The Definition of a Black Powder Pistol in New York State
Generally, the New York legislature defines a revolver or pistol under Penal Law § 265.00(3) and defines an antique firearm (including black powder pistols) under Penal Law § 265.00(2). Specifically, Penal Law § 265.00(2) excepts from classification as a firearm, any "(a) weapon specified in subdivision one of this section which is (i) produced prior to 1899, or (ii) has been designated as a collector’s item by the commissioner of the division of criminal justice services (hereinafter "the ‘Commissioner’"); or (b) any firearm (the PMI may consider to be an antique firearm but not the Commissioner), whether or not designed or redesigned for using rimfire or conventional centerfire fixed ammunition, or a firearm of any other type, including a concealed pistol, revolver or other weapon, which operates by the ignition of gunpowder, the control of which does not use the energy generated by the propellant, or the pressure arising from such ignition, to effect the discharge of the missile from the weapon in which it is contained . " The Commissioner notes that "antique firearm" includes those that may be fitted with revolver or shotgun ammunition, (e.g., classic cowboy shooting competitions) but may not use modern-day shotgun ammunition. See Regulations of Commissioner of Police 37 RCNY § 2-03 (stating that "actual `black powder’ revolvers and shotguns are considered by the Bureau to be `antiques.’"). Black powder revolvers and pistols may be required for use in cowboy shooting competitions as they most accurately depict the revolvers and pistols of their modern-day counterparts. Those who wish to utilize antique firearms for target practice may be able to purchase modern-day replicas that are still classified as antiques.
Regulations on the Possession of Black Powder Pistols
As with most laws regarding firearms, the first thing you should know is that black powder pistols are regulated. You can’t just point and click your way to a new one. New York law states that anyone looking to purchase or own a black powder pistol must apply and be granted a license for possession of such a weapon. The application is fairly short, but it will require the applicant to provide employment information, a basis for the request, and personal information that can be verified. In addition, individuals who are listed as "are not safe and fit to be entrusted with the custody and control of a pistol" cannot own one in NY. You must be 21 years old to apply and granted an NY permit.
Fingerprints are required to process the application along with a photo ID. Once an application is submitted and accepted, a background check is run to determine if there are any issues with your past. If not, a permit will be issued within six months. From this point on, you are legally allowed to own and carry black powder pistols in public and private within the state of New York. Obviously, if you were to file and have your application rejected, your request for ownership of a black powder pistol has also been rejected.
If, for whatever reason you want to sell your black powder pistol, you must first surrender your permit before a sale will be authorized.
The Law on the Carrying and Transportation of Black Powder Pistols
In New York, the current legal interpretation is that black powder pistols are classified as "antiques" pursuant to Penal Law §265.00(3) and thus not subject to the same regulations as modern pistols and revolvers. It is important to note that this issue is currently being litigated in the New York State courts and ATF has advised the plaintiffs that a determination by a New York State court does not bind the federal government. New York Pistol Association has a number of cases on appeal before the Second Circuit (with regards to handguns in general) and it is believed that the Second Circuit will rule sometime in 2017.
In addition, you should also be aware that in August 2016, the NYC Police Department issued a statement that they would not currently register the black powder pistols to city gun owners within its jurisdiction.
NY Penal Law §265.20(5) creates an exemption for black powder pistols and revolvers. Under this provision, a person is not prohibited from "possessing, or transporting through the state or between its municipalities, antiques" as long as the person possesses proof of identity and age at all times while possessing a black powder pistol.
With respect to transport within New York which is not otherwise prohibited, it is required that the antique gun be "unloaded and enclosed in a non-transparent, locked container or be secured with a nontransparent tie."
While not currently permitted in New York City, NYC gun owners within the jurisdiction of the NYC Police Department, who lawfully hold a license to possess a black powder pistol, may transport such firearms in accordance with New York Penal Law §265.20(5) subject to the general storage and transport requirements set forth in General Business Law §396-aa which sets forth the basic storage guidelines for long guns within the home in NYC. Under this law, long guns must be stored in a secure gun box or other secure container or equipped with an on/off lockable mechanism which is integrated into or attached to the firearm. Ammunition or any ammunition clip must not be stored within the immediate vicinity of a long gun. This law does not apply to permits, and ammunition clips are not considered a container.
Regulations on Shooting and Hunting with Black Powder Pistols
The use of black powder pistols in New York can be further limited by regulations pertaining to hunting or shooting sports. Under the Environmental Conservation Law, a black powder pistol is any pistol or revolver firing black powder ammunition with an exposed hammer using a single pull trigger and loaded at the muzzle and not dangerously modified. Under the Law, a pistol or revolver must also have a barrel length of not less than 8 inches from the face of the breech to the muzzle and of .45 caliber (i.e. 11.43 mm) or greater and use a projectile designed for pistols or revolvers giving an average muzzle velocity of 1000 ft./s (305 m/s), or 81 ft-lb. (110 J) measured at 15 ft. (5m). These uses of black powder pistols can be further limited by local ordinances passed by the city, county, or town governments.
In accordance with the Environmental Conservation Law, black powder pistols may only be used on certain lands and under certain restrictions and at the certain times of year. For example, in New York City, the Department of Parks and Recreation and New York State law prohibits the use or possession of any firearm in parks during the regular hunting season unless conducted under the authority of a permit issued by the Department of Parks and Recreation . Black powder pistols are subject, like other firearms, to the laws governing use of firearms in New York City. However, black powder pistols may be used in the remainder of the State of New York not subject to special restrictions. These lands include private lands and State lands, public lands, Wildlife Management Areas, and Environmental Conservation law, Section 11-0933-b(4) defines these lands as follows:
(a) Private lands in this state not otherwise designated as open to hunting and trapping;
(b) State lands designated as wildlife management areas, nature preserves, administrative sites, camps, environmental education centers, historic sites, other state lands as defined in subdivision two of section 23-0103 of this chapter and state reforestation areas, forestry administrative units and land owned by an agency in the department of environmental conservation;
(c) Town lands and parks designated by the town board not to be closed pursuant to the provisions of section 64 of the town law.
The History and Significance of Black Powder Pistols
A pivotal aspect of New York’s legislative protection for black powder pistols post-NYSRPA is the historical and cultural significance of these particular handguns. While all handguns are not treated equally under New York’s gun laws, the like is true with black powder guns and licensing. As a first and foremost matter, black powder pistols qualify as antiques under 18 U.S.C. § 921(a)(16)(C), 13 C.F.R. § 553.1(a)(2) and 27 C.F.R. § 555.141(b) to fall under an exception to the National Firearms Act’s (NFA) definition of a "firearm" or "firearm silencer." They further qualify as antiques under New York Penal Law § 265.00(3) pursuant to People v. Perkins, 546 N.Y.S.2d 793, 794 (App. Div. 3rd Dept. 1989) and People v. Perry, 31 N.Y.S.3d 867 (App. Div. 4th Dept. 2016). Thus, black powder guns have long been distinguished from "modern" firearms and precluded from many of the regulations imposed on those weapons.
With respect to licensing and ownership, black powder pistols are treated differently. By way of exception to NY Penal Law § 265.20(a)(4), small black powder pistols less than 12 inches in length fall outside the licensing requirements applicable to handguns. Pen. L. § 265.00(3). In addition, black powder pistols do not require a permit to possess and may be purchased by a person not half the age (18 years old) otherwise required to appear before the supervising officer or license issuing authority in order to obtain a permit. Pen. L. § 265.20(7). This latter exception was revised from an earlier version limiting such purchases to persons "over seventy years of age" or persons "over eighteen years of age and under twenty-one years of age where the latter have completed a course of target practice under the supervision of a qualified instructor, as prescribed by the commissioner, and obtain from the department [of criminal justice services] a certificate of qualification." S. 1301, p. 845 (1928) (former NY Penal Law § 1891); Accardi, p. 82 (1958) (revising the Parliament’s 1928 law to lower the qualification and age requirement to 18 years of age). Thus, given the antique status of black powder pistols, the exception to licensing requirements and the reduced safeguards, New York’s protection post-NYSRPA is particularly appropriate.
While black powder pistols were initially produced for military use, black powder pistols have found a place for other uses such as in sport-shooting. See C.S. Knight, Introduction: The Gun Collector’s Magazine 1 (1999). In addition, unlike pre-19th century muzzle-loaded handguns, many black powder pistols are, and have been, ornate and artistic creations; thus resulting in the creation of collections instead of merely collecting firearms. See Black Powder Pistols, Arms & Collecting: History, Applications, Mechanisms and Safety, Guns, Pistols, Antique, 1-42 (2002). Black powder pistols have been and continue to be artistically manufactured, and thus subject to historical and cultural merit. As such, NYS law rightly distinguishes these weapons on these grounds.
The Penalties Associated With Violating the Law on Black Powder Pistols
When an individual is found in possession of a black powder pistol, it can lead to criminal charges that carry serious legal ramifications. Depending on the particulars of the case, the defendant could face misdemeanor or felony criminal charges. In most instances, violations of black powder pistol laws in New York will be charged as a Class A misdemeanor. Class A misdemeanors in New York are handled at the county level. Violations of black powder pistol laws are typically prosecuted in the local town or village court where the offense occurred. However, a local prosecutor can transfer the case to the county court. The penalties for Class A misdemeanor crimes , such as violations of the NYS black powder pistol laws, can be up to a year in jail and up to $1,000 in fines. Furthermore, there are certain collateral consequences associated with any criminal charge. These include the stigma of a felony or misdemeanor criminal charge, loss of the ability to possess firearms, the possible loss of your professional license and the resulting damage to employment and household income, to name a few. If you possess a black powder pistol or if you are facing criminal charges for black powder pistol possession, seek out the counsel of an experienced criminal defense attorney.