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3/20/2017 5:03:23 PM
Posted: 5/13/2001 4:04:52 PM EDT
[Last Edit: 5/17/2001 4:52:51 PM EDT by Steve-in-VA]
Looks like we cant own a pre-ban AR15 rifle unless we were the original owner prior to the 1994 Ban. The defendant tried to let his brother have his pre-ban UZI but the court said he cant have it cuz he wasnt the original owner. ----------------- Check this out: U.S. v. Indelicato, 964 F.Supp. 555 (D.Mass 1997) In this case, the court construes the "grandfather" clause of the assault weapon ban, 18 USC 922(v). The court believes that the weapons are only grandfathered to the owner as of the date of enactment of the ban, 9/13/94, and that no other person may lawfully possess them, ever. No weapon grandfathered as of that date may be transferred and possessed as other weapons may be. Therefore the judge decides that the brother of the defendant, whose guns were not subject to seizure, may not get a semi-auto Uzi model A back from the government, as the brother may not legally possess it, as he did not have it on the grandfather date, the defendant did. ---------------- Here is the case brief: [URL]http://www.cs.cmu.edu/afs/cs/usr/wbardwel/public/nfalist/us_v_indelicato2.txt[/URL]
Link Posted: 5/13/2001 4:20:24 PM EDT
here is where i found it. It's a list of cases involving guns: http://www.cs.cmu.edu/afs/cs/usr/wbardwel/public/nfalist/cases_short.html
Link Posted: 5/13/2001 5:35:25 PM EDT
[Last Edit: 5/13/2001 5:36:13 PM EDT by uglygun]
Well, let's see if they try to apply the same type of reasoning to NFA items and transfers. Once they start setting precedents it's gonna get really bad for us really quick. The damned NRA or GOA better have some of their lawyers pick this up and run with it real quick or we're screwed. What about high capacity magazines? This needs to be faught without any delay. Hope the judge rots in hell.
Link Posted: 5/13/2001 6:09:07 PM EDT
Originally Posted By Bush Hamster: here is where i found it. It's a list of cases involving guns: http://www.cs.cmu.edu/afs/cs/usr/wbardwel/public/nfalist/cases_short.html
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Oh well, I'm sure all of you guys that are so strict about following the law will go down this coming week and hand over all rifles which you are unable to document that you owned prior to Sept. 1994. [;)] I just hope the ATF doesn't hear about this and come in their black helicopters and get you tonight out of your bed before you can get them turned in. Maybe you better go on down now. [;)] PigPen
Link Posted: 5/13/2001 6:14:28 PM EDT
Err...that was a 1997 case. I would assume since people are still doing it that it was overturned on appeal. I'll go look on Westlaw and get back to ya.
Link Posted: 5/13/2001 6:24:15 PM EDT
Originally Posted By PigPen: Oh well, I'm sure all of you guys that are so strict about following the law will go down this coming week and hand over all rifles which you are unable to document that you owned prior to Sept. 1994. [;)]turned in. Maybe you better go on down now. [;)] I just hope the ATF doesn't hear about this and come in their black helicopters and get you tonight out of your bed before you can get them PigPen
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Or maybe we can replace our barrels with post-ban ones and not turn them in.
Link Posted: 5/13/2001 7:27:54 PM EDT
Originally Posted By PigPen: Oh well, I'm sure all of you guys that are so strict about following the law will go down this coming week and hand over all rifles which you are unable to document that you owned prior to Sept. 1994. [;)] I just hope the ATF doesn't hear about this and come in their black helicopters and get you tonight out of your bed before you can get them turned in. Maybe you better go on down now. [;)] PigPen
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Only reason I can think of that you would make light of this issue is either you personally own no prebans purchased after 94, or you don't really give a damn about the laws and currently do as you wish. Which is it? This shit ain't funny!
Link Posted: 5/13/2001 7:37:47 PM EDT
This is how I see it, but it is not any type of conclusion, just my opinion for comment: The defendant did not lawfully possess the UZI on Sept of 1994 because after the date of his arrest in May 1994 he could no longer legally possess firearms. Part of the conviction was later overturned, but because he was not in lawful possession in Sept 94, he could not get it back. The question turns to: Who possessed the UZI in Sept 94? The defendant or the Gov't? Really we see the point is moot, because if he owned it, it would be illegal since he was now a felon. If the Gov't "owned it" (because they possessed it), than on Sept 94 he didn't, and he cannot get it back. Neither could his brother as agent. He tried to have the court give the weapons (there were 4) and ammo back to his brother as a designated agent. Three weapons and the ammo were returned to his brother, because they did not fall under the AW Ban, or they remain legal (Mossberg 12ga). The AW Ban seems to state that only AW's LEGALLY owned in Sept 94 were eligible for the grandfather clause. Again, since the defendant did not LAWFULLY possess the UZI at that time, it became an illegal firearm under the AW ban. The other firearms remained unrestricted and were returned after the conviction was overturned. They were returned to his brother, as his designated agent, because the defendant still had other criminal convictions making it unlawful for him to possess firearms. A criminal possessing an UZI in Sept 94, cannot claim that it should be returned under a grandfather clause which only applies to LAWFUL possession on that date. Despite having the conviction later overturned, he did not possess the weapon legally, because he continued to have felony convictions that were not overturned. If he had all his convictions overturned, then on Sept 94, despite not having possession of it, the court may have seen him as the legal owner on Sept 94 and it would have been returned and transferable. The court does not go into the technical possessor of the weapon, only that since he wasn't, he couldn't transfer it to his brother.
Link Posted: 5/13/2001 7:53:36 PM EDT
Please read my interpretation of the opinion. It may be wrong too, but I think it is a little closer to the truth. AW's that were not legally owned on Sept 94 are not eligible under the grandfather clause and became illegal AW's. Key word is LEGALLY. If Citizen Kane owned an UZI in Sept 94, he can transfer it. If Criminal Doe had one in his possession, it was illegal, and does not fall under the AW Grandfather clause. In the case discussed, since he had a felony conviction in Sept 94 (not later overturned) he was not a legal owner and could not transfer it to his brother as agent.
Link Posted: 5/14/2001 8:24:41 AM EDT
I don’t know what the deal is with the above cases, and have not taken the time fully read through it, but here is how the law is written: (v) (1) It shall be unlawful for a person to manufacture, transfer, or possess a semiautomatic assault weapon. (2) Paragraph (1) shall not apply to the possession or transfer of any semiautomatic assault weapon otherwise lawfully possessed under Federal law on the date of the enactment of this subsection. Notice the part in paragraph 2, “shall not apply to the possession or [b]transfer[/b] of any semiautiomatic assualt weapoon otherwise lawfully possessed” Am I missing something here?
Link Posted: 5/14/2001 8:59:54 AM EDT
righteous kill you're not missing anything here,allbrandtr is right on point with his understanding of this case.the defendant is/was a convicted felon and did not lawfully possess the firearm in question,so it couldn't be transfered to his friend.this case does not make the point that bush hamster is trying to make IMO.mmk
Link Posted: 5/14/2001 3:19:00 PM EDT
I didnt make any point. all i did was find that statement on that university website with a link to the case brief and presented it on this forum for discussion and our opinions. Dont try and paint me as an anti-gunner (which im not). We cant be ignoring things like this especially this 1997 case which we are only now discussing. We need to be prepared for their arguments. With that said, what did the court mean by this: -------- Finally, although 18 U.S.C. section 922(v)(2) contains a grandfather clause allowing the continued possession of an UZI "otherwise lawfully possessed under Federal law on the date of enactment of this subsection [September 13, 1994]," Anthony Indelicato does not fall within the clause because he did not possess the UZI on September 13, 1994. Contrary to defendant's position, therefore, 18 U.S.C. section 922(v) makes it unlawful for Anthony Indelicato to possess the UZI. -------- that was the first argument against anthony (the brother) owning the uzi. the paragraph that followed was the second argument which showed that anthony also had a record on the date of the ban. The above-captioned portion of the court's decision is the most relevent.
Link Posted: 5/14/2001 9:01:10 PM EDT
There are two parts to a judicial decision. The actual "holding" which becomes effectivly becomes law, and the courts "dicta" which is not part of the holding, but is persuasive for future cases or an appeal. Dicta is the judge giving his opinion of the case, even though it may conflict with his interpretation of the law. The holding of a case is what the court determines the law to be. Since the judiciary does not make laws, that being left to the legislative branch, it merely interprets them. If the legislature disagrees with the courts interpretation of the law it passed, it will change the law to reflect it. Otherwise, the courts decision stands as law unless it contradicts another courts decision. In that case, it may be appealed to a higher court to determine which court is right (the courts have to be under the same Appellate court circuit. E.g. Florida courts can disagree with California courts, but two district courts in Florida, say the 1st and 3rd will appeal to the Fla. Supreme Court to resolve the conflict) The point of this post is to say that the judge was (in my non-legal opinion) giving dicta when he said that the defendant was not in "possession" in Sept 94...because the Gov't had it. This doesn't seem fair, but it is important for other cases. Remember there are two arguements made by the Gov't. First, a felon cannot possess a firearm, therefore the weapon was not a legal firearm under the AW grandfather clause. Second, even if it was owned by the Pope, if Uncle Sam had it in his hands in Sept 94, then the Pope cannot claim the grandfather clause. The first argument became legally binding as the courts "holding". The second argument was dismissed from the holding, but may have been supported in the judges opinion, or "dicta". Hope this helps!
Link Posted: 5/17/2001 12:47:08 AM EDT
steve, do you think that was dicta as allbradtr indicates?
Link Posted: 5/17/2001 3:56:50 AM EDT
Originally Posted By Bush Hamster: steve, do you think that was dicta as allbradtr indicates?
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I'll pick up the opinion and read it today at the courthouse and give you my opinion after court this afternoon.
Link Posted: 5/17/2001 5:15:28 PM EDT
Originally Posted By allbrandtr: The point of this post is to say that the judge was (in my non-legal opinion) giving dicta when he said that the defendant was not in "possession" in Sept 94...because the Gov't had it. This doesn't seem fair, but it is important for other cases.
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First of all, this was a civil proceeding in the 1st Circuit at the district court level. It's relevance and application to other cases should be taken with a grain of salt. I don't think it merits any discussion, however, I will respond to Bush Hamster's question. Allbrandtr is, in my opinion, wrong about what he thinks is "dicta" in the opinon. Sorry, no flame intended, but I just don't see it. The court gives reasons for its holding. Those reasons constitute the "law" of the opinion. Dicta is usually something observed or opined as a side and, in a lot of cases, is referred to as "mere dictum" by the justice(s) who draft the opinion. Again, please ignore this opinion and do not lose ANY sleep over it.
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