Legal non-NFA short barrel "other" or "firearm"

[freddy]

So in summary, depending on interpretation of the statutes, the thought process is as follows. The (full featured AND working mag release) Franklin Armory XO 26 R2 is compliant in NY because:

A. It is NOT a 'rifle' because it was not designed, made, and intended to be fired from the shoulder (no shoulder stock), see NY Penal Law § 265.00(11)

B. It is NOT a 'AOW' because it is longer than 26 inches, see 26 USC § 5845

C. It is NOT a 'handgun' because it is not designed to be held and fired by use of a single hand, and is over 26", see 18 USC § 921(29)

D. It is NOT an 'assault pistol' in NY (see NY Penal Law § 265.00(22c)) because it is does not meet the Federal definition of a pistol, see 18 USC § 921(29)

E. It is NOT an 'assault weapon' in NY because it is not a rifle, pistol, or shotgun, see NY Penal Law § 265.00(22)

F. It is NOT a 'firearm' because it is not a rifle, pistol, or shotgun, see NY Penal Law § 265.00(3)

G. It IS therfore an 'other' (Federal statute) as originally built and shown (working mag release), and NY compliant if used with 10 round magazines​

Is this the argument? Did I miss anything? If I consult an attorney I want to present the complete argument. I will report my findings.

EDIT: added 'assault weapon' definition to list, thanks to@Bullet Guy
EDIT: added 'firearm' definition to list, thanks to @Willjr75
EDIT: attempting to add statutes

 

[Eddie Gunks]

So in summary, depending on interpretation of the statutes, the thought process is as follows. The (full featured AND working mag release) Franklin Armory XO 26 R2 is compliant in NY because:

A. It is NOT a 'rifle' because it was manufactured to be fired without a shoulder stock (NY and Federal statutes)
B. It is NOT a 'AOW' because it is longer than 26 inches (NY and Federal statutes)
C. It is NOT a 'pistol' because it was manufactured to be fired with two hands and is over 26" (Federal statutes)
D. It is NOT an 'assault pistol' in NY because it is does not meet the Federal definition of a pistol
E. It IS therfore an 'other' as originaly built and shown (working mag release), if used with 10 round magazines

Is this the argument? Did I miss anything? If I consult an attorney I want to present the complete argument. I will report my findings.

Basically I cannot be a "assault weapon "because the definition of assault weapons are rifles, pistols, or shotguns by New York State. The Definition of this firearm is "other ". New York has not defined and other as an assault weapon.

Everything else above is just as you say.

No reason to really consulted a lawyer as these definitions would hold true in court. You might just want to give them a heads up put him on retainer so when you call him he'll be there to have this dismissed.

Good luck

 

[pmcjuryny]

So in summary, depending on interpretation of the statutes, the thought process is as follows. The Franklin Armory XO 26 R2 is compliant in NY because:

A. It is NOT a 'rifle' because it was manufactured to be fired without a shoulder stock (NY and Federal statutes)
B. It is NOT a 'AOW' because it is longer than 26 inches (NY and Federal statutes)
C. It is NOT a 'pistol' because it was manufactured to be fired with two hands and is over 26" (Federal statutes)
D. It is NOT an 'assault pistol' because it is does not meet the Federal definition of a pistol
E. It IS therfore an 'other' as originaly built and shown (working mag release), if used with 10 round magazines

Is this the arguement? Did I miss anything?

Yeah that's pretty much my thought process

Sent from my SM-G900V using Tapatalk

 

[freddy]

Basically I cannot be a "assault weapon "because the definition of assault weapons are rifles, pistols, or shotguns by New York State. The Definition of this firearm is "other ". New York has not defined and other as an assault weapon.

Everything else above is just as you say.

No reason to really consulted a lawyer as these definitions would hold true in court. You might just want to give them a heads up put him on retainer so when you call him he'll be there to have this dismissed.

Good luck

Thank you for the feedback.

 

[freddy]

Yeah that's pretty much my thought process

Sent from my SM-G900V using Tapatalk

Thank you!

 

[hoodfu]

I agree that this would be non-NFA and would be legal in NY as it doesn't meet the definition of a firearm as per PL 265 definitions. I was just about to get one going for myself but then the SAFE Act passed and I decided it wouldn't be worth the hassle seeing as restrictions were getting worse, not better. After we lost the SAFE Act lawsuits, it cemented that it wasn't worth the possible hassle. IMHO, if you're going to do this, don't put a pistol brace on it. Although fine federally, if put to a jury in NY, I'd say they'd call it a stock and you'd have an NY "firearm". You also don't want anything that can be removed from the gun that could bring the OAL below 26" like a non-pinned muzzle device, pistol brace, or pistol buffer tube that's not red loctited or epoxied in there. The police aren't your friend when they've got your property alone in an evidence room.

 

[freddy]

I agree that this would be non-NFA and would be legal in NY as it doesn't meet the definition of a firearm as per PL 265 definitions. I was just about to get one going for myself but then the SAFE Act passed and I decided it wouldn't be worth the hassle seeing as restrictions were getting worse, not better. After we lost the SAFE Act lawsuits, it cemented that it wasn't worth the possible hassle. IMHO, if you're going to do this, don't put a pistol brace on it. Although fine federally, if put to a jury in NY, I'd say they'd call it a stock and you'd have an NY "firearm". You also don't want anything that can be removed from the gun that could bring the OAL below 26" like a non-pinned muzzle device, pistol brace, or pistol buffer tube that's not red loctited or epoxied in there. The police aren't your friend when they've got your property alone in an evidence room.

These are good points, thank you. Is it correct that solely the ATF has ruled pistol brace legal? Any case law (or statutes) on the pistol brace in NY?

 

[Airborneguy]

Let's say this was all true... then why can't every just remove the butt stocks from their AR's and say the same?

 

[spat]

Let's say this was all true... then why can't every just remove the butt stocks from their AR's and say the same?

Because once it has ever been a rifle, then it becomes a weapon "made from a rifle".

 

[hoodfu]

These are good points, thank you. Is it correct that solely the ATF has ruled pistol brace legal? Any case law (or statutes) on the pistol brace in NY?

I haven't seen anything other than seeing lots of people put them on their builds in NY, and then other people mentioning that NYSP has said they consider them a stock. The number of people in the whole state who have them on their fixed mag pistol build is probably measurable with your hands. I did see an article today about a heroin bust on Long Island where one of the charges was for an assault weapon that had a pistol brace, but it wasn't fixed mag and had a hi-cap. Pic: https://pbs.twimg.com/media/C-7P-MDXYAIiiyp.jpg:large

 

[freddy]

I haven't seen anything other than seeing lots of people put them on their builds in NY,

Does this mean rifle builds?
(Vs where you state: "The number of people in the whole state who havethem on their fixed mag pistol build is probably measurable with your hands. ")

 

[Eddie Gunks]

. You also don't want anything that can be removed from the gun that could bring the OAL below 26" like a non-pinned muzzle device, pistol brace, or pistol buffer tube that's not red loctited or epoxied in there. The police aren't your friend when they've got your property alone in an evidence room.

11.5 barrel and a carbine buffer tube gives you 26+inches. So no matter what you "take off". You cant get below 26+ inches.

A jury cant call a brace a stock. Yhey cant just make shit up

 

[Eddie Gunks]

Let's say this was all true... then why can't every just remove the butt stocks from their AR's and say the same?

You can remove the stock from your rifle and keep a 16+ barrel with no worries.

If you put a <16 inch barrel then That makes a short barrel RIFLE

 

[Airborneguy]

Because once it has ever been a rifle, then it becomes a weapon "made from a rifle".

Ok, so build it that way from the start (not that it matters, you gonna carry a video around showing the build?)

 

[freddy]

A jury cant call a brace aYhey cant just make shit up

Ha, that is funny!

 

[spat]

Ok, so build it that way from the start (not that it matters, you gonna carry a video around showing the build?)

Yeah, if you build it from a stripped lower, or something else that doesn't have a serial number that said "rifle" when it was made, and you aren't worried about some overzealous prosecutor finding a video on Facebook showing it as a rifle, *and* you check the boxes we have discussed earlier in this thread, *and* you've got a good lawyer on speed dial for when the cop who doesn't have a 4 year degree in firearms law sees it and arrests you, you would be good to go....

 

[freddy]

Ok, so build it that way from the start (not that it matters, you gonna carry a video around showing the build?)

"Officer, before you cuff me, please allow me to to play you this video of me assembling this 'other'."

 

[Marine Cpl]

"Officer, before you cuff me, please allow me to to play you this video of me assembling this 'other'."

That's the jist of it. Not worth the risk in my opinion. Then we have the points made before that they will still call it a pistol even though it is not.

That'll be in a courtroom and not from your couch at home.

 

[freddy]

That's the jist of it. Not worth the risk in my opinion. Then we have the points made before that they will still call it a pistol even though it is not.

Still, you have to admit that for home defense it is appealing to have a full functioning (albeit 10 round) proper handling/ergonomic CQB 'other'. In that role (kept at home) it would be very very unlikely to ever go to court.

 

[Marine Cpl]

Still, you have to admit that for home defense it is appealing to have a full functioning (albeit 10 round) proper handling/ergonomic CQB 'other'. In that role it would be very very unlikely to ever go to court.

Not for me, not when the weapon in question is questionable. If you use that and I use a pistol, rifle, or shotgun, I'm staying home. You will not.

 

[freddy]

For me, not when the weapon in question is questionable. If you use that and I use a pistol, rifle, or shotgun, I'm staying home. You will not.

Point taken.

 

[Marine Cpl]

I'm just throwing it out there on what could happen and what you need to possibly be prepared for. In no way am I saying that you shouldn't do it. Risk vs Reward kind of thing.

That's the reason Bulletguy won't sell it in his store. He's not willing to defend it for someone else on his dime and rightfully so. He may however be willing to defend himself and take that risk.

 

[freddy]

I'm just throwing it out there on what could happen and what you need to possibly be prepared for. In no way am I saying that you shouldn't do it. Risk vs Reward kind of thing.

That's the reason Bulletguy won't sell it in his store. He's not willing to defend it for someone else on his dime and rightfully so. He may however be willing to defend himself and take that risk.

Thanks man, I appreciate your time and thoughts.

 

[hoodfu]

I'd say there are better less controversial options for home defense. The new Mossberg Shockwave and the Keltec KSG for starters. Both are just a hair over 26" and have the ability to put far more than 10 projectiles down range before reloading.

 

[Eddie Gunks]

Ok, so build it that way from the start (not that it matters, you gonna carry a video around showing the build?)

as long as it did not start as a rifle then you are GTG. it is very easy to look up bushmaster etc etc. and find out if it was a rifle or not.

repeat after me: i built a pistol 1st...then changed it to a rifle.

you can go pistol to rifle and back....but not the other way.

 

[Airborneguy]

All on paper semantics though which I'm not at all convinced would hold up in court.

 

[hoodfu]

All on paper semantics though which I'm not at all convinced would hold up in court.

This specific thing has already gone to the SCOTUS and the person won against the ATF. As long as a lower is transferred as an other or a pistol, it can then be made into a rifle and back again. Not so for a rifle. This particular thing has been solidly decided already.

 

[Marine Cpl]

This specific thing has already gone to the SCOTUS and the person won against the ATF. As long as a lower is transferred as an other or a pistol, it can then be made into a rifle and back again. Not so for a rifle. This particular thing has been solidly decided already.

At a state court or federal court?

Edit. Nevermind. It's of no revelance if the state declares it a pistol.

 

[Eddie Gunks]

All on paper semantics though which I'm not at all convinced would hold up in court.

All laws are paper semantics. You should know this better than anyone else.

 

[Eddie Gunks]

All on paper semantics though which I'm not at all convinced would hold up in court.

Funny. They let REAL crimnals go that break REAL laws that have REAL paper....that has already been proven in court.......ALL WITH A COURT APPOINTED ATTORNEY.

So what makes you think that the "paper semantics" wont hold up.