background Checks |
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Federal law generally requires that licensed firearms dealers conduct a background check on all prospective firearm purchasers to ensure that such persons are not prohibited by law 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. NICS is used for purchases of handguns and long guns, and for persons who redeem a pawned firearm. 18 U.S.C. § 922(t).
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 records and databases, or having the checks performed by the FBI using only NICS.
New York is not a point of contact for NICS. In New York, all firearms transfers by licensed dealers are processed by the FBI, which enforces the federal purchaser prohibitions referenced above. Bureau of Justice Statistics Survey of State Procedures Related to Firearm Sales, 2005 (Nov. 2006). In New York, firearms dealers must contact the FBI for all background checks required by the Brady Act, and for gun show transfer checks required by New York law. Sheriffs and police departments conduct background checks for handgun license applicants. Generally, anyone wishing to possess a handgun must obtain a license that is valid for the purchase of one handgun only. N.Y. Penal Law § 400.00.
For a discussion of persons prohibited by federal or state law from possessing or purchasing a firearm, see the New York Prohibited Persons section.
For information about the reporting of mental health information for use in firearm purchaser background checks, see the New York Mental Health Reporting section.
Private sellers of long guns (i.e., transfers by persons who are not licensed dealers) who transfer such guns anywhere except at a gun show are not required to initiate background checks when transferring a long guns in New York, although federal and state laws prohibiting certain persons from purchasing or possessing firearms still apply. See the New York Private/Secondary Sales section.
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Ballistic Fingerprinting |
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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 state police must enter the pertinent ballistic information into an automated electronic databank (the “Combined Ballistic Identification System” or “CoBIS”) designed to ensure compatibility with national ballistic technology. Section 396-ff(6).
For detailed information on CoBIS, see N.Y. Comp. Codes R. & Regs. tit. 9, § 472.1 et seq.
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Carrying Firearms |
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Possession Restrictions
New York prohibits the possession of a loaded handgun outside of the home or place of business without a license. N.Y. Penal Law § 265.03(3). 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. 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).
No person, including a handgun license holder, 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. Sections 265.01(3), 265.20(a)(3).
A person is criminally liable for a Class C felony if he or she possesses five or more handguns with intent to use any handgun unlawfully against another person. Section 265.03(2). If any person possesses ten or more handguns, he or she is criminally liable for a Class B felony. Section 265.04(2).
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).
Licenses to carry a handgun held by persons who are later convicted of a felony or serious offense are automatically revoked upon conviction. 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 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 New York City 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 qualify as alternatives to the 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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Child Access Prevention |
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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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Dealer Regulations |
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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., 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.
A firearms dealer may not sell any ammunition designed exclusively for use in a handgun to any person who is not authorized to possess a pistol or revolver. N.Y. Penal Law § 270.00(5).
For dealer obligations involving New York’s “Combined Ballistic Identification System,” see the 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 1,725 federally licensed firearms dealers and pawnbrokers in New York. Federal firearms licensee totals for New York as of November 24, 2008 were provided by the U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives.
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Disarming Prohibited Possessors |
Domestic Violence Protective Orders
New York prohibits the possession of firearms by persons subject to domestic violence protective orders and temporary orders of protection, and has detailed requirements for the surrender of firearms by persons subject to these orders and for those persons who willfully fail to obey an order of protection. For further information, see the New York Domestic Violence and Firearms section.
Mental Illness
A person is certified not suitable to possess a rifle or shotgun when the director or physician in charge of a hospital or institution for mental illness has certified to any organized police department in New York that the person has either been adjudicated mentally incompetent or has been confined to an institution pursuant to judicial authority. N.Y. Penal Law § 265.00(16). When a person so certified refuses to surrender his or her rifle or shotgun upon the demand of a police officer, the officer shall immediately seize the firearm and keep it until the certificate has been rescinded or another disposition of the firearm is ordered by a court. N.Y. Penal Law § 265.01(6).
Other Prohibited Possessors
New York Penal Law declares any firearm unlawfully possessed, transported, disposed of or used in the commission of an offense to be a nuisance. N.Y. Penal Law § 400.05(1). When such a firearm comes into the possession of any police or peace officer in New York, it is considered surrendered to law enforcement. Id. The officer who takes possession is required to dispose of the weapon within a year of its surrender unless a judge or district attorney files a certificate that non-destruction is necessary. N.Y. Penal Law §§ 400.05(2), (3). When a firearm is surrendered, the officer in possession must notify the state police of the firearm and a search must be run on the identification of the firearm. Before destroying a firearm, the officer must notify the state police who will keep a record of the firearm, the officer, and the date of destruction. N.Y. Penal Law §§ 400.05(4)-(5).
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Domestic Violence and Firearms |
Firearm Prohibitions for Domestic Violence Misdemeanants
New York prohibits persons convicted of specific domestic violence-related misdemeanors from obtaining a license to purchase or possess a handgun, assault weapon, or long guns of certain dimensions, thereby prohibiting possession of these weapons. N.Y. Penal Law §§ 400.00(1), 265.00(17). State law also prohibits persons with select domestic violence misdemeanors from possessing long guns. Sections 265.01(4), 265.00(17).
New York authorizes courts to prohibit a defendant from purchasing or possessing firearms, and to suspend any existing handgun licenses in a defendant’s name in cases where the defendant is charged with (but not yet convicted of) certain domestic violence misdemeanors. N.Y. Crim. Proc. Law §§ 530.12(1), 530.14(1)(b).
Federal law also prohibits the purchase and possession of firearms and ammunition by persons who have been convicted of a “misdemeanor crime of domestic violence.” 18 U.S.C. § 922(g)(9). Federal law defines a “misdemeanor crime of domestic violence” as an offense that is a federal, state or tribal law misdemeanor and has the use or attempted use of physical force or threatened use of a deadly weapon as an element, if the offender:
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Was a current or former spouse, parent, or guardian of the victim;
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Shares a child in common with the victim;
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Was a current or former cohabitant with the victim as a spouse, parent or guardian; or
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Was similarly situated to a spouse, parent or guardian of the victim.
18 U.S.C. § 921(a)(33).
Firearm Prohibitions for Persons Subject to Domestic Violence Restraining/Protective Orders & Removal or Surrender of Firearms When Domestic Violence Restraining/Protective Orders Are Issued
New York prohibits a person subject to a domestic violence protective order or a temporary ex parte domestic violence protective order (the “respondent”) from purchasing or possessing handguns, and must revoke any existing handgun license in the name of the respondent. N.Y. Fam. Ct. Act § 842-a(1), (2), § 828(1)(a), (3); N.Y. Crim. Proc. Law §§ 530.12(1), 530.14(1)(a), (2). See also N.Y. Penal Law § 400.00(1), (11). The court must also order the immediate surrender of any handguns owned or possessed by the respondent where the court finds that the conduct which resulted in the issuance of the protective order involved: 1) the infliction of serious physical injury; 2) the use or threatened use of a deadly weapon or dangerous instrument; or 3) behavior constituting any violent felony offense. N.Y. Fam. Ct. Act § 842-a(2), N.Y. Crim. Proc. Law § 530.14(2).
Temporary Orders of Protection
When a temporary order of protection is issued during a pending criminal action under N.Y. Crim. Proc. Law §§ 530.12 or 530.13, or in a family court proceeding under N.Y. Fam. Ct. Act § 828, a court shall suspend a firearm license, order the respondent ineligible for a license and order the immediate surrender of all firearms possessed or owned by the respondent, if the court has good cause to believe that the respondent:
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Has a prior conviction of a violent felony;
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Has previously willfully failed to obey a prior order of protection, and the failure involved the infliction of serious physical injury, the use or threatened use of a deadly weapon, or behavior constituting any violent felony offense; or
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Has a prior conviction of stalking in the first, second, third or fourth degree.
N.Y. Crim. Proc. Law §§ 530.12(1), 530.14(1)(a); N.Y. Fam. Ct. Act § 842-a(1).
Where the court finds a substantial risk that the respondent may use or threaten to use a firearm unlawfully against a person(s) for whom the temporary order of protection was issued, the court has discretion to suspend a handgun license, order the defendant ineligible for a license and order the immediate surrender of all firearms owned or possessed. N.Y. Crim. Proc. § 530.14(1)(b); N.Y. Fam. Ct. Act § 842-a(1)(b).
Orders of Protection
When an order of protection is issued pursuant to N.Y. Crim. Proc. Law §§ 530.12(5) or 530.13(4), the court shall revoke any firearm license possessed by the respondent, order the respondent ineligible for a license, and order the immediate surrender of any firearms possessed or owned where required by N.Y. Penal Code § 400.00, which states that the conviction of a licensee anywhere of a felony or serious offense shall operate as a revocation of the license. N.Y. Crim. Proc. Law §§ 530.14(2)(a); N.Y. Penal Law § 400.00(11).
When an order of protection is issued pursuant to N.Y. Fam. Ct. Act § 841, the court shall revoke a license, order the respondent ineligible for a license and order the immediate surrender of any firearms owned or possessed by respondent if the court finds that the conduct leading to an order of protection involved:
N.Y. Fam. Ct. Act § 842-a(2)(a), (3); N.Y. Crim. Proc. Law §§ 530.14(2), 530.14(3).
If a court finds a substantial risk that the respondent may use or threaten to use a handgun unlawfully against the person(s) for whose protection the order was issued, the court may revoke or suspend respondent’s handgun license, order respondent ineligible for a future license, and order the immediate surrender of all handguns owned or possessed by the respondent. N.Y. Fam. Ct. Act § 842-a(2)(b), (3)(b); N.Y. Crim. Proc. Law § 530.14(2)(b), (3)(b).
Willful Failure to Obey an Order of Protection
When a respondent is found to have willfully failed to obey an order of protection under N.Y. Crim. Proc. Law §§ 530.12(11), 530.13(8), or N.Y. Fam. Ct. Act § 846-a, the court shall revoke any existing handgun license held by the respondent, order the respondent ineligible for a license, and order the immediate surrender of any or all firearms owned or possessed by the respondent when the failure to obey has involved:
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Behavior constituting a violent felony offense; or
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Behavior constituting stalking in the first, second, third or fourth degrees.
N.Y. Crim. Proc. Law § 530.13(3)(a); N.Y. Fam. Ct. Act §§ 842-a(3)(a), 846-a.
Where the court finds a substantial risk that the defendant may use or threaten to use a firearm unlawfully against a person for whom the order of protection is issued, the court has the discretion to revoke or suspend a license, order the respondent ineligible for a license, and order the surrender of all firearms owned or possessed by the respondent. N.Y. Crim. Proc. Law § 530.14(3)(b); N.Y. Fam. Ct. Act § 842-a(3)(b).
Procedures
New York law gives courts discretion to issue a temporary order of protection or an order of protection in accordance with N.Y. Family Court Act § 842-a in assistance to or as a condition of any other order made during a proceeding for divorce, separation, annulment, custody, visitation or child support. N.Y. Dom. Rel. Law §§ 240(3), 252(9). The order may direct the revocation or suspension of a firearm license of the person subject to the order, and/or direct that the person be ineligible to receive a firearms license. Section 252(9).
When an order to surrender firearms has been issued, the temporary order of protection or order of protection must specify the place, date and time for the firearms to be surrendered and, to the extent possible, describe the firearms to be surrendered, along with instructions to the receiving authority to notify the court immediately upon surrender. The order must also state whether the firearm license has been suspended, revoked, or that the person subject to the order is ineligible. N.Y. Crim. Proc. Law §§ 530.14(5)(a), 530.14(6)(a); N.Y. Fam. Ct. Act §§ 842-a(5)(a), 842-a(6)(a).
The court that declares a defendant or respondent ineligible for a firearms license, revokes or suspends defendant’s or respondent’s license, or orders the surrender of a defendant’s or respondent’s firearms must notify the police in the relevant locality and give written notice to the state police. In the case of orders of protection or temporary orders of protection issued pursuant to § 530.12 and all orders of protection or temporary orders of protection pursuant to the Family Court Act, the court must notify the statewide registry of orders of protection. N.Y. Crim. Proc. Law § 530.14(6)(b)-(d); N.Y. Fam. Ct. Act § 842-a(6)(b)-(d).
The defendant has a right to a hearing before any revocation, suspension, ineligibility or surrender of firearms is ordered. When an order is issued prior to a hearing, the defendant must receive a hearing within two weeks of the date of the order. N.Y. Crim. Proc. Law § 530.14(7); N.Y. Fam. Ct. Act § 842-a(7).
If a defendant promptly surrenders a firearm pursuant to a court order, it is considered a voluntary surrender and the defendant may arrange for the transfer or sale of the firearm to a licensed dealer within a year of surrender. After a year, the firearm is declared a nuisance and can be disposed of by the law enforcement authority who received it. N.Y. Crim. Proc. Law § 530.14(5)(b); N.Y. Fam. Ct. Act § 842-a(5)(b); N.Y. Penal Law § 400.05(6).
According to the Bureau of Justice Statistics Survey of State Procedures Related to Firearm Sales, 2005 (Nov. 2006), New York maintains order of protection and domestic violence misdemeanor data.
For general information on the background check process, see the New York Background Checks section. For information concerning the categories of prohibited purchasers or possessors, see the New York Prohibited Persons section.
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Gun Shows |
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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:
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Twenty percent or more of all exhibitors are firearms exhibitors;
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Ten or
more firearms exhibitors are participating;
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Twenty-five or more handguns are offered for sale or
transfer; or
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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 for 10 years, and make the records available to law enforcement (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. N.Y. Penal Law § 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. N.Y. Gen. Bus. Law § 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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Immunity Statutes / Manufacturer Litigation |
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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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Junk Guns / Saturday Night Specials |
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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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Large Capacity Ammunition Magazines |
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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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Licensing of Gun Purchasers / Owners |
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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, 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., 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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Locking Devices |
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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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Mental Health Reporting |
Federal law prohibits any person from selling or otherwise transferring a firearm or ammunition to any person who has been “adjudicated as a mental defective” or involuntarily “committed to any mental institution.” 18 U.S.C. § 922(d)(4). No federal law, however, requires states to report the identities of these individuals to the National Instant Criminal Background Check System (NICS) database, which the FBI uses to perform background checks prior to firearm transfers.
New York requires the state Commissioner of Mental Health to collect, retain or modify mental health records and transmit those records to the New York State Division of Criminal Justice Services or to the Criminal Justice Information Service (CJIS) of the Federal Bureau of Investigation (FBI) to respond to queries to the NICS database. N.Y. Mental Hyg. Law §§ 7.09(j), 13.09(f); N.Y. Comp. Codes R. & Regs. tit. 14, § 542.2.
To ensure that such mental health data is collected for background check purposes, New York requires that: -
Operators of mental health facilities or programs licensed or funded by the state provide to the state Office of Mental Health any records pertaining to persons who may be disqualified from possessing a firearm due to mental illness; (N.Y. Mental Hyg. Law §§ 7.09(j), 31.11, 33.13(b)); and
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The Chief Administrator of the Courts in New York state adopt rules to require the transmission, to the CJIS or the State Division of Criminal Justice Services, of the name and other identifying information of each person who has a guardian appointed to him or her because of marked subnormal intelligence, mental illness, incapacity, condition or disease, or who lacks the mental capacity to contract or manage his or her own affairs. N.Y. Jud. Law § 212(2)(q).
In New York, local law enforcement may access the records of the Department of Mental Health to verify that an applicant for a license to purchase and possess a handgun is not prohibited because of a previous or present mental illness. N.Y. Penal Law § 400.00(4).
In addition, the director or physician in charge of a public or private hospital or mental institution may certify to state or local law enforcement that persons judicially adjudicated incompetent or confined to a mental institution pursuant to judicial authority are not suitable to possess a long gun. N.Y. Penal Law §§ 265.00(16).
According to the Bureau of Justice Statistics Survey of State Procedures Related to Firearm Sales, 2005 (Nov. 2006), New York maintains limited mental health information in the New York State Office of Mental Health on patients and former patients of State-operated mental health facilities. In addition, criminal histories may contain dispositions of incompetent to stand trial or not responsible by reason of mental disease.
For general information on the background check process, see the New York Background Checks section. For information concerning the categories of prohibited purchasers or possessors, see the New York Prohibited Persons section.
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Minimum Age to Purchase / Possess |
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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).
Federal law prohibits firearms dealers from selling or delivering a shotgun or rifle, or ammunition for a shotgun or rifle, to any person the dealer knows or has reasonable cause to believe is under the age of 18. 18 U.S.C. § 922(b)(1), (c)(1). Dealers are prohibited from selling or delivering other firearms (e.g., handguns) or ammunition for those firearms to any person the dealer knows or has reasonable cause to believe is under the age of 21. Id.
Federal law provides less stringent age restrictions with respect to sales by unlicensed persons. Unlicensed persons generally may not sell, deliver or otherwise transfer a handgun or handgun ammunition to any person the transferor knows or has reasonable cause to believe is under the age of 18. 18 U.S.C. § 922(x)(1), (3) and (5). Federal law provides no age limitations with respect to the sale of a long gun by an unlicensed person.
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Multiple Purchases / Sales of Firearms |
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No relevant statutes currently exist.
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Personalized / Smart Guns |
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No relevant statutes currently exist.
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Private / Secondary Sales |
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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, 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.
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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Prohibited Persons |
Federal law prohibits a number of classes of persons from purchasing or possessing firearms, 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, see LCAV’s Federal Background Checks and Prohibited Purchasers summary.
In addition, New York has adopted other classes of prohibited purchasers or possessors of firearms, and incorporated some of the federal prohibitions as state offenses. N.Y. Penal Law § 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:
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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
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Has been convicted of a felony or "serious offense." Pursuant to section 265.00(17), a "serious offense" includes but is not limited to:
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Illegally using, carrying or possessing a handgun or other dangerous weapon;
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Making or possessing burglar's instruments;
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Buying or receiving stolen property;
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Unlawful entry into a building;
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Aiding escape from prison;
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Certain kinds of disorderly conduct;
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Certain drug offenses or crimes involving sodomy or rape;
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Child endangerment;
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Certain crimes permitting or promoting prostitution; or
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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:
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Is twenty one-years of age or older (except if 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);
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Is of good moral character;
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Has not been convicted anywhere of a felony or a serious offense (see above list of crimes deemed "serious offenses");
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Has ever suffered from any mental illness or been confined to any hospital or institution, public or private, for mental illness;
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Has not had a handgun license revoked and is not under a suspension or ineligibility order due to a domestic violence restraining order;
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Has successfully completed a firearms safety course and test (applicable in Westchester County only); and
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Presents no good cause for the denial of the license.
For information on the background check process used to enforce these provisions, see the New York Background Checks section.
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Registration of Guns |
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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 of the firearm. 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.
These requirements do not apply to standard length shotguns and rifles.
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.
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Reporting of Lost or Stolen Firearms |
New York requires any owner or other person lawfully in possession of a firearm to report the loss or theft of the weapon 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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Waiting Periods |
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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 may 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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