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A closer look at our gun laws

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During the past several years, it has seemed that every day, week, and month there is another tragedy as a result of guns in the hands of individuals who use them as tools of murder and terrorism.

The most recent massacre at a gay club in Orlando was one of 43 shootings on June 12. In 2016 so far, there have been 6,131 gun-related deaths, 141 mass shootings, and 259 children under 11 killed or injured (www.gunviolencearchive.org). These events have become horrifically commonplace.

Rather than my usual “Q&A” column, I thought that readers would like to know more about the gun laws applicable in New York State, which in and of itself has vastly different “gun cultures” between Upstate and Downstate.

New York gun licensing

New York has no separate constitutional gun protection, but Article 2, Section 4 of the New York Civil Rights Law provides “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.” That law has not prevented the state from imposing some of the strictest handgun regulations in the nation. New York’s 1911 Sullivan Law was one of the first in the country requiring a permit to own a handgun.

New York’s gun control is essentially two-tiered between state and local law. All handguns must be licensed. Outside New York City, rifles and shotguns need not be licensed.

At the state level, a license may be granted to an applicant who:

• Is of good moral character.

• Over 21 years of age.

• Has not been convicted of a serious offense.

• States if and when he has ever been treated for mental illness, is not subject to a protective court order.

• To whom no good cause exists for the denial of the license.

The age requirement does not apply to persons honorably discharged from the military. Anyone between 18 and 21 can use a handgun at an indoor or outdoor pistol range or at a target pistol shooting competition under the auspices of or approved by the National Rifle Association (not exactly my first choice for supervisory authority). New York State does not perform its own background check, but rather forwards fingerprints to the Federal Bureau of Investigation for a search of criminal records. The failure or refusal of the Bureau to complete the fingerprint check in six months cannot be the sole basis for refusing to issue the permit.

Gun purchase in New York requires a license for that particular make, model, caliber, and serial number, and possession requires a valid license for that particular registered gun. Licenses are not issued to non-New York residents or part-time residents; out-of-state handguns are not permitted.

There are two types of licenses: carry or premises-only. New York City rarely issues carry licenses and only where self-defense is the proven primary reason for ownership (usually law enforcement and armed guards). A premises-only license does not permit carrying as a concealed weapon off-premises.

Oversight and enforcement

New York’s gun control and culture widely varies from county to county, especially between Downstate and Upstate.

Other than the city (three years) or Nassau, Suffolk, and Westchester (five years), licenses in New York State are valid until revoked and need not be renewed. In other words, New York State — like most states — has no oversight of a gun owner after license.

Even with a permit, it is illegal to carry a weapon in schools (including child care), state parks, or mental health facilities. The penalty for carrying a concealed weapon without a permit is only a class A misdemeanor, carrying a penalty of a fine up to $1,000 or up to 12 months in jail (or three years probation).

New York is a “May-Issue” state; the individual licensing official (a local police chief or sheriff) has discretion to issue a handgun license or concealed weapon permit and whether to impose conditions such as firearms training or education. The various licensing and permit authorities are not unified, the rules vary between counties, and the “gun laws” are therefore all over the map.

New York City, for example, is a “No Issue” jurisdiction. New York City is the only county where a pistol licensee is restricted from carrying and must have an “uninterrup­ted trip” through the city with the ammunition and gun locked separately when traveling. Delaware County, on the other hand, is the only county to permit open carrying. The restrictions imposed on a carry license travel with the licensee as he or she travels from county to county within the state. Thus, a holder of a Delaware County license (unrestricted carry) can take his concealed handgun into Kotobuki, but his Suffolk County gun-licensee companion cannot.

New York State bans possession or sale of “assault weapons” or “large capacity ammunition feeding devices” manufactured after 1994. New York State law continues to enforce the same provisions as the (now expired) Federal Assault Weapons Ban, which bans rifle magazines in excess of 10 rounds in assault weapons manufactured after 1994. This means that New York State bans as a felony the high capacity, quick-reload weapons such as the Sig Sauer MCX, which was reportedly used in the Orlando shooting.

However, the expiration of the federal ban undermined enforcement power, since the federal law had required that all “large capacity” magazine guns be stamped with the date of manufacture. That federal requirement is no longer in effect, hindering prosecutions of possession of post-2004 assault weapons. Gov. Cuomo’s 2013 proposals did not go as far as was originally hoped in reducing permitted magazines from 10 to seven rounds.

New York gun numbers

New York is sixth in the top 10 restrictive states on the purchase, possession, or carrying of handguns, and 48th in the “Gun Death Rank” (in 2010 it was 24th). New York also elevated its rating to an A- from a B in 2010 from the Law Center to Prevent Gun Violence (smartgunlaws.org/new-york-state-law-summary). In 2008 New York had the fifth lowest number of gun deaths. And in December 2012, then-mayor Bloomberg announced that the city’s murder rates were the lowest in 50 years.

More gun-related deaths occur in states with less restrictive gun laws and a higher rate of gun ownership (smartgunlaws.org/gun-laws-matter-2012-understanding-the-link-between-weak-laws-and-gun-violence).

Although New York has some of the strictest gun laws in the country, we can still do better. The federal government and the state need to require federal background checks of all gun sales, including private ones; the ban of high-capacity magazines; keeping guns from people who are mentally ill; banning the direct internet sale of ammunition purchases. There should also be re-certification for gun ownership (just like drivers’ license renewal!) and monitoring of gun owners, together with continuing safety education courses for gun owners. It is not acceptable that it is harder to buy certain over-the-counter drugs in this country than it is to purchase a deadly weapon.

For more information on how to take action, visit the Law Center to Prevent Gun Violence and the Brady Campaign to Prevent Gun Violence (www.bradycampaign.org).

Alison Arden Besunder is the founding attorney of the law firm of Arden Besunder P.C., where she assists new and not-so-new parents with their estate planning needs. Her firm assists clients in Manhattan, Brooklyn, Queens, Nassau, and Suffolk Counties. Follow her on Twitter @estatetrustplan and on her website at www.besunderlaw.com.

Updated 5:27 pm, December 9, 2016
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