Civil Liberties

Why New York's 'Assault Weapon' Ban Didn't Stop the Buffalo Massacre

The problem is not sneaky entrepreneurs who sell accessories; it's legislators who ban guns based on functionally unimportant features.


The suspect in the mass shooting that killed 10 people at a Buffalo grocery store on Saturday used a rifle that was widely described as an "assault weapon." With certain exceptions that don't apply here, that category of firearms is illegal in New York. Yet The New York Times reports that the shooter legally bought the rifle from a gun dealer in Endicott, New York. How is that possible?

It turns out that the rifle, a Bushmaster XM-15 ES, was not an "assault weapon" at the time of the purchase, but it became an "assault weapon" after the shooter tinkered with it. The details of that transformation illustrate how arbitrary and ineffectual bans like New York's are.

Under the New York Secure Ammunition and Firearms Enforcement (NY SAFE) Act, a 2013 law that was hurriedly passed in response to the December 2012 massacre at Sandy Hook Elementary School in Newtown, Connecticut, "assault weapons" include semi-automatic rifles that accept detachable magazines and have one or more of seven "military-style" features. If we can trust the photograph in the online manifesto attributed to the Buffalo shooter, the rifle he bought had a pistol grip, which is one of the prohibited features. So why was the sale legal?

The manifesto says "the person who had this [rifle] before me" made it compliant with New York law by installing "a Mean Arms magazine lock, which fixed a 10 round magazine" to the gun. The fixed magazine meant that the rifle no longer qualified as an "assault weapon." But the shooter easily reversed that modification so that the rifle could accept detachable magazines, meaning it was once again an "assault weapon" when he used it in the attack.

That difference has practical implications, since the ability to switch magazines makes it easier to quickly reload a gun. But other workarounds allow New Yorkers to legally buy and own AR-15-style rifles like the Bushmaster XM-15 that are functionally identical to prohibited models. You can replace an adjustable stock with a fixed stock, for example, and replace a pistol grip with a Thordsen grip or a spur grip, neither of which "protrudes conspicuously beneath the action of the weapon," which the NY SAFE Act prohibits.

As long as the rifle has none of the other features on New York's list (such as a threaded barrel, a thumbhole stock, or a bayonet mount), it is not an "assault weapon," even if it accepts detachable magazines. Such "featureless" rifles are perfectly legal in New York, even though they fire the same ammunition at the same rate with the same muzzle velocity as the banned models.

Sen. Dianne Feinstein (D–Calif.), who sponsored the 1994 federal "assault weapon" ban and has been agitating for a new, supposedly improved version since that ban expired in 2004, thinks parts that allow gun owners to comply with such laws are intolerable. She wants to prohibit "Thordsen-type grips and stocks that are designed to evade a ban on assault weapons." But the problem is not sneaky entrepreneurs who sell such accessories; it is irrational legislators who ban guns based on functionally unimportant features.

Alan Thordsen, founder and CEO of Thordsen Customs, was bemused by Feinstein's attitude. "What our rifle stock does is remove both of those individually named items [a folding or adjustable stock and a pistol grip] and replace them with a single-piece, solid, traditional-style rifle stock like you can find on any other traditional-style rifle," Thordsen told me a few years ago. "If there's a feature that is banned, we change the feature. That's not evading. That's not skirting the law or violating the spirit of the law. We are conforming with the law and creating products that enable law-abiding people to keep their legal firearms in a legal configuration so that they are not criminals."

The NY SAFE Act allowed people who already owned guns covered by its new definition of "assault weapons" to keep them as long as they registered them with the state police within a year after the law took effect. The National Shooting Sports Federation estimated that New Yorkers owned about a million "assault weapons" when the ban was enacted. But only 44,000 have been registered with the state police. That figure suggests massive noncompliance, even allowing for the possibility that some gun owners may have sold their "assault weapons" to buyers in other states, as permitted by the NY SAFE Act.

Possessing an unregistered "assault weapon" in New York is a Class E felony, punishable by up to four years in prison. Given the negligible difference between illegal "assault weapons" and "featureless" models that comply with state law, it is hard to see what public safety payoff the state got by turning hundreds of thousands of otherwise law-abiding gun owners into felons.

The NY SAFE Act also banned the sale and unregistered possession of "large capacity ammunition feeding device[s]." The limit originally was set at seven rounds, a rule that had to be modified when legislators discovered that the seven-round magazines they mandated did not exist. The amended law said people could own 10-round magazines as long as they never put more than seven rounds in them. Seriously. In 2013 a federal judge deemed that provision unconstitutional, and the U.S. Court of Appeals for the 2nd Circuit agreed in 2015.

On Meet the Press yesterday, New York Gov. Kathy Hochul said the Buffalo shooter "was able to enhance the gun he bought legally in New York," which allowed him to use "an increased-capacity magazine," and that is "exactly what we think he did." Assuming the magazines held more than 10 rounds, that detail, along with the shooter's illegal modification of the rifle, illustrates a point that should be obvious: Mass murderers are not punctilious about obeying gun control laws. The main effect of such limits is to incommode (and possibly endanger) law-abiding gun owners, who can no longer legally buy the "large capacity" magazines that are standard for many firearms.

Even if the shooter was for some reason worried about violating New York's gun regulations, he could have killed just as many people using a legally compliant rifle with 10-round magazines. The distinctions that legislators deem important, it turns out, do not actually matter in the real world.