Relates to the private sale or disposal of firearms, rifles and shotguns

Summary of provisions

Section 1 amends section 898 of the general business law to broaden the definition of "immediate family" to include relatives by blood, adoption or marriage as eligible to receive a long gun without the necessity of a background check. It also exempts a holder of valid NYS pistol license from the requirement to obtain a background check before taking possession of a long gun.

Section 2 provides for an immediate effective date.

Existing law

Current law requires certain blood or close relatives of a gun owner to undergo a background check before the gun owner can transfer a firearm to the relative. The exemption is narrow and limited in scope. Current law also provides no waiver for a pistol licensee in spite of the legal requirement that a licensee be fingerprinted and undergo a comprehensive background check before a license is issued.

Justification

For generations before the SAFE Act was hastily adopted, parents and relatives gave or sold firearms to family members to keep heirlooms within a family or to mark meritorious or significant occasions, such as graduations, completion of sportsmen's education, birthdays or Christmas. The SAFE Act changed that without any evidence that these kinds of transfers posed a threat to public safety.

This extreme and draconian provision of Governor Cuomo's SAFE Act defines the term "overreach." It requires that a close relative known personally to a gun owner undergo a background check before taking possession of a legal rifle or shotgun. Under the SAFE Act, for example, a grandparent can not transfer to a grandchild a family heirloom rifle or shotgun, or a gift to mark a special event such as a birthday or graduation, without the ludicrous requirement that the grandchild undergo a background check. The same applies to a gift or sale to a nephew, niece, brother or sister-in-law -- relatives by blood or marriage known to the donor. Oddly, the SAFE Act does not include the term "parent" in the definition of "immediate family," raising the question whether an adult child could gift a hunting rifle to his parent without the parent undergoing a background check.

While the intent of the law was to ensure that firearms are not transferred to those legally barred from owning them, it has created new obstacles to the time honored tradition of passing heirloom or historic firearms to relatives, or gifting firearms to mark a special occasion or milestone, further burdening the free exercise of one's Second Amendment rights. Supporters of the original legislation did not demonstrate any correlation between relatives gifting long guns to their children, grandchildren, nieces, nephews or parents, and incidents of violence. For years, families have given firearms as gifts or passed them down to succeeding generations without incident. If approved, this bill would restore a measure of sanity and common sense to the hastily approved SAFE Act by allowing an eligible adult to sell, transfer or otherwise gift a legal firearm to a relative known to him or her without a background check.

In addition, the proposed bill exempts holders of valid NYS pistol licenses from the background check requirement when taking possession of a long gun through private sale, gift or transfer. Under the Penal Law, every applicant for a pistol license must undergo a comprehensive criminal and mental history background check before a licensing officer issues a pistol license. To require additional background checks of a licensee in order to accept a rifle or shotgun is duplicative, waste government's time and resources, and makes little sense particularly in light of the new requirement that licenses be updated every five years and existing legal safeguards. Licensing officers revoke or suspend the licenses of pistol license holders charged with or convicted of crimes, so this exemption poses no public safety hazard.

Finally, the SAFE Act requires that the required background check be conducted by a dealer, although dealers are under no obligation to do so and their fee is capped at ten dollars. Should a dealer decline to conduct a transaction, an eligible gun owner could be unable, or find it difficult, to legally transfer a firearm to a family member outside the current definition of "immediate family," such as a parent, grandchild, brother or sister, nephew, niece or in-law.

It should be noted that neither this bill, nor the subject section of law, applies to the sale or transfer of handguns. Someone seeking to take legal possession of a handgun or pistol must possess a valid New York State pistol license and must obtain a purchase coupon from the local licensing authority.

Section 265 of the penal law prohibits the transfer or sale of a firearm to someone barred by law from possessing a weapon. This bill modifies an extreme and ineffective portion of the SAFE Act as it pertains to transfers of long guns among family members and to law abiding citizens who have withstood a rigorous background check in order to hold a NYS pistol license.

Legislative history

New bill

Fiscal implications

None

Effective date

Immediate