July 22, 2022
By: Neil J. Smith
In a period of less than a month, New York adopted a series of new gun laws that are the most far reaching in a generation, dwarfing even the changes made by the 2013 SAFE Act. These were prompted by recent mass shooting events and the Supreme Court’s finding that New York’s Sullivan Law is unconstitutional in the case New York State Rifle and Pistol Association vs. Bruen.
One of the new major changes that will affect hunters and target shooters is the new requirement to obtain a license for the acquisition of a semiautomatic rifle starting on September 4, 2022. (Guns in possession prior to that date are grandfathered.) A semiautomatic rifle is any rifle that fires once each time the trigger is pulled and automatically chambers the next round. (In contrast, a fully automatic rifle, such as a machine gun or assault rifle, is one that continues firing while the trigger is pulled.) Such rifles have been manufactured since the early twentieth century and can be found in the gun safes of most hunters and target shooters. As a result, this new licensing requirement may affect most gun owners in New York, unlike earlier licensing requirements that had primarily only impacted those who owned handguns or the narrow categories of rifles that qualified as “assault weapons” under the 2013 SAFE Act.
There are a number of issues that both New York residents who are going to apply for a semiautomatic rifle license and law enforcement officials considering such applications will have to consider:
- The standards for the grant of a semiautomatic rifle license under the new statute are ambiguous. Among other things, the statute requires applicants to show the “essential character, temperament, and judgment necessary to be entrusted with such a weapon.” This language appears to be quite subjective and leaves a great deal of discretion to the officials reviewing the applications. It will likely require litigation resulting from denied applications to determine the exact scope of what these terms mean, and the broad discretion the law imparts to licensing officials will certainly invite additional constitutional challenges.
- It appears that the statute requires that a semiautomatic rifle license must be produced on demand to a peace officer or police officer, even though the license is only for the purchase or acquisition of a semiautomatic rifle, not to carry one in public. It would seem purposeless to require the owner of a semiautomatic rifle to produce his or her license when he or she is not in physical possession of the firearm outside the home. This may be a drafting oversight.
- The licensing category is astonishingly broad in comparison to prior law, covering all semiautomatic rifles without regard to capacity or caliber. For example, the rule appears to cover the low-capacity hunting rifles, low powered target rifles, and antiques that were deliberately excluded from the provisions of the 2013 SAFE Act. Consequently, the new provisions have created a large new category of firearms in a regulatory twilight zone. These rifles were deemed to be insufficiently dangerous to be covered by the SAFE Act restricting assault weapons, yet are now covered by the new heavy burden of obtaining a license under the new statute. As the legislature presumably was aware in 2013 when it passed the SAFE Act, the use of such rifles by criminals is vanishingly rare. Given the Supreme Court’s Second Amendment jurisprudence, it is possible that the application of licensure requirements to such weapons, given their lack of utility for criminal activity, is unconstitutional.
- The statute did not include any additional funding for extra staff that will be required to perform the additional new background checks. Given the substantial increase in the number of background checks that the new licensure requirement will entail, it is likely that there will be substantial, perhaps years long, delays even for fully qualified applicants in obtaining such licenses.
- The new licensing requirement appears to exclude semi-automatic shotguns, which are commonly used in sports such as skeet shooting (clay pigeons) and for hunting waterfowl. At short ranges (that is, within fifty yards) such firearms have greater firepower than many of the semiautomatic rifles covered by the new licensing requirement. It is unclear if the omission from the statute was intentional. If it was not, then competitors and hunters who wish to acquire a new semiautomatic shotgun without the difficulties of obtaining a license should consider acquiring one before the legislature further amends the statute to require one.