Expert: Robert P. Firriolo - 7/31/2009

Question
Would I (a convicted DWI felon), be able to hunt waterfowl with a muzzleloading shotgun in Wayne County, New York? Is a muzzleloading shotgun that uses 209 primers considered a firearm?

Answer
You will have to consult the NYSDEC hunting regulations to see if you can lawfully hunt waterfowl using a muzzleloading shotgun. I can answer whether a convicted felon can lawfully possess a muzzleloading shotgun in New York State. The answer to that is "yes, generally."

First, under federal law, most muzzleloaders are not considered "firearms" under the Gun Control Act of 1968* and thus it does not matter if one is a "prohibited person," a term which includes a convicted felon.

Next, a muzzleloading shotgun is not considered a "firearm" under NYS Penal law [see PL 265.00 (3)] as long as it has a barrel of at least 18-inches and an overall length of at least 26-inches. Nor is it a "shotgun" under state law [see PL 265.00 (12)] because it does not used a "fixed shotgun shell."

So, because neither federal nor NYS law generally regulate muzzleloading shotguns as firearms or shotguns, a convicted felon can lawfully possess one.

*There are, however, a very small number of modern muzzleloading firearms that the federal BATFE classifies as firearms, such as the earliest Savage 10ML rifle. (That model had a threaded receiver and barrel, and a bolt-head that would accept case heads in the .222 Remington family. ATF's technical branch found the rifle could theoretically be converted to a centerfire rifle by a gunsmith.) It would be illegal for a convicted felon to possess such a muzzleloading firearm. The use of a 209 primer does not automatically, or even generally, make a muzzleloader into a firearm. If you have any doubt whether any particular muzzleloader is classified as a firearm under federal law, the first place you can consult is the manufacturer.