By Roger J. Katz, Attorney at Law and Stephen L. D'Andrilli
New York, NY -(Ammoland.com)- A reader of the Arbalest Quarrel asked us whether New York bans the Maxim 50, manufactured by SilenceCo.
To answer this question, we first went to the manufacturer’s website to get a handle on what the Maxim 50 is since the manufacturer’s description of it serves as the basis for legal analysis. The central issue is whether the Maxim 50 is a firearm under Federal and New York law. If the Maxim 50 is construed as a firearm under Federal law, it comes under the purview of the National Firearms Act of 1934, and under the purview of the Gun Control Act of 1968, and, as applicable, under the purview of those Acts as subsequently amended.
The manufacturer, SilenceCo, describes the Maxim 50 as an “integrally suppressed muzzleloader.” The manufacturer says:
“For the first time since the National Firearms Act (NFA) was created in 1934, civilians can enjoy suppressed shooting in all 50 states with SilencerCo’s latest innovation: the integrally suppressed Maxim 50 muzzleloader. In addition, this product can be purchased right now on the web with no regulation (no 4473, no $200 tax stamp, no photographs, and no fingerprints) and be shipped immediately to the customer with few exceptions.”
New York is one of those few exceptions, according to the manufacturer.
SilenceCo says a prospective purchaser, residing in New York may still obtain the weapon, but must do so, not directly, through interstate commerce, shipped directly to the purchaser’s home, but, indirectly, through a holder of an FFL.
But, Is The Manufacturer’s Statement Accurate? Can A New York Resident, Not Under Disability, Purchase The Maxim 50, Lawfully, Through A Licensed New York Gun Dealer Even If That New York Resident Cannot Take Possession Of The Maxim 50 Through The Manufacturer, Directly?
Can a resident of New York, who wishes to purchase the Maxim 50 obtain it, lawfully, then, through an FFL?
To begin to answer this question intelligently, we must ask what sort of thing is the Maxim 50 integrally suppressed muzzleloader, when viewed under federal law and under New York law.
Let us look at the Maxim 50 from the standpoint of Federal law, first. Two federal code sections are critical to our investigation: 26 USCS § 5845 (Definitions) of the United States Code of Title 26, Internal Revenue Code, Subtitle E; Alcohol, Tobacco, And Certain Other Excise Taxes; Chapter 53 Machine Guns, Destructive Devices, And Certain Other Firearms; Subchapter B. General Provisions and Exemptions, Part I. General Provisions; and we look to 18 USCS § 921 (Definitions); Title 18, Crimes and Criminal Procedure; Part I. Crimes; Chapter 44. Firearms.
We know that the Maxim 50 is a muzzle loader, since the manufacturer of the product describes it as such and as the manufacturer further explains its nature, in detail, in the product manual. The question is whether a muzzle loader is a firearm, under federal law. For, if federal law defines the Maxim 50 as a muzzle loader, then that fact is determinative of whether the device that comes equipped with an integrally suppressed muzzleloader falls under Federal firearms restrictions. We begin with the assumption that the expressions ‘firearm suppressor’ and ‘firearm silencer’ refer, from a legal standpoint, essentially to the same sort of thing. The term ‘silencer’ may be a misnomer to firearms experts, but, as it is that expression, ‘silencer,' that is used in Federal law and in New York law, rather than the more appropriate expression, ‘firearms suppressor,' we need not quibble about the relative inaccuracy of the expression, ‘firearm silencer,' when considering the legality of possession of the device by the average law-abiding American citizen. The firearms expert will understand that, to the legislator and to the police, and to the lawyer, the expressions, ‘firearms silencer,’ and ‘firearms suppressor,’ and ‘integrally suppressed firearm,’ or, as in the instant case, ‘integrally suppressed muzzleloader,’ mean pretty much the same thing in respect to what it is that the component is designed to do.
Is The Maxim 50 A Firearm Under Federal Law?
26 USCS § 5845(a) says that, “The term ‘firearm' means (1) a shotgun having a barrel or barrels of less than 18 inches in length; (2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length; (3) a rifle having a barrel or barrels of less than 16 inches in length; (4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length; (5) any other weapon, as defined in subsection (e); (6) a machinegun; (7) any silencer (as defined in section 921 of title 18, United States Code); and (8) a destructive device. The term ‘firearm' shall not include an antique firearm or any device (other than a machinegun or destructive device) which, although designed as a weapon, the Secretary finds by reason of the date of its manufacture, value, design, and other characteristics is primarily a collector's item and is not likely to be used as a weapon.” 26 USCS § 5845(a).
26 USCS § 921(a)(3) says, “The term ‘firearm’ means (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.
Through 26 USCS § 5845(a) and 26 USCS § 921(a)(3), it doesn’t appear the Maxim 50 is a “firearm.” But further clarification is necessary. We obtain that clarification in another U.S. Federal Code Section. We ask,
Is The Maxim 50 An ‘Antique Firearm’ Under Federal Law?
If the Maxim 50 is an ‘Antique Firearm,” then, under 26 USCS § 5845(a), it is not a ‘Firearm.’ How does federal law define an‘Antique Firearm?’ The expression ‘Antique Firearm,’ has two definitions. If the Maxim 50 falls under either one of those two definitions, then, the Maxim 50 is an ‘Antique Firearm’ under Federal law.
18 USCS § 921(a)(16) says:
“The term ‘antique firearm’ means—
(A) any firearm (including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system) manufactured in or before 1898; or
(B) any replica of any firearm described in subparagraph (A) if such replica—
(i) is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition, or
(ii) uses rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the United States and which is not readily available in the ordinary channels of commercial trade; or
(C) any muzzle loading rifle, muzzle loading shotgun, or muzzle loading pistol, which is designed to use black powder, or a black powder substitute, and which cannot use fixed ammunition. For purposes of this subparagraph, the term ‘antique firearm’ shall not include any weapon which incorporates a firearm frame or receiver, any firearm which is converted into a muzzle loading weapon, or any muzzle loading weapon which can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock, or any combination thereof.”
26 USCS § 5845(g) says, “The term ‘antique firearm' means any firearm not designed or redesigned for using rim fire or conventional center fire ignition with fixed ammunition and manufactured in or before 1898 (including any matchlock, flintlock, percussion cap, or similar type of ignition system or replica thereof, whether actually manufactured before or after the year 1898) and also any firearm using fixed ammunition manufactured in or before 1898, for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade.”
The Maxim 50 is, of course, a weapon manufactured after 1898, so it doesn’t qualify as an ‘antique firearm’ under 26 USCS § 5845(g), but, it is a muzzle loader that does in fact use black powder, according to the manufacturer’s instruction manual. And, if we can infer that the Maxim 50 does not incorporate a “firearm frame or receiver” and that it cannot “be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock or any combination thereof,” then it is not a ‘firearm,’ under 18 USCS § 921(a)(16), and that is sufficient to remove the Maxim 50 from the category of ‘firearm’ under federal law.
But, wait a second. Even if the Maxim 50 is an ‘antique firearm’ and, hence, not a ‘firearm’ under federal law, isn’t the Maxim 50 a “silencer?” Yes. BUT, the Maxim 50 isn’t a “firearm silencer.” How do we know this? We know this because Federal law makes clear that, since the Maxim 50 isn't a firearm, under federal law, the Maxim 50 isn’t a “silencer” either, under federal law. Once again,
18 USCS § 921(a)(3) says, “The term ‘firearm’ means (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.
Since The Maxim 50, as a black powder muzzle loader with integrally suppressed muzzleloader (silencer), isn't a firearm under federal law, then, by legal implication, the Maxim 50's silencer–more to the point, integrally suppressed muzzleloader—isn't a“firearm silencer,” under federal law, either.
But, we still aren’t quite finished with our analysis. We must ask,
Is The Maxim 50 Defined As “Any Other Weapon” Under Federal Law?
Once again, the answer is, “No.” 26 USCS § 5845(g) says, “The term ‘any other weapon' means any weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive, a pistol or revolver having a barrel with a smooth bore designed or redesigned to fire a fixed shotgun shell, weapons with combination shotgun and rifle barrels 12 inches or more, less than 18 inches in length, from which only a single discharge can be made from either barrel without manual reloading, and shall include any such weapon which may be readily restored to fire. Such term shall not include a pistol or a revolver having a rifled bore, or rifled bores, or weapons designed, made, or intended to be fired from the shoulder and not capable of firing fixed ammunition.”
The Maxim 50 cannot be readily concealed “on the person,” and, indeed, it isn’t designed to be the sort of implement to be capable of being concealed on the person. So, the Maxim 50 is not defined, in federal law as, ‘any other weapon.’
So, under federal law, we conclude that the Maxim 50 isn't a firearm and it doesn't fall under restrictions of the National Firearms Act of 1934, or under restrictions of the Gun Control Act of 1968.
So, under federal law, the Maxim 50 doesn’t appear to run into problems.
What about New York law, specifically. Is the Maxim 50, with integrated suppressor, considered a firearm within the jurisdiction of New York?
Does The Maxim 50 Come Under The Purview Of New York Gun Control Laws?
To some extent New York law follows the dictates of federal law, but New York law has its own twists.
Is The Maxim 50 Defined As A Firearm Under New York Law?
We look to the Consolidated laws of New York for the answer.
Let’s look at some definitions under Article 265 (Firearms and Dangerous Weapons) of the Consolidated Laws of New York. NY CLS Penal § 265.00(2) and (3) of Article 265 provide us with two definitions of importance to us here.
“2. ‘Firearm silencer’ means any instrument, attachment, weapon or appliance for causing the firing of any gun, revolver, pistol or other firearms to be silent, or intended to lessen or muffle the noise of the firing of any gun, revolver, pistol or other firearms.”
“3. ‘Firearm’ means (a) any pistol or revolver; or (b) a shotgun having one or more barrels less than eighteen inches in length; or (c) a rifle having one or more barrels less than sixteen inches in length; or (d) any weapon made from a shotgun or rifle whether by alteration, modification, or otherwise if such weapon as altered, modified, or otherwise has an overall length of less than twenty-six inches; or (e) an assault weapon. For the purpose of this subdivision the length of the barrel on a shotgun or rifle shall be determined by measuring the distance between the muzzle and the face of the bolt, breech, or breechlock when closed and when the shotgun or rifle is cocked; the overall length of a weapon made from a shotgun or rifle is the distance between the extreme ends of the weapon measured along a line parallel to the center line of the bore. Firearm does not include an antique firearm.”
The Consolidated laws of New York do not, to the best of our information and belief, define an implement that has the characteristics of the Maxim 50. New York law does define the expression, ‘antique firearm,’ but that definition does not track the federal law definitions.
NY CLS Penal § 265.00(16) says, “‘Antique firearm’ means: Any unloaded muzzle loading pistol or revolver with a matchlock, flintlock, percussion cap, or similar type of ignition system, or a pistol or revolver which uses fixed cartridges which are no longer available in the ordinary channels of commercial trade.” Under New York law the Maxim 50 is a muzzle loading device but it isn’t a pistol or revolver.
It would appear, at first glance, that the Maxim 50 doesn’t come under the purview of Article 265 (Firearms and Dangerous Weapons) of the Consolidated Laws of New York. But, on closer inspection, it’s clear that the Maxim 50 does come under the purview of Article 265. Let’s look once again at NY CLS Penal § 265.00(2).
“2. ‘Firearm silencer’ means any instrument, attachment, weapon or appliance for causing the firing of any gun, revolver, pistol or other firearms to be silent, or intended to lessen or muffle the noise of the firing of any gun, revolver, pistol or other firearms.” The expression, ‘firearm silencer’ refers to “any instrument, attachment, weapon or appliance . . . to lessen or muffle the noise of the firing of any gun. . . .” Pay close attention to the word, ‘gun.’
The term, ‘gun,’ is an amorphous concept that can reasonably apply to the Maxim 50. The Merriam Webster Dictionary defines the term, ‘gun,’ as ‘a piece of ordnance usually with high muzzle velocity and comparatively flat trajectory.’ The American Heritage Dictionary, Fourth Edition, defines, the term, ‘gun,’ as ‘A weapon consisting of a metal tube from which a projectile is fired at high velocity into a relatively flat trajectory.’
The drafters of ‘firearm silencer’ clearly and poignantly intended to make firearm silencers unlawful in New York. Case law makes this point clearer still. The Opinion of the Appellate Court of Albany is insightful and is quoted at length in a 1984 New York case.
In Oefinger vs. New York State Police, 146 A.D.2d 186, 540 N.Y.S.2d 360, 1989 N.Y. App. Div. LEXIS 4881, “The Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms denied the gunsmith's request for permission to transfer two machine guns and a firearm silencer to persons who could lawfully possess them in New York. The gunsmith, who was also a dealer, filed an action for a declaratory judgment. The trial court granted the state police's motion for summary judgment and dismissed the complaint. The court modified the trial court's judgment so as to allow a declaratory judgment because such was designed to allow the adjudication of rights before a wrong took place. Thus, the gunsmith did not need to be in danger of prosecution before a declaratory judgment as to his rights could be entered. The court then declared that the gunsmith could not lawfully possess or dispose of firearm silencers and machine guns. N.Y. Penal Law § 265.00(8), (9) defined a ‘gunsmith’ and a ‘dealer in firearms’ and prescribed the activities in which persons who were duly licensed for those businesses could lawfully engage. Because possession and disposition of a silencer or machine gun were not mentioned in N.Y. Penal Law §§ 265.00(8), (9), 265.02(2), 265.10(3), they were not permissible.”
The Appellate Court of Albany said this about the possession of silencers by either a New York licensed dealer or gunsmith: “Penal Law § 265.00 (8) defines a ‘gunsmith’ and Penal Law § 265.00 (9) defines a ‘dealer in firearms.’ “These definitions specifically prescribe the activities in which those persons or entities who are duly licensed for those businesses under Penal Law § 265.20 (a) (10) can lawfully engage. Applying the rule of statutory construction that states expressio unius est exclusio alterius, ‘an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded' (Patrolmen's Benevolent Assn. v City of New York, 41 NY2d 205, 208-209, quoting McKinney's Cons Laws of NY, Book 1, Statutes § 240). It follows that inasmuch as subdivisions (8) and (9) of Penal Law § 265.00 contain no reference to firearm silencer possession and disposition by a ‘gunsmith’ or a ‘dealer in firearms,’ such possession and disposition are not permissible (Penal Law § 265.02 ; § 265.10 ). We find no merit in plaintiff's contention that Penal Law § 265.20 (a) (10) provides an exemption for gunsmiths and dealers in firearms from all of the penalties provided by Penal Law article 265. The exemption provided by Penal Law § 265.20 (a) (10) permits gunsmiths and dealers in firearms to engage only in the activities prescribed in the definitions of those terms in Penal Law § 265.00 (8) and (9), for without such exemption the prescribed activities would be unlawful. Contrary to plaintiff's claim, however, the exemption cannot be construed to broaden and expand the statutory activities in which a gunsmith or dealer in firearms can lawfully engage.”
“By similar reasoning and applying the same statutory rule of construction, a ‘dealer in firearms’ is not authorized to possess or in any other way deal in ‘machine guns’ (Penal Law § 265.02 ; § 265.10 ). The definition of ‘firearm’ contained in Penal Law § 265.00 (3) does not include ‘machine guns,’ which are separately defined in Penal Law § 265.00 (1). Again, contrary to plaintiff's contention, no exemption is provided in Penal Law § 265.20 (a) (10) for a licensed dealer in firearms to possess or dispose of machine guns to any individual who may lawfully possess them. The activities of licensed dealers in firearms are limited to pistols or revolvers (Penal Law § 265.00 ). As to licensed gunsmiths, the activities permitted by Penal Law § 265.20 (a) (8) in respect to machine guns applies only if they are the [manufacturers]’ of machine guns. Since plaintiff is not such a ‘manufacturer’ of machine guns, the statute has no application to him. Pursuant to Penal Law § 265.00 (8), a licensed gunsmith may engage in certain activities with respect to machine guns, but disposition is not one of those activities. Plaintiff's other contentions have been considered and found to be without merit.”
Under New York law, as interpreted by the Appellate Court of Albany, licensed dealers and gunsmiths are not permitted to transfer machine guns or silencers. Whether the integrally suppressed muzzleloader (silencer) of the Maxim 50 is integrated into a device that is not construed as a firearm under federal law or New York law is, then, decidedly and decisively legally irrelevant.
The Maxim 50 is a “gun” under New York law, and since the suppressor (silencer) is integrated into that gun, it is the Arbalest Quarrel’s educated opinion (albeit, not a formal legal opinion), that the Maxim 50 is illegal in New York.
The Arbalest Quarrel has spoken with one licensed gun dealer in New York, and holder of an FFL, who told us that, under no circumstances, would he accept delivery of the Maxim 50 for anyone. And, it is doubtful that a New York resident, not under disability, would be able to locate any conscientious licensed New York gun dealer or gunsmith who would be willing to accept delivery of the Maxim 50 on behalf of a customer, for transfer to that customer. It should go without saying, then, that, under no circumstance should a resident of New York attempt to obtain delivery of the Maxim 50 directly from the manufacturer; for, to do so would be to invite serious criminal repercussions under New York State law.
To its credit SilenceCo does make clear that “customers from any state should verify they are abiding by all state, local, and federal laws before purchasing.”
BOTTOM LINE: The Arbalest Quarrel concludes that the Maxim 50, as with “Assault Weapons,” as the expression ‘Assault Weapon’ is defined in the Consolidated Laws of New York, is illegal in New York. Therefore, no New York resident should attempt to obtain one.
Whether the Maxim 50 is “legal” in other States requires a separate analysis of each State's own peculiar firearms' laws.
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