Yesterday we posted a story about an Empire State state probation officer at the center of a swirling controversy about New York state firearms law. Officer Kelly Miazga got into hot water for instructing her two pre-teen sons on gun safety with a hands-on demo. We pointed out that the Empire State prohibits its citizens from touching—yes touching—a firearm without a license to do so. Some of our readers figured it couldn’t really be as bad as all that. So we asked noted New York criminal defense attorney and firearms law wiz Peter Tilem [above] to give us the full scoop on the crazy train of rights abrogation surrounding this storm in a teacup . . .

As a New York Firearms lawyer, former firearms prosecutor and NRA certified firearms instructor, when I see an article like the one in timesunion.com it’s hard to know where to start. Do I begin by highlighting an important State Assemblyman who clearly doesn’t know anything about the laws he’s passing? Or do I begin with the laws themselves, regulations that are so complex and absurd that no one, certainly not a lay person, can understand them?

Let’s go with this . . .

New York State Penal Law prohibits possession of an unloaded firearm. Even at a gun range. If ammunition is present, it may be a felony. Penal Law § 265.20 lists a number of limited exceptions to this general rule—none of which would apply to a case of a probation officer giving her child an unloaded gun to handle as part of a safety demonstration.

The only exceptions that are even potentially relevant to our discussion are in New York Penal Law 265.20 subsections 7 and 7-e. Both of these exceptions apply to possession “at an indoor or outdoor shooting range.” Subsection 7 requires that it be “for the purpose of loading and firing, of a rifle or shotgun. . .” Which is obviously not the case here since the firearm in question was a pistol, not a shotgun or rifle.

In addition for subsection 7 to apply it must be . . .

. . . by a person under sixteen years of age but not under twelve [and] under the immediate supervision, guidance and instruction of (a) a duly commissioned officer of the United States army, navy, air force, marine corps or coast guard, or of the national guard of the state of New York; or (b) a duly qualified adult citizen of the United States who has been granted a certificate as an instructor in small arms practice issued by the United States army, navy, air force or marine corps, or by the adjutant general of this state, or by the national rifle association of America, a not-for-profit corporation duly organized under the laws of this state; or (c) a parent, guardian, or a person over the age of eighteen designated in writing by such parent or guardian who shall have a certificate of qualification in responsible hunting, including safety, ethics, and landowner relations-hunter relations, issued or honored by the department of environmental conservation; or (d) an agent of the department of environmental conservation appointed to conduct courses in responsible hunting practices pursuant to article eleven of the environmental conservation law.

Unless the probation officer/mother is a certified firearms instructor, has a certificate in responsible hunting or fits into another category, he will not qualify. Subsection 7-e similarly authorizes the possession of a pistol or revolver at a range . . .

. . . for the purpose of loading and firing the same by a person at least fourteen years of age but under the age of twenty-one who has not been previously convicted of a felony or serious offense, and who does not appear to be, or pose a threat to be, a danger to himself or to others; provided however, that such possession shall be of a pistol or revolver duly licensed to and shall be used under the immediate supervision, guidance and instruction of, a person specified in paragraph seven of this subdivision.

Again: this only applies at a gun range, for the purpose of loading and firing (not for the purpose of cleaning or learning safe operation). The exemption is limited to individuals ranging in age from 14 to 21 years old. It is noteworthy, but not necessarily relevant to this article, that no such exemption exists for adults over 21. 

The second issue—whether the officer’s children would be considered to be in possession of the firearm—-is obvious to everyone—except the Assemblyman.

Firearms possession in New York can be actual or constructive. They are not mutually exclusive. Because the mother may have been in constructive possession of the firearm (my take) it does not in any way negate the fact that the child was in actual possession of the firearm. That’s a crime under the laws of the State of New York; the mother can be construed as having aided and abetted in the child committing this crime.

Lastly, there’s the question of whether or not the mother used bad judgment in handing her sons an unloaded handgun. The idea that a trained law enforcement officer (LEO) cannot give a 10-year-old a firearms safety lesson with an unloaded firearm is truly absurd.

Peter Tilem is a senior partner at Tilem and Campbell

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33 COMMENTS

  1. And to the VAST MAJORITY of good citizens of the Empire State this is all just fine with them. Lord help us. I fear it is America 2.0 folks.

    • Jesus Christ, man. From the state that redefines ‘KRAZY’.

      A warning to all Americans: New York state is what the entire country could look like if you keep electing douchebag, nanny-state, “protectors” like Bloomberg & his ilk.

    • OMG!!!!
      That means most of the good folks in NYC probably can’t legally handle or teach their kids about firearms, much less own them. This is nuts!!!

  2. “Arms discourage and keep the invader and plunderer in awe, and preserve order in the world as well as property…Horrid mischief would ensue were the law-abiding deprived of the use of them.” (Thomas Paine, 1775)

  4. I guess that is why they call it the Empire State. The NY govt loves to reign over its subjects and put a heal to their necks. And the dispite the law, bad guys still get guns — imagine that!

  8. O.K., Here’s my take. Secession is a stupid idea,but I’ve often wondered,”WHY would any sane person live in a state that has such tyrranical laws?” PERSONALLY secede from your totalitarian state!
    If all the people who love the Constitution would MOVE OUT of these blue excuses for representitive republics to the nearest convenient red state, the following would happen:
    1. The tax base shrinkage would disable these regimes.
    2. The poulation shift would make the red states the SOLE determinants of presidential selection/election.
    3.Everyone could then clearly compare the success of the conservative/libertarian/freedom states against the inherant failure of the people’s republics like New York.
    4.The Republic and our Constitution would be saved after the next census.

    So quit the “prepper” crap and do something that will actually HELP your family and your country. Start making job applications in states that still recognize your God-given, natural rights. Then do what generations of our forefathers did and for the same reason– MOVE to where you can be free!!!
    End of sermon. I need a nap.

    • Well, I have some perspective here as a NY resident with a deep belief in liberty, small government, the Constitution and the 2A especially. First, people ARE leaving the state and have been doing so for decades, so the demographic shift and the transfer of political power IS shifting, and the tax base is eroding. The problem is NYC which utterly dominates the state’s legislative environment. NYS will never be free of the leftist nuttiness of NYC in our lifetime barring some extraordinary change. That extraordinary change can only come when the finance industry that sustains NYC has had enough. When the likes of JPMorganChase, American Express, AIG, Citibank and a whole host of others quit the city (which they’ve done in dribs and drabs over the years), the NYC economy will crater, NYS will go bust and a realignment can begin. Laws like Dodd-Frank are helping move that along but the effect is too small and too slow. Only when the jobs leave, will the people leave.

      But the news is not all good in that respect – in many cases, NYers are fleeing the depredations of uncontrolled leftism and bringing their political mindset to formerly sensible (red) states. You only need look at North Carolina to see this in action. Or ask a native Vermonter just how much the NY transplants have assimilated to VT values rather than try to wreck the place.

      Me, I’m a few years away from leaving and there are thousands like me who will leave in time as pensions kick in, retirements happens, or parents who won’t move die off. But the exodus has been ongoing for decades and it hasn’t changed a thing except at the margin. I doubt it’ll change much as it continues.

    • I’m sick and tired of the laws and taxes in NY but I’m just as sick an tired of arrogant people suggesting that uprooting my life is a practical solution, like it’s as easily done as said.

      • The people who lived (and died) in Pompey said much the same thing about Vesuvius shaking and smoking.

      • Well, for starters, secession has been done before and it led to a civil war in which 600,000, or 2% of the population, died.

        Secession is a last resort. We have to test the very limits of our federalist system before any such thing is warranted.

  9. My first thought was thank goodness for jury nullification. My second was too bad the jury will be from NY.

  11. All I can say is.….What a bunch of Dumbass Double Stupid Lawmakers!!
    I hope the Mom gets out of any trouble and I really hope someone beats some sense into her husbands head. What a dweeb!!!

  12. NY gun laws is a good reason for the people to get out and vote the nemrod law makers out of office. But from the looks of it, the people of NY like to live under the yoke of oppression.

  14. Being a life long resident of downstate Illinois most law abiding “legal” gun owners in this state feel the same way about Chicago and it’s “anti-gun” legislators. Seems the large metro areas are really the ones with the gang crime and the stupid laws that make it hard for the rest of us to enjoy a constitutional right. We need to keep up the fight to get rid of these people. Liberty and justice are always worth fighting for.

  15. It nice to see laws on the books that are intended for criminals to protect the innocent. They don’t work but someone got reelected by passing them.

    My mom is eventually going to move out of NYSE and I will help her pack.

  17. Being a long time resident of the NY, NJ, PA area, I am not surprised at the level of lunacy in this law. When the mayor of NYC decrees that you can’t enjoy a soda over 16 oz, and that you can’t have the assistance of the National Guard after a hurricane, nothing surprises me any more.

  19. Really, are New Yorkers that dumb? The law means nothing! What does the state of New York and the peoples written constitution state there? This is exactly why our country is so screwed up, lawyers and people not understanding constitutional law! The Constitution of the United States and the states constitutions are founded under common law. Article III, section 2 of the organic Constitution defines the judicial power of the courts. There are as follows: 1. common law=criminal is an act that produces a victim and actual damages, hence the saying “no victim no crime.” 2. Equity law=known as civil law, where a private contract or agreement is reached. For action to be brought before a court there must be a breach of contract and damages (remember this). 3. Maritime Law= commercial contract originates in the rules of trade upon high seas between international merchants and is enforced by ,military organizations. 4. Admiralty Law= the armed enforcement of the laws of commerce (the law merchant). So which form of “law” is New York operating under with their statutes and codes? It certainly can not be constitutional law. Government cannot break the law, by definition, for in Brookfield Co. v Stuart, 224 F. Supp. 94, it was recognized that “an..officer, who acts in violation of the Constitution ceases to represent the government.” Lastly, politicians must swear an Oath to defend the constitution, it sure looks like a lot of these people have no clue what they are doing, including the lawyers. See Hale v Henkel, 201 U.S. 43. A lawyer cannot claim you have rights. This was decided in U.S. v Johnson, 76 F. Supp. 538. See also Corpus Juris Secondum (CJS), Volume 7, Section, Attorney and Client: “The attorney’s first duty is to the courts and the public, not the client and wherever these duties to his client conflict with those he owes as an officer of the court in the administration of justice, the former must yield to the latter.”

  20. Good grief – that’s even more draconian than firearms Law here in the UK.

    It’s so plainly a restriction on the RKBA as laid down in the 2nd Amendment that I wonder how it ever passed.

  21. I regard NY, MA, The Demokratik Peoples’ Republik of Kakifornia (aka West NJ), Illinois, and others that escape my memory as not being part of the united States of America at all [no, I didn’t put (sic) after that because it’s not a recognized error]. They are Constitutionally apostate poitical entities manifesting the Communist/Socialist socio-political Welransahauung, which may arguably be their right, but they have to infect the body politick of the free and productive sector of society. On top of that they have the chutzpah to think we are so stupid that we need their enlightened input to correct our manifest ignorance in matters social and political. As far as I’m concerned they can all pack up and go to Hell to afflict the Satanic Realm with the likes of Diane Fineswine, Barbara Boxer, Patty Cakes Murray, Henry Waxman, and legions of other champions of loafers and Democrat Breeding Machines.Free America would be so much better off.

  22. In NYC, population ~7million, there are 2,291 concealed weapon permits; do the math.

    Happiness is seeing the skyline of NYC … in your rear-view mirror.

  23. “The idea that a trained law enforcement officer (LEO) cannot give a 10-year-old a firearms safety lesson with an unloaded firearm is truly absurd.”

    Why should an Only One get a free pass for something one of us mere mundanes would be prosecuted for? You all know as well as I do that if it were one of us, we’d be nailed to the wall.

    She should have known better. Screw her – throw the book at her. Then change the law.

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