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Legal Information: New York

New York State Gun Laws

State Gun Laws

Basic Info and Definitions

What is the difference between federal and state gun laws? Why do I need to understand both?

In these gun laws pages, we refer to both “federal gun laws” and “state gun laws.”  The major difference between the two has to do with who makes the law, who prosecutes someone who violates the law, and what the penalty is for breaking the law.

One reason why it is important for you to know that there are these two sets of gun laws is so that you can understand all of the possible ways that the abuser might be breaking the law, and you can better protect yourself.  Throughout this section, we will be referring mostly to state laws.  Be sure to also read our Federal Gun Laws pages to see if any federal laws apply to your situation as well.  You will need to read both state and federal laws to see which ones, if any, the abuser might be violating.

If you are calling the police because you believe the abuser has violated a gun law, you do not necessarily need to be able to tell the police which law was violated (state versus federal) but local police cannot arrest someone for violating federal law, only for violating state/local laws.  Only federal law enforcement, the Bureau of Alcohol, Tobacco and Firearms (“ATF”), can arrest someone for violating federal laws.  If the local police believe that a state law is being violated, they could arrest the abuser and hand the case over to the state prosecutor.  If the local police believe a federal law is being violated, hopefully, the police department will notify the ATF or perhaps the U.S. Attorney’s office in your state (which is the federal prosecutor).  For information on how you can contact ATF directly to report the violation of federal gun laws, go to Who do I notify if I think the abuser should not have a gun?  If the abuser is breaking both state and federal laws, s/he might be prosecuted in both state and federal court.

What is a felony?

Throughout these gun law pages, we will refer to laws that make it illegal for someone convicted of a felony to have a gun. A felony is a more serious crime than a misdemeanor. It is defined under NY state law as a crime that is punishable by a prison sentence of more than one year.1 However, you cannot always tell if someone was convicted of a felony only by looking at the amount of time s/he actually served in prison since sentences are often reduced or pled down. If you are unsure if the abuser was convicted of a felony, you might want to talk to the prosecutor who handled the criminal case against the abuser to find out or go to the courthouse to search the conviction records.

1 NY Penal Law §10.00(5)

I am a victim of domestic violence and the abuser has a gun. Is that legal?

Under New York state law, a person can get a gun license or renew an existing gun license if s/he:

  1. is over age 21 - however, someone who was honorably discharged from the Armed Forces can be under 21;
  2. is of “good moral character,” which is defined as having the character, temperament and judgment necessary to be entrusted with a weapon and to use it only in a manner that does not endanger oneself or others;
  3. has not been convicted anywhere of, and does not have an outstanding arrest warrant for, a felony or a serious offense;
  4. is not a fugitive from justice;
  5. is not an unlawful drug user or addicted to any controlled substance;
  6. is not an undocumented immigrant or has not renounced his or her U.S. citizenship;
  7. has not been discharged from the Armed Forces under dishonorable conditions;
  8. has not been involuntarily committed to a mental health facility by a judge;
  9. has not been the subject of a report made pursuant to section 9.46 of the Mental Hygiene Law;
  10. has not had his/her gun license revoked or who is not under a suspension or ineligibility order;
  11. has successfully completed a firearms safety course and test in counties where this is required and where applicable; and
  12. has not had a guardian appointed for him/her based on subnormal intelligence, mental illness, incompetency, incapacity, condition or disease, or that s/he lacks the mental capacity to contract or manage his or her own affairs.1

If someone wants to get a license to carry a concealed firearm, there are additional restrictions. In addition to meeting the requirements above, the person must:

  • not have been convicted within the past five years of any of the following:
  • meet in person with the licensing officer for an interview to provide the following:
    • names and contact information for the applicant’s current spouse or domestic partner and anyone else living in the applicant’s home;
    • names and contact information for four character references who can attest to the applicant’s good moral character and confirm that the applicant has not engaged in any acts, or made any statements that suggest s/he is likely to do something that would result in harm to him/herself or others;
    • certification of completion of the training required; and
    • a list of former and current social media accounts of the applicant from the past three years.2

1 NY Penal Law § 400.00(1)
2 NY Penal Law § 400.00(1), (2)

Guns and Orders of Protection

I have a temporary order of protection against the abuser. Can his/her guns be taken away?

With a temporary order of protection, the judge should take away the abuser’s guns and suspend his/her gun license if any of the following exist:

  • the judge finds that there is a “substantial risk” that the abuser may use or threaten to use a gun against you or anyone else on your order of protection (such as your children);
  • the abuser has a prior conviction of a violent felony offense;  
  • the abuser has been convicted in the past of stalking; or
  • a judge found that the abuser “willfully” (purposefully) violated an order of protection in the past and, in committing such violation, the abuser caused you serious physical injury; or used or threatened to use a deadly weapon or dangerous instrument; or his/her behavior qualified as a violent felony offense.1 

1 NY Family Court Act § 842-a(1)(a), (1)(b)

 

 

 

 

I have a final order of protection against the abuser. Can his/her guns be taken away?

With a final order of protection, the judge is supposed to take away the abuser’s guns and revoke his/her gun license if the judge determines that either of the following are true:

  1. there is a “substantial risk” that the abuser may use or threaten to use a gun against you or anyone else on your order of protection, such as your children; or
  2. the judge believes that the conduct (acts) which resulted in your getting the order of protection was based upon the abuser:

Federal laws, which apply to all states, restrict an abuser’s right to have a gun if you have a final protection order against him/her that meets certain requirements even if the judge does not specifically include on the order that s/he cannot have a gun.  Go to the Federal Gun Laws page to get more information.

1 NY Family Court Act § 842-a(2)(a), (2)(b)

 

Is there anything I can do to make it more likely that the abuser's gun is taken away when I get an order of protection?

Here are some suggestions of what you can do:

  • If the abuser has a gun, tell the judge how many guns s/he has, and if s/he has ever threatened you with a gun(s).
  • Ask the judge to check the box on the order of protection form that says the abuser (respondent) must surrender his/her guns and the box that says the respondent’s firearm license is suspended or revoked. If the judge agrees to do so, look to make sure that the box is checked on your order before leaving the courthouse.

If the judge takes away the guns, you may also want to ask the judge to:

  • Require the abuser to give his/her guns to the police, or require the police to go to the abuser’s house and get them.
  • Explain what will happen to the abuser’s guns (where they will be held).
  • Make it clear to both you and the abuser how long the guns will be kept away from the abuser.
  • Order that the police notify you when the guns are returned to the abuser.

If the judge orders the abuser's guns to be taken away in my order of protection, how will they be taken away?

If the abuser’s guns are taken away by the judge when you get an order of protection, the judge should write on the order the date, time, and place where the abuser is supposed to surrender his/her guns. If possible, the judge is also supposed to describe the guns to be turned in. The suspension of the abuser’s gun license will be in effect for as long as the order of protection lasts.1

The abuser has the option of either giving the guns to a law enforcement agency for the period of time that you have the order of protection or selling them to a licensed firearms dealer.2

If the abuser refuses to surrender the weapons, the judge should order law enforcement to search and seize any firearms the abuser has. The abuser then has the right to a hearing within 14 days from when the order was issued. Notice of the seizure must be given to the domestic violence registry.3

1 NY Family Court Act 842-a(4), (5)(a)
2 NY Penal Law § 400.05(6)
3 NY Family Court Act 842-a(1)(c), (6)(b), (7)

Guns and Criminal Convictions

If the abuser has been convicted of a crime, can s/he legally keep or buy a gun?

New York state law says that a person cannot have a “rifle or shotgun” if s/he has been convicted of a felony or serious offense.1 Also, a person cannot have any “firearm” outside of his/her home or place of business if s/he has been convicted of a felony or a class A misdemeanor within the past five years.2

In addition, a person cannot get a license to carry a concealed firearm, if s/he was convicted within the past five years of any of the following:

1 NY Penal Law § 265.01(4)
2 NY Penal Law § 265.02(5)(ii)
3 NY Penal Law § 400.00(1), (2)

How can I find out if the abuser has been convicted of a crime?

Misdemeanor and felony records are open to the public, but they are not always easy to access. If you know the exact courthouse where your abuser may have been convicted, you can go to the courthouse and ask the clerk of court for access to those records.

Domestic violence misdemeanor and felony records are also kept in the National Instant Criminal Background Check System (NICS). However, no one other than law enforcement officials and licensed firearm sellers are allowed to search the NICS. Your local police department may be willing to search NICS for you if you ask, but they are not required to do so.

To read more about the NICS, please see the question What will happen if the abuser tries to buy a gun when s/he isn’t supposed to?

Can the police remove a gun from the scene of a family offense?

New York state law says that the police officer who responds to a report of a family offense may take custody of any gun and/or license to carry that s/he finds regardless of whether an arrest is made. Often the gun is found because the victim or abuser consents to the home being searched, or there is another lawful reason for the police to do a search.

If a gun is taken, then the officer will give the abuser a receipt with information about the gun and information about the process for getting it back. The gun has to be returned within 48 hours unless the abuser is arrested, a protection order is issued that prohibits firearm possession, or it is determined that there is another reason why the abuser cannot have the gun.1

1 NY Criminal Procedure Law § 140.10(6)

The Abuser Isn't Supposed to Have a Gun...Now What?

Who do I notify if I think the abuser should not have a gun?

If you think the abuser is violating state firearm laws, you can call your local police or sheriff department or the State Police.  If you think the abuser is violating federal firearm laws, you can call the Bureau of Alcohol, Tobacco and Firearms (ATF).

You can find contact information for sheriff departments in your area on our NY Sheriff Departments page.

You can find ATF field offices in New York on the ATF website.  For reporting illegal firearm activity, a person can also call 1-800-ATF-GUNS (1-800-283-4867).  Many ATF offices have victim advocates on staff (called “victim/witness coordinators”) and so perhaps you may ask to speak one of these advocates if you are having a hard time connecting with (or receiving a call back from) an ATF officer.

A local domestic violence organization in your area may also be able to answer your questions and assist you in talking to the necessary law enforcement officials.  You will find contact information for organizations in your area on our NY Advocates and Shelters page.

Note: Generally, the abuser does not have to have knowledge of the law in order to be arrested for breaking the law.  If the abuser has or buys a gun in violation of the law, the abuser can be arrested, whether or not s/he knows that s/he was in violation of the law.1

1United States v. Lippman, 369 F. 3d 1039 (8th Cir. 2004); United States v. Henson, 55 F. Supp. 2d 528 (S.D. W.V. 1999)

Will the abuser go to jail for having a gun when s/he isn't supposed to?

New York state law says that any violation of the New York laws regarding gun licenses is a Class A misdemeanor that can be punished by a fine of up to $1,000, jail time for up to one year, or both.1

In addition, if someone is convicted of a felony or a “serious offense,” the judge is required to order the defendant to immediately surrender all firearms, rifles, and shotguns that s/he owns or that are in his/her possession. The judge will then instruct the local police to immediately notify the court when the defendant has surrendered his/her firearms, rifles and shotguns.2

Note: Generally, the abuser does not have to have knowledge of the law in order to be arrested (and convicted) for violating the law. If the abuser has a gun or buys a gun in violation of the law, the abuser can be arrested and convicted, whether or not the abuser knows s/he was in violation of the law. “Ignorance of the law” is no excuse or defense.3

1 NY Penal Law §§ 400.00(15); 80.05(1); 70.15(1)
2 NY CPL § 370.25(1), (2)
3 See, for example, United States v. Denis, 297 F.3d. 25 (1st Cir. 2002); United States v. Lippman, 369 F. 3d 1039 (8th Cir. 2004); United States v. Henson, 55 F. Supp. 2d 528 (S.D. W.V. 1999).

What will happen if the abuser tries to buy a gun when s/he isn't supposed to?

Before purchasing a gun from a licensed firearm dealer, all buyers must undergo a criminal background check that is processed through the National Instant Criminal Background Check System (NICS). If the abuser has a qualifying protection order against him/her, or has been convicted of a felony or domestic violence misdemeanor in any state, those records should be in the NICS, which should prevent the abuser from buying a gun. Not all states have automated record keeping systems, making it more difficult to process the criminal background check, and some criminals and abusers do slip through the system. Also, it is important to know that background checks are not required for private and online gun sales.

If the abuser is able to purchase a gun and you believe that s/he should not be able to have one under the law, you can alert the police, and ask that his/her gun be taken away and perhaps the police will investigate. Generally, it is not a good idea to assume that because the abuser was able to buy a gun, it is legal for him/her to have one.

More Information and Where to Get Help

I do not have an order of protection against the abuser, and s/he has not been convicted of a crime. Can s/he have a gun?

In New York, there can be other reasons that make gun possession illegal aside from being the respondent on an order of protection and being a convicted criminal. A person cannot have a gun license unless s/he is:

  1. over age 21 - however, someone who was honorably discharged from the Armed Forces can be under 21;
  2. is of “good moral character,” which is defined as having the character, temperament and judgment necessary to be entrusted with a weapon and to use it only in a manner that does not endanger oneself or others;
  3. is not a fugitive from justice;
  4. does not have an outstanding arrest warrant for allegedly committing a felony or serious offense;
  5. is not an unlawful drug user or addicted to any controlled substance;
  6. is not an undocumented immigrant or has not renounced his or her U.S. citizenship;
  7. has not been discharged from the Armed Forces under dishonorable conditions;
  8. has not been involuntarily committed to a mental health facility by a judge;
  9. has not been the subject of a report made pursuant to section 9.46 of the Mental Hygiene Law;
  10. has not had his/her gun license revoked or who is not under a suspension or ineligibility order;
  11. has successfully completed a firearms safety course and test in counties where this is required and where applicable; and
  12. has not had a guardian appointed for him/her based on subnormal intelligence, mental illness, incompetency, incapacity, condition or disease, or that s/he lacks the mental capacity to contract or manage his or her own affairs.1

In addition, there are other factors that could disqualify someone from getting a license to carry a concealed firearm. See I am a victim of domestic violence and the abuser has a gun. Is that legal? for more information.

Even if the abuser may legally be able to possess a gun, you can still make a plan for your safety. See our Staying Safe page for more information. You can also contact your local domestic violence organization for additional help. You may want to talk to them about whether leaving the area - either long term or for a little while - might help improve your safety. See our NY Advocates and Shelters page to find a local domestic violence organization near you.

For additional information on gun laws in New York, you can go to the Giffords Law Center website.

Also, federal laws, which apply to all states, restrict an abuser’s right to have a gun under other circumstances. Go to Federal Gun Laws to get more information.

1 NY Penal Law § 400.00(1)

I've read through all of this information, and I am still confused. What can I do?

Trying to understand both federal and state law can be confusing, but there are people out there who can help you better understand the law and your rights under the law.

  • You can write to our Email Hotline;
  • You can contact a local domestic violence organization in your area (see our NY Advocates and Shelters page);
  • You can also contact the National Center on Protection Orders and Full Faith & Credit to get more information about the federal firearm law and how it applies to you at 1-800-903-0111 x 2.