Posted: 1/23/2007 8:34:49 AM EDT
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I am buying a pre ban lower. It is from Olympic Arms. I checked the serial number on their website and it says it was made no later than January 8th of 1991. I called to confirm this and the information they gave me is the same information from the website. Because of a fire they lost most of their documentation as described here: Link They cannot tell me if this lower left the factory as a completed rifle so there is no way for me to confirm the pre ban status. What should I do? I am getting a really good deal on this lower and the current owner is also a NYer on this site. |
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As long as the lower was used to assemble a complete preban rifle prior to sept. '94 you'll be good to go. Chances are, it didn't sit around as a unused lower for 3 years. Doesnt necessarily mean it HAD to leave the factory as a "complete preban"...only owned and configured as such (prior to 9/94). The current owner may be willing to give you some sort of receipt stating that the lower was used in building up a rifle, but some sellers may be hesitant to do so - understandably of course. Hope this helps, but with the wording of the NY law its easy to be confused. |
NYS law does not require that the lower was part of a complete rifle to be "pre ban". NYS law only requires that the firearm or "functioning receiver" was lawfully possessed prior to Sept. 14 1994. Any weapon or function receiver that was lawfully possessed prior to the above date is not considered to be a "Assault Weapon" and thus legal to own. The whole thing about the compete rifle was part of the old federal ban. Just make sure that you can prove that your lower was lawfully possessed prior to the above date and you will be fine. Also I would always keep that proof with you when you take the rifle out ( just in case  ).1981 |
I don't agree that this is the necessary interpretation. The old Federal interpretation may be the correct one. |
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I called the NYSP Pistol permit unit as a leo and they confirmed it. If you read the penal law section it makes no mention of a "Complete firearm". The complete firearm thing was a ATF requirement for assault weapons to qualify as being grandfathered under the old ban. ATF rulings have little to no standing here in NY ( except for class 3 NFA issues ). All of my local and State Police friends agree that the only thing that matter's is the serial # and that the owner the firearm in question can prove that the weapon was legally possessed prior to 9-14-94. 1981 |
The NYSP Pistol permit is not equal to the New York State Court of Appeals. A telephone interpretation is worth the paper it's written on and even a written letter is at best only good to its addressee. The only way this issue will be answered is by an administrative agency engaged in rulemaking or by a court of competent jurisdiction (or clarification by our legislature). Until then, you are potentially in danger from any prosecutor with an anti-gun axe to grind. YMMV, proceed at your own risk. |
The Penal law is very clear when it talks about all of the grandfathering causes. When it talks about " All of the weapons defined in sub. D " it's talking about the whole functions receivers and copies of the weapons listed. The bottom line is that you can prove that your weapon ( the receiver with the serial # ) was lawfully possessed prior to Sept 14 1994. I'm a full time leo, and I have sold several "Assault Weapons" that were built on pre ban receivers. I would never risk my Job, my freedoom, or my families well being just to sell a firearm. The penal is alittle tricky with the wording, but it's written that way for a reason. The powers to be don't want anyone to get involved with "Assault Weapons". Hell, I've even had a Westchester County DA tell me the only the original owner of a Assault Weapon is grandfathered under NYS law, and that a pre ban firearm cannot be sold to a second party here in NY . Also I would never tell someone that something is ok if I thought it was illegal for a second. Every FFL, and all of my fellow leos all agree that one can use a pre ban lower to build a assault weapon here in NY.1981 |
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1981, I'm not saying your interpretation is incorrect, only that it's still open. None of the sources you've contacted have the legal power to issue binding guidance which protects you from a criminal prosecution. The grandfathering language is quite specific when it exempts "(v) a semiautomatic rifle, a semiautomatic shotgun or a semiautomatic pistol or any of the weapons defined in paragraph (d) of this subdivision lawfully possessed prior to September fourteenth, nineteen hundred ninety-four." ATF's interpretation of this wording under the old AWB was that a stripped receiver was not a "semi-automatic rifle" but merely the frame or receiver of a firearm, and therefore could not qualify as a grandfathered gun. The NYS law is the same in this regard.* For example of how this goes wrong, assume the view espoused by the NYSP was the official view of the NYSP but one of your customers was driving to fly out of JFK when he got a flat tire on the Belt Parkway. NYPD Highway stopped to offer assistance and when looking in the trunk saw the ammunition and mags and a gun case and so looked in the locked, hard-sided gun case your customer was keeping the AR-15 in. Lo and behold, there is an AR-15 inside in preban configuration. Your customer can't show a complete weapon existed pre-94 but can prove the receiver was pre-94. Charles Hynes, being the pro-RKBA guy he is, decides to bring charges against your guy under a.265 for possessing a post-ban rifle. Your customer duly reports the phone call he made to the NYSP and Charles Hynes says "I don't care. This is New York City, that's not binding on us, and that's not how we interpret the law." Now, I think you're really in harm's way in that situation. You are basically facing C level felony charges and it's up to you now to roll the dice in court and hope the judge you get sees it your way. However, Hynes' lackey whose prosecuting the case brings in rulings from ATF made under a now-expired but substantively-identical statute showing how it was interpreted to mean "complete rifle." That's not where I would want to be in terms of a case against me. I respect you're a full time LEO but it's clear you've gotten other incorrect advice from the Westchester DA that indicates how much about the AWB is misinterpreted, misunderstood or open at this point. However, I practice law a bit myself, and the above is my legal analysis of the risk involved. RKBar15 or other board lawyers please feel free to jump on me if you feel I am too conservative. * Edited to add the following dismal observation: The case law in NYS is actually quite unhelpful to this analysis. A.265 defines a rifle as "a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed metallic cartridge to fire only a single projectile through a rifled bore for each single pull of the trigger." There is case law that a rifle (or other firearm) must be operable to meet the elements of the definition (the case law arises in connection with weapons possessions cases). There is no way a stripped receiver could be operable, and therefore extending this case law, there's no way a stripped receiver could have been a "semiautomatic rifle" prior to the 9/14/94 cut-off. This last item has made me turn extremely pessimistic about your interpretation. |
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I hear you and it's better to be safe then sorry. I'm comfortable with just the receiver being pre ban, I hope case law down the road doesn't prove me wrong. From the NYS Penal law section 265.00 sub. 22 "Assault Weapon" means sub (d): any of the weapons, or functioning frames or receivers of such weapons, or copies or duplicates of such weapons, in any caliber, known as: From the NYS Penal law section 265.01 sub, (e) provided, however, that such term does not include: sub (v) a semiautomatic rifle, a semiautomatic shotgun or a semiautomatic pistol or any of the weapons defined in paragraph (d) of this subdivision lawfully possessed prior to September fourteenth, nineteen hundred ninety-four. Clearly everthing that is mentioned in sub (d) is not considered a "Assault Weapon" as long as it was lawfully possessed prior to 9-14-94. Just possessing a post ban receiver that is marked Colt AR-15 not just the complete rifle would be a violation of the NYS penal law. Don't get me wrong, I completely understand your point and I respect your view, but the old federal ban is in fact different then the NYS ban. We all know if they want you, you'll be taking a ride to the Police station at the very least. For the most part, if your not doing anything wrong to begin like dealing drugs or looking at little boys on your computer, no leo will bother you! We know the law is bull shXX, and except for the white shirts ( guys with alot of rank ) most of us are on your side. 1981 |
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Phil, you beat me to the punch with your analysis using the definition of "rifle" in the Penal Code in conjuncion with the grandfather clause. This the way I look at it as well. Personally, I would only build on a preban receiver that could be documented as being in complete rifle form prior to the ban. But that's me being conservative based on my own interpretation. As you say, right now, with no court rulings, it's a matter of interpretation and a person must do their own analysis and make their own choices. The issue is made even murkier as NY added the "functioning frames or receivers" definition to the "banned by name" clause. This clause stands seperately from the evil features list. The reference to frames or receivers was not in the federal law. Reading this as restictively as possible, It can be argued that the legislature intended that only a receiver marked "colt AR-15" is in and of itself an assault weapon, evil features not withstanding. If one reads the statute more expansivly and argues that the legislature intended that any AR clone receiver falls under this part of the statute, then there would be no legal post ban ARs in NY, with or without evil features. This is the danger of the "the receiver equals a rifle" argument in the context of the NY law. Some time ago I ordered the bill jacket for the NY law hoping there would be some material there that might be helpful in interpretation issues. Unfortunately there was nothing of use. Hopefully this subject will remain an academic one as I am afraid that NY courts would take the more expansive view. (d) any of the weapons, or functioning frames or receivers of such weapons, or copies or duplicates of such weapons, in any caliber, known as: (i) Norinco, Mitchell, and Poly Technologies Avtomat Kalashnikovs (all models); (ii) Action Arms Israeli Military Industries UZI and Galil; (iii) Beretta Ar70 (SC-70); (iv) Colt AR-15; |
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There is no such term "functioning frames or receivers" defined in the PL so it's anyones guess as to what it actually means in the context it was written. The Federal AWB was one of the most poorly crafted pieces of legislation enacted into law. At least under the federal ban the ATF had authority to interpret the law and issue opinions and regulations in how to comply with it. No such authority exists in NYS. I'm not surprised there was nothing of real value in the Bill jacket. The NYS Legislature in typical fashion held no public hearings or real debate on the Bill. Mario Pataki wanted a NY AWB and this is all he could get his own party to agree to. Welcome to NYS and the most dysfunctional Legislature in the U.S. Once again I have no dog in this fight as I don't have any rifles that did not leave the factory as excepted "named" or "by feature" assault weapons prior to 09-14-1994. |