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3/20/2017 5:03:23 PM
Posted: 11/30/2001 8:04:52 PM EDT
[Last Edit: 12/1/2001 11:15:49 AM EDT by Dave_G]
For the complete information from a BATF letter, see this thread in the Legal Forum: [url]http://www.ar15.com/forums/topic.html?id=74364[/url] [b][red]By the way, this post/thread reflects the opinion of the BATF, not me. The original letter to the BATF was sent as the result of a debate that arose on the Legal Forum last March. The participants wanted to know if the BATF's "Once a machinegun, always a machinegun" policy applied to 922(v)(2) exempted semiautomatic assault weapons. Now we know it doesn't. If you don't like it, complain to the BATF. It's their policy, not mine.[/b][/red]
Link Posted: 11/30/2001 8:15:43 PM EDT
Link Posted: 11/30/2001 8:21:58 PM EDT
[size=5]THIS IS MY PRE-BAN! THERE ARE MANY LIKE IT....BUT THIS ONE IS [B]MINE![/B] ....YOU WILL GIVE YOUR PRE-BAN, A GIRLS NAME![/SIZE=5]
Link Posted: 11/30/2001 9:40:40 PM EDT
In 1981,I machined 12 AR15 lowers from forgings. Not castings. They are still in the possession of myself or a family member and have the dates of production engraved in them. I could have assembled 60 relatives who will swear to it. I planned way ahead but only 38 are still here. How will the BATF beat that? cpermd
Link Posted: 11/30/2001 10:05:30 PM EDT
[Last Edit: 11/30/2001 11:26:06 PM EDT by NYPatriot]
Let me get this straight... By the BATF's "official" definition, many, if not most of the pre ban AR15s floating around out there are configured illegally, yet no one has ever been able to document a single instance where a person has been arrested and convicted solely on the basis of violations of the 1994 "assault weapons" ban. How strange. Seems like easy pickings, but they don't pursue convictions? Maybe this is because the BATF knows that this law is UNCONSTITUTIONAL, IRATIONAL, and ILLOGICAL. They don't want it challenged in the courts, lest it be found to be the ILLEGAL crock of sh*t we all know it is! Instead, they rely of fear mongering and intimidation to keep gun owners compliant and on the defensive. I say we stop taking this crap, and go on the offensive for a change. Yes, it will cost lots of money in legal expenses, but this is a small sacrifice when compared to what our founding fathers put on the line! "If you love wealth more than liberty, the tranquility of servitude better than the animating contest of freedom, go home from us in peace. We ask not your counsels or arms. Crouch down and lick the hands which feed you. May your chain be set lightly upon you and may posterity forget ye were our countrymen." - Samuel Adams "If a nation values anything more than freedom, it will lose its freedom, and the irony of it is that if it is comfort or money that it values more, it will lose that, too." -Somerset Maugham MOLON LABE! [%(]
Link Posted: 12/1/2001 4:46:45 PM EDT
NYPatriot: Hear, hear!
Link Posted: 12/1/2001 5:02:15 PM EDT
You guys are asuming that you are innocent until proven guilty. In the case of the AWB you are guilty until proven innocent. All the prosecution has to prove is that you are in possesion of a firearm that meets the definition of the 1994 AWB. It is up to YOU to prove that the rifle is exempt. So this will actually make prosecutions simpler for the Govt because you will not only have to prove that it was manufactured before Sept. 1994 (an impossibility with OlyArms due to the fire BTW) but also that it complies with this ruling. BTW where in the Constitution doesa it give the BATF the the ability to make and interprete laws? I alsways read the the Congress writes the laws and the Courts interprete them? I guess I am wrong.
Link Posted: 12/1/2001 7:22:42 PM EDT
Hold your horses Adtecharms: First of all, where do you get this "you are guilty till proven innocent" stuff. Dead wrong. You may feel this way but in the real world the prosecution will have to prove thier case beyond a reasonable doubt. This case would be dismissed in the pre-trial hearing. The prosecution WILL HAVE TO PROVE that all components on the rifle were NOT part of the original design. Now tell me, how are they going to do this. There are NO records kept ANYWHERE or are there ANY serial numbers on upper receivers. So right there, prosecution cant PROVE any parts werent original. Second, appart from Oly-Arms, there are vast records showing when you lower receiver was manufactured. Even if there werent, the prosecution MUST PROVE it was manufacture after 1994...case closed.
Link Posted: 12/1/2001 7:40:02 PM EDT
Link Posted: 12/2/2001 5:19:37 AM EDT
Ask Steve_in_VA about this but This was gone over in the legal forum many times. A rifle being a "PreBan" is a defense from prosecution. Which means all the prosecution has to prove beyond a reasonable doubt is that you where in possesion of a gun with 2 or more "Evil" features it is up to you to prove that you are exempt.
Link Posted: 12/2/2001 5:30:31 AM EDT
This demonstrates why it is important to have some sort of documentation your gun really is a pre-ban. ADTECHARMS is correct that all that is necessary for the prosecution is to show the gun in question fits the statutory definition of an assault weapon. If prosecuted you can use as a defense that its a preban, but the burden of proof is on the defendant to prove their defense. You'd need some sort of evidence sufficient to convince a jury. This opinion, doesn't really do much to bolster the gov'ts case. If you have evidence its a pre-ban, and the gov't wants to proceed against you because they believe the rifle to have been dissassembled at some point, they will need evidence to that effect. If you don't have any evidence of its preban status, you'd have a problem, but then again, you had a problem anyway - long before this opinion. And about the 94 AWB being challenged in court - its been done. Say what you want about Tec-9's being crap, but never forget Navegar (the company who makes the Intratec Tec-9 and Tec-22) and Penn Arms (the maker of the Striker 12 shotgun) are the only manufacturers I know of who took on the issue and challenged the law in court (Navegar, Inc. v. US). Unfortunately they lost. Finally, its worth noting that although BATF hasn't shown a lot of interest in enforcing 922(v), that doesn't mean they'll always feel the same way. The law makes it easy for BATF to win in court by making the burden of proof very low for the gov't. Just because BATF has, so far at least, shown little interest in prosecuting under 922(v), that doesn't mean they can't. I suspect that within the next few years -when we get another antigun liberal president- they will direct BATF to step up enforcement on this. The fact is, its in the law and the law has been upheld. BATF just hasn't made it a high priority; but don't expect that to continue indefinitely.
Link Posted: 12/2/2001 6:13:14 AM EDT
Link Posted: 12/2/2001 6:21:36 AM EDT
Serious question: What is the exact function of the Tech. Branch anyway? How can you find out?
Link Posted: 12/2/2001 7:30:05 AM EDT
I do not ask questions of BATF. What everyone else does is their own business.
Link Posted: 12/2/2001 7:58:08 AM EDT
Link Posted: 12/2/2001 8:26:13 AM EDT
Originally Posted By Paul: So if you get sited for speeding driving a car with the ability to excede the speed limit your defense would be to prove that the car couldn't possibly do 76 miles an hour. Prove to me that last Wednesday while you were at work my team of experts didn't break into your home by-passing your alarm systems, drugging your guard dogs, and then carefully cracking open your safe. I then removed the pre-ban features of your rifle for 27 minutes before returning them back, closing the safe, awakening your dogs and re-activating your alarm system. Under your interpetation of the laws you are guilty if you can not prove that this did not happen. Comrade let me introduce you to Bubba. This is an impossible task and like arguing how many angels can dance on the head of a pin a waste of time.
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I don't think citing absurd examples or far-fetched situations represents how these kinds of rulings will actually be used. Nor does it dismiss the reality that if you bought a stripped "pre-ban" receiver after the ban thinking it still retains it's "pre-ban" status, you *could* be busted for it. I think this ruling just allows a glimpse into the possible legal tactics gov.org could use if it wanted to bust someone with with an assault weapon. I also think you do a disservice to people who are not as well informed as some here by suggesting that they don't have to worry at all about these laws. How many angels was that, BTW? [:)]
Link Posted: 12/2/2001 8:27:12 AM EDT
Paul, I've always wondered exactly how many Angels can dance on the head of a pin ? As many as want to ?
Link Posted: 12/2/2001 8:36:16 AM EDT
Originally Posted By ADTECHARMS: Ask Steve_in_VA about this but This was gone over in the legal forum many times. A rifle being a "PreBan" is a defense from prosecution. Which means all the prosecution has to prove beyond a reasonable doubt is that you where in possesion of a gun with 2 or more "Evil" features it is up to you to prove that you are exempt.
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Ummm...No. Should you be prosecuted for possession of an illegal assault weapon, under the law you can claim an exemption because the rifle is grandfathered. It is then up to the prosecution to prove that rifle in question is NOT grandfathered under the law. Michael
Link Posted: 12/2/2001 8:36:54 AM EDT
Paul - maybe I've misunderstood your reply, but I think you missed the point. Under 922(v) all the gov't has to show is that you knowingly possessed a rifle that accepts a detachable mag and two or more evil assault features. In defense, you could provide evidence the rifle in question is a preban (maybe a statement from the manufacturer that rifle # LO45xxx left the factory as a complete rifle with preban features prior to 9-13-94). It would probably end right there. However, if BATF still wished to proceed on the basis that they thought the rifle had lost its preban status because you completely disassembled it at some point, they could, but BATF would have to provide some evidence that the rifle was completely disassembled and lost its preban status that way. That is why I say this ruling really doesn't do that much for the gov't. They would need to have been watching you for a while and have quite a pile of info on you to make this ruling work for them. Of course if you didn't have any evidence your rifle was a pre-ban to begin with, you have a problem, but not because of this recent opinion Dave_G provided.
Link Posted: 12/2/2001 8:52:33 AM EDT
Paul, According to the letter ruling, you would have to remove the qualifying features that make the weapon a SAW by converting it to a preban configuration or remove enough evil features to disqualify it as a SAW, then dispose of the preban parts so you no longer possessed the parts necessary to reassemble the rifle as a preban. Mere possession of a set of parts that would allow you to assemble a complete SAW on the preban receiver retains the preban status. The problem arises, according the the BATF, when you strip the receiver and sell the parts. No parts to build a SAW on the receiver means the receiver loses its status as a grandfathered preban. As for prosecution, each law has its own set of elements. In the case of the '94 AW ban, all the government is required to prove is that the weapon in question meets the definition of a semiautomatic assault weapon under 921(a)(30) and you possessed it. Period. No doubt they will have obtained evidence that the weapon did not have exempt status under 922(v)(2) (Grandfathered SAW), but it would still be your task to offer the defense that the weapon was 922(v)(2) exempt if they didn't. I don't like it either, but the key to this thing is [b]what[/b] the government must prove to establish guilt. The way the law was written, all they have to do is show proof that its a SAW and that you possessed it.. "Innocent until proven guilty" ends when they satisfy the two elements.
Link Posted: 12/2/2001 9:23:21 AM EDT
[Last Edit: 12/2/2001 9:16:46 AM EDT by Ponyboy]
Originally Posted By Dave_G: The problem arises, according the the BATF, when you strip the receiver and sell the parts. No parts to build a SAW on the receiver means the receiver loses its status as a grandfathered preban.
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Now, BATFs problem they will have with enforcing this is that is has absolutely no basis in law. The law states that if a rifle was in assault weapon status prior to the ban then it is a grandfathered assault weapon. Where does the law state that the rifle, once grandfathered, can be ungrandfathered? Where is the basis for this in case law? Their statement is completely unfounded. While BATF uses their authority to "interpret" certain laws how they see fit, they do not have the authority to make up laws at their whim. If what they said in their opinion holds true (yeah right) then all of that factory paperwork stating that the rifle left as a preban from the factory, that some of you anal people out there keep, is now completely worthless unless you are the sole owner of the rifle and it was shipped directly to you from the factory. This is just another useless subject that I can already tell will take up an enourmous amount of bandwidth and start flamewars between everybody. Michael (edited for clarification)
Link Posted: 12/2/2001 9:51:12 AM EDT
Originally Posted By Ponyboy:
Originally Posted By Dave_G: The problem arises, according the the BATF, when you strip the receiver and sell the parts. No parts to build a SAW on the receiver means the receiver loses its status as a grandfathered preban.
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Now, BATFs problem they will have with enforcing this is that is has absolutely no basis in law. The law states that if a rifle was in assault weapon status prior to the ban then it is a grandfathered assault weapon. Where does the law state that the rifle, once grandfathered, can be ungrandfathered? Where is the basis for this in case law? Their statement is completely unfounded. While BATF uses their authority to "interpret" certain laws how they see fit, they do not have the authority to make up laws at their whim.
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Unfortunately, they're not making up law on a whim. While I don't like it, I do understand their logic here. The law states it is illegal to manufacture a semiautomatic assault weapon. BATF is setting the limits of the term "manufacture" for purposes of 922(v). Once you've removed the parts from a reveiver and seperated it from those parts, when you rebuild that rifle into an "assault weapon", you are in effect manufacturing a new assault weapon after 9-13-94. I don't like it, but I do understand the logic they're using. And unfortunately, all they really need to have a determination like this upheld in court is some scintilla of logic. The problem with enforcement of this opinion is not that it has no basis in law, but as I explained above, that BATF would need to prove it was completely disassembled at some point.
Link Posted: 12/2/2001 10:02:29 AM EDT
I'm assuming this was done to prevent someone from having made 200 "pre-ban" recievers with only one pre-ban upper, and then put the upper on each for 10 seconds and whalla instant grandfathered. I remember reading of people who did just that, and obviously the ATF isn't buying it. But one interesting problem... So if you take off your upper and send it to XYZ mail order match rifle co. to upgrade your upper, then your pre-ban is no longer a pre-ban unless you have a spare pre-ban upper around the house while your original was gone. Otherwise when you put your new upper back on, your instantly a felon. I feel safer from crime already. Cute.
Link Posted: 12/2/2001 10:03:59 AM EDT
I'm sorry. But why would I give a rat's ass about this? Believe me, it would be much more painful for them to prosecute something like this than it's worth. They gotta let you out of jail sometime![}:D]
Link Posted: 12/2/2001 10:10:06 AM EDT
Ok, first off the lower receiver is in an of itself a rifle as defined by law. Second, by law if a rifle held an assault weapon status at the time of the ban then the rifle, lower receiver, is considered a grandfathered assault weapon. The upper or collapsable stock cannot be considered an assault weapon because by law they are not weapons or serial numbered. So the actual grandfathered part is the serial numbered receiver itself. Even if it needed a preban upper to make it an assault weapon in the first place, nowhere does it state in the law that the preban features have to stay on the rifle in order for it to continue to be grandfathered. Therefore, if you have an preban weapon and disassemble it, the status of the receiver as a grandfathered assault weapon under the auspices of the law do not change, regardless of what the BATFs opinion is. It can then be reassembled at a later date without manufacturing a new assault weapon, because it was already an assault weapon. This even disputes their normal practices regarding other types of firearms, such as once a rifle always a rifle or once a machinegun always a machinegun. BATF opinions are just that, opinions. They don't carry the weight of law. I too see what they are wanting to do, but if they want in one hand and shit in the other which one do you think will fill up faster? Without a change in the law there is no way this stuff would ever fly in court. Michael
Link Posted: 12/2/2001 10:31:42 AM EDT
[Last Edit: 12/2/2001 10:27:32 AM EDT by shaggy]
Originally Posted By Ponyboy: Ok, first off the lower receiver is in an of itself a rifle as defined by law. Second, by law if a rifle held an assault weapon status at the time of the ban then the rifle, lower receiver, is considered a grandfathered assault weapon. The upper or collapsable stock cannot be considered an assault weapon because by law they are not weapons or serial numbered. So the actual grandfathered part is the serial numbered receiver itself. Even if it needed a preban upper to make it an assault weapon in the first place, nowhere does it state in the law that the preban features have to stay on the rifle in order for it to continue to be grandfathered. Therefore, if you have an preban weapon and disassemble it, the status of the receiver as a grandfathered assault weapon under the auspices of the law do not change, regardless of what the BATFs opinion is. It can then be reassembled at a later date without manufacturing a new assault weapon, because it was already an assault weapon.
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[i]Let me say it again, so no one gets the wrong idea; I don't like what BATF is doing here one damn bit, but I do understand their logic and I don't think they'd have any problem having it upheld in court. For that reason, I'm going to play Devils Advocate here.[/i] True, the lower receiver itself is, as defined by law, a firearm. A lower receiver is not, however, an assault weapon. To be an assault weapon, you need to have at least a receiver with the ability to accept a detachable mag and two or more assault features. Without those features, you no longer have an assault weapon. Once you remove those features from an otherwise grandfathered weapon, it looses its status as an assault weapon. Therefore it cannot be a grandfathered assault weapon. When you later rebuild that stripped receiver into another complete rifle with another parts set you have created a "new" assault weapon after 9-13-94. That assault weapon just assembled is a different assault weapon than the one possessed prior to the disassembly. Now as to an agency opinion, the federal courts usually defer to the expertise of an agency on technical matters like this. Agency determinations can be beaten in court, but the standard is usually arbitrary and capricious. If theres some basis in logic for the agency's opinion, it'll most likely stand up.
Link Posted: 12/2/2001 10:42:06 AM EDT
If this is so, then there is no such thing as a legal preban "M-Forgery", IF the weapon didn't have those features before the ban. Anyone here own a genuine Colt M4 upper prior to '94?
Link Posted: 12/2/2001 10:53:47 AM EDT
Link Posted: 12/2/2001 10:57:57 AM EDT
Originally Posted By Major-Murphy: If this is so, then there is no such thing as a legal preban "M-Forgery", IF the weapon didn't have those features before the ban. Anyone here own a genuine Colt M4 upper prior to '94?
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Sure you could. Nothing says you can't swap out uppers or change parts; you just can't strip the receiver and completely separate it from those parts (ie. buying a stripped "pre-ban" receiver on which you build an M-Forgery). Hell as long as you had nothing more than a grip and telestock on it at all times, you would be fine (a stripped receiver with a grip and telestock would qualify as an assault weapon - ability to accept a detachable mag, pistol grip below the action, and a folding/collapsable stock).
Link Posted: 12/2/2001 11:01:55 AM EDT
[Last Edit: 12/2/2001 10:54:29 AM EDT by Major-Murphy]
So then any "preban" lower that didn't originally have a telestock, but was part of an AW (pistol grip, detachable mag, and threaded muzzle), can never have one? I always thought that if, prior to the ban, the weapon possessed features that made the weapon an AW, after the ban, that you could then add any AW features.
Link Posted: 12/2/2001 11:22:55 AM EDT
The way I read it, as long as you had the parts to complete the AW (in any configuration)in your possession, you are fine. For example, lets say you started with a stock SP1. You buy a telestock and an M4 upper for it. So you're sitting in your living room with a stripped SP1 receiver and two parts sets on the floor (one from the original SP1, and one for the M-Forgery); you've got enough parts right there to put it back together as an assault weapon in any one of four configurations. BATF doesn't seem to care about the minor/very temporary disassembly that would be required to say replace the stock with a telestock, put on a different upper, or for a really thorough cleaning. They seem to be after the more prolonged periods of disassembly when the receiver is completely seperated from the parts necessary to complete it - like when someone sells a stripped preban lower.
Link Posted: 12/2/2001 12:13:49 PM EDT
Originally Posted By Ponyboy: BATF opinions are just that, opinions. They don't carry the weight of law.
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Unfortunately Congress and State legislatures routinely give agencies like the ATF the power to promulgate rules, regulations and to form opinions, which carry the full weight of the law. As always it is up to the judiciary to interpret the constitutionality of a law or a judge or jury to rule on the guilt or innocence of a defendant.
Link Posted: 12/2/2001 12:17:31 PM EDT
Link Posted: 12/2/2001 12:42:42 PM EDT
Originally Posted By oneshot1kill: Although the likeliness of being tried for such an offense is probably small, I can almost guarantee you that I would have been charged with having a an SAW as defined in 921(a)(30)if I had so much as a Bayo-Lug on my AR15 when they confiscated it. Because many LEOS here are not well informed with respect to firearms law, they would rather take your weapon and then try to make a case against you later. If your weapon is grandfathered and you have good paperwork, it should be no problem. Hopefully where you live it is more pro-gun, but in my town they would rather take your legally owned rifle away from you and have you go to court to get it back. My whole point is that it may be a lot easier than you think to be tried for these type of offenses. Thank GOD that my rifle was a postban, or I would most likely be facing very serious charges today.
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You would have most likely been charged under the provisions of the NYS AW law not the provisions of the federal law. NY state and local police do not prosecute or enforce federal law. That does not mean that they would not cooperate with the applicable federal LE agency. Never expect a local LEO to be familiar with federal firearm laws or even the applicable state AW laws. It is unfortunate that you were arrested and treated the way you were and I hope you successfully pursue a cause of action against the City of NR.
Link Posted: 12/2/2001 3:10:58 PM EDT
Link Posted: 12/2/2001 3:47:04 PM EDT
Psheeewwww.........I don`t think the locals around here would actually give a shit.....[argue]
Link Posted: 12/2/2001 4:09:33 PM EDT
Link Posted: 12/2/2001 4:15:39 PM EDT
Link Posted: 12/2/2001 6:15:06 PM EDT
Hopefully in a couple of years this will be moot. If Emerson ever does goto the Supremes The populatiion (or a part of it only 10% of the population actually supported the use of force against the king in 1776) must imprese upon them thaty if the Constitution is not followed than we will vote from the rooftops. It worked for OJ the jury was so scared of a riot they aquitted.
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