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Posted: 5/28/2001 7:19:47 PM EST
I just bought what I was told was a pre-ban AR-15. I read through the forums and checked and my number is in the 28xxx range which is fine for a pre-ban. I also been reading that I know the lower is pre-ban. They can or cannot prove it was made into a full rifle. Since PWA is out of business is there any way to find out if it was assembled into a rifle before the ban? If I go looking for a letter and it says that it wasn't am I in trouble if I have the letter. Or should I say the hell with it and go have fun? Josh
Link Posted: 5/28/2001 7:32:04 PM EST
Set it up as a post-ban and have fun. All you lose is a bayonet lug and the flash hider. Both do nothing for 99.9% of users.
Link Posted: 5/28/2001 7:33:47 PM EST
[Last Edit: 5/28/2001 7:35:02 PM EST by Sukebe]
Don't pay any attention to these guys who say if you can't prove it then its not pre ban. I bought a PWA lower with Colt upper back in 91 at a gun show. No papers, didn't need them then and don't think you need them now. I can't prove that I owned it prior to the ban but I did. I've talked to ATF guys and they say the proof thing is an ATF opinion not law. I have to believe these guys that tell you that crap are either A) Trolls or B) Hoping that the fewer Pre Bans are out there the more theirs will be worth. The burden of proof in a criminal proceeding is on the prosecution. Innocent until proven guilty is a fundamental principle of American jurisprudence. Have your Pre Ban and Sleep well. BTW PWA only built lowers so the only way to prove it, is to find the original builder and get him to swear that it was a rifle. Even then some of these "experts" will tell you thats not enough
Link Posted: 5/28/2001 7:39:51 PM EST
One more thing. Prepare yourself for a deluge of B.S.
Link Posted: 5/28/2001 7:43:56 PM EST
The truck already showed up!
Link Posted: 5/28/2001 8:29:25 PM EST
Originally Posted By Atomic Punk: The truck already showed up!
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And you were driving it. Where's the rest of the "experts"?
Link Posted: 5/28/2001 9:28:30 PM EST
Don't pay any attention to these guys who say if you can't prove it then its not pre ban. I bought a PWA lower with Colt upper back in 91 at a gun show. No papers, didn't need them then and don't think you need them now. I can't prove that I owned it prior to the ban but I did. I've talked to ATF guys and they say the proof thing is an ATF opinion not law. I have to believe these guys that tell you that crap are either A) Trolls or B) Hoping that the fewer Pre Bans are out there the more theirs will be worth. The burden of proof in a criminal proceeding is on the prosecution. Innocent until proven guilty is a fundamental principle of American jurisprudence. Have your Pre Ban and Sleep well. BTW PWA only built lowers so the only way to prove it, is to find the original builder and get him to swear that it was a rifle. Even then some of these "experts" will tell you thats not enough
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I don't care what you want to believe Buck, you are wrong. Read the law, read the cases. Proving it is a preban is a defense, and thus the burden falls upon the defendant to prove. Just because it isn't often prosecuted does not mean the gov't cannot prosecute for it. They can. If you want to ignore the law, thats your decision, but do so with the full knowledge of what you're possibly getting yourself into..and don't mislead others with false statements and interpretations of law. Since you seem to believe you know more than the lawyers here, please cite me statute and cases to support your position, and explain to me how the interpretation of the exculpatory clauses in 18 USC 922(o) as affirmative defenses in U.S. v. Gonzales, 121 F.3d 928 (5th Cir. 1997), and U.S. v. Just, 74 F.3d 902 (8th Cir 1996) and the resultant burden of proof would not apply to the same type exculpatory clauses in 18 USC 922(v).
Link Posted: 5/28/2001 9:59:25 PM EST
By the way Uncle Buck, what are your credentials? If you don't think the lawyers here (aka the "experts") know what we're talking about when it comes to the law, and see fit to dismiss our opinions with little to no explanation, I'd sure like to know what your qualifications are? Are you Larry Tribe in disguise?
Link Posted: 5/29/2001 1:34:51 AM EST
Get some history on PWA did they ship parts or only complete weapons or both? If the only shipped complete weapons than your question has been answered. Read the cases? How many AW prosecutions have there been??
Link Posted: 5/29/2001 3:09:05 AM EST
[Last Edit: 5/29/2001 3:31:47 AM EST by Steve-in-VA]
Originally Posted By NO-AR-:(: Read the cases? How many AW prosecutions have there been??
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Like I've said before, I have been unable to find any in my circuit where the charge stood alone and not ancillary to some huge, multi-count federal indictment. HOWEVER, who cares? It's irrelevant in my opinion. If you want to roll the dice, go ahead. That is your choice, just don't use Vegas-like odds to try and justify possibly illegal activity. That is very short-sighted and, IMHO, ignorant behavior. The way the law is written, the government only has the burden of proving the weapon is an AW, you then, as a defense, can argue it was configured before the ban. CalypsoCowboy: This does not mean you should throw your hands up and consider the lower post-ban. Do some digging and find some indicia of evidence that the lower was configured before the ban. I'm sure you can find something. Uncle Buck: It sounds like you just don't like the way the law is written. No one does, however, don't kill the messengers. If you don't like it that's fine, but don't use your distaste of the law as an excuse to bash those who understand it. PS: For those interested in some specificity on this subject, check out this thread [url]http://www.ar15.com/forums/topic.html?id=20732[/url]
Link Posted: 5/29/2001 3:59:31 AM EST
Well sir, I was asking so that I could find out about prosecution, convictions, possible appeals that have been filed, and granted. Becasue If no-one can find a prosecution on AW by itself that may suggest that the Fed's are reluctant to felonize someone becuase of a pre-ban/post-ban issue. Of course once they get you in their sights, esp. if you are already a felon, the probably look at it as a way to keep/destroy the weapon and put that person on "ice". And no I'm not advocating putting pre- features on weapons that are clearly post-. I'm just wondering.
Link Posted: 5/29/2001 4:28:41 AM EST
[Last Edit: 5/29/2001 4:27:33 AM EST by Sukebe]
Originally Posted By shaggy: By the way Uncle Buck, what are your credentials? If you don't think the lawyers here (aka the "experts") know what we're talking about when it comes to the law, and see fit to dismiss our opinions with little to no explanation, I'd sure like to know what your qualifications are? Are you Larry Tribe in disguise?
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Credentials? On the internet? Get your head out of your ass. Half the reason some people log on is because they can be someone they're not. Now show me your credentials Einstein! Or is that Perry Mason?
Link Posted: 5/29/2001 4:36:22 AM EST
Read the cases? How many AW prosecutions have there been??
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I don't know of any - I think Steve in VA has seen some, albeit as 'add-ons' to other charges. The cases I spoke of are cases interpreting the burden of proof for the gov't in 18 USC 922(o) which has a similar structure and wording to 922(v). Point is, the courts will find the exculpatory clauses in 922(v) to be defenses that must be proved by the defense, just like the defenses in 922(o). Of course, just because they haven't been charging people under this section doesn't mean they can't. A change in policy or change in personnel may get them into prosecution mode and if I had a preban without documentation, I wouldn't want to be the test case.
Link Posted: 5/29/2001 5:01:13 AM EST
Credentials? On the internet? Get your head out of your ass. Half the reason some people log on is because they can be someone they're not. Now show me your credentials Einstein! Or is that Perry Mason?
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Well, I'm a lawyer and Steve in VA is a lawyer. There's probably a few more floating around here also. Of course if you don't want to believe it thats fine, but show me some statute or cases to support your position - something that will hold up in a court of law. You don't have to be a lawyer or a legal scholar to make your case, but so far you haven't. So answer my question from my prior post; explain to me how the interpretation of the exculpatory clauses in 18 USC 922(o) as affirmative defenses in U.S. v. Gonzales, 121 F.3d 928 (5th Cir. 1997), and U.S. v. Just, 74 F.3d 902 (8th Cir 1996) and the resultant burden of proof would not apply to the same type exculpatory clauses in 18 USC 922(v).
Link Posted: 5/29/2001 5:40:21 AM EST
I'm no expert and I'm no lawyer. I don't drive a truck either. I asked an agent at the BATF to research my question... "can someone put a pre-ban upper on a pre-ban stripped lower that he purchased after the AW law went in effect?" Well, he went to the U.S. Code, got the text of the law, asked several of his colleagues and legal experts, and their consensus was that it would be construed as a violation of the law by the fact that your assembly of the restricted parts constitutes a legally defined "Assault Weapon". That was good enough advice for me. Common sense tells me any biased interpretation by AR-15 enthusiasts would tend to favor some dubious grey area and would likely backfire against them.
Link Posted: 5/29/2001 7:45:45 AM EST
Originally Posted By NO-AR-:(: And no I'm not advocating putting pre- features on weapons that are clearly post-. I'm just wondering.
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I know you were not; my "roll the dice" comments were not directed towards you. Sorry if they seemed that way.
Link Posted: 5/29/2001 7:50:22 AM EST
[Last Edit: 5/29/2001 7:51:28 AM EST by Sukebe]
Originally Posted By CalypsoCowboy: I just bought what I was told was a pre-ban AR-15. I read through the forums and checked and my number is in the 28xxx range which is fine for a pre-ban. I also been reading that I know the lower is pre-ban. They can or cannot prove it was made into a full rifle. Since PWA is out of business is there any way to find out if it was assembled into a rifle before the ban? If I go looking for a letter and it says that it wasn't am I in trouble if I have the letter. Or should I say the hell with it and go have fun? Josh
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Thats not in question. in case you havn't read it here it is. Here is a possible scenario; A licensed manufacturer of firearms buys a stripped PWA lower in 1990. He sits on it and sells it in 92(on a 4473). Joe the buyer sits on it and sells it at a show in 93( no paperwork). Bob the buyer again sells it a flea market to some guy in a hat. Before the ban some guy in a hat builds it into a rifle from a complete upper he bought at a show and various parts that he's accumulated over time. its now August of 94 and the rifle is complete. Some guy in a hat has no proof that the rifle was built before the ban except his word. I defy anyone to find a federal prosecutor that will charge him with a violation because he can't prove that his 11 year old receiver wasn't a rifle before the ban. I can't believe you people!
Link Posted: 5/29/2001 8:13:38 AM EST
I defy anyone to find a federal prosecutor that will charge him with a violation because he can't prove that his 11 year old receiver wasn't a rifle before the ban. I can't believe you people!
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I never said I could find a prosecutor who would charge him on 922(v)alone. That doesn't however, mean a prosecutor couldn't charge him if they wanted to. They can. All a prosecutor has to prove is that the guy was in possession of the weapon and it had the features that make it an "assault weapon" as defined in 18 USC 921(a0(30). So the guy doesn't have proof - thats not the prosecutor's problem; thats the buyer's problem.
Link Posted: 5/29/2001 9:28:57 AM EST
Remember we kill the lawyers first
Link Posted: 5/29/2001 11:07:42 AM EST
Originally Posted By uncle buck: . . . I defy anyone to find a federal prosecutor that will charge him with a violation because he can't prove that his 11 year old receiver wasn't a rifle before the ban. I can't believe you people!
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Before your panties get even more twisted [;)], take a deep breath and re-read Shaggy and my replies. No one is saying there is a witch hunt for config violators, however, that does not change the possibility for prosecution, however slight, nor the way the law is written. Do what ever you want, but again, don't try and justify it based on odds and don't bash members for relaying a law that you apparently don't fully understand. David, Good one.
Link Posted: 5/29/2001 12:05:24 PM EST
They say ignorance is bliss.
Link Posted: 5/29/2001 5:18:06 PM EST
shaggy, how you been? Didn’t you go under the knife not to long ago? Hope all is well. Think I’m gonna watch this one from the side lines. [NI] [NI] [NI]
Link Posted: 5/29/2001 5:25:12 PM EST
Where the hell did you get that icon? Roger the Shrubber maybe?
Link Posted: 5/29/2001 5:30:12 PM EST
shaggy, how you been? Didn’t you go under the knife not to long ago? Hope all is well. Think I’m gonna watch this one from the side lines.
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Yeah, I got sliced wide open - 8" through the side and gut. All went well, but in about 2 weeks I've got to go back and get sliced open again. They say they need to do some more work, but I think the surgeon just dropped his Rolex in there and wants it back [:)]. If I wasn't all dopey on percoset all day, I'd think this was a real pain in the ass. [:P]
Link Posted: 5/29/2001 7:34:34 PM EST
You guys can argue this all day long. Why don't one of you who wants a definite answer drop a real letter to the BATF firearms division and see what Ed Owens replacement comes up with. That would end this bullshit thread once and for all. If it were me......The would only buy pre-bans that were made at least 2 years before the ban came out if I could not get documentation form either the seller or the manufacturer.
Link Posted: 5/29/2001 7:43:07 PM EST
shaggy, good luck with the surgery, and a speedy recovery. As I am beginning to understand this, the poorly written law has the capability to require everyone with a pre-ban to prove it was manufactured prior to the 94 law. Likewise, most owners could quickly state "I built(or purchased) this gun prior to the 94 law" and now the Feds must disprove the claim or dis-credit the person. If accused for breaking this law only, a owner should (hopefully?) win.
Link Posted: 5/29/2001 8:54:52 PM EST
Chaingun - Thanks man; I've been pretty sick (kidney disease, damage and sepsis) since last fall and came very close to getting fitted for a pine box, but it looks like things are finally starting to turn around. Hell, I gotta be ok, I ain't checking out if I still have ammo left to shoot. Clearfire - the best Ed Owens or anyone at BATF can give you is only an advisory opinion. Its not law, its only an insight into how an agency interprets the law at a particular point in time. They are, however, free to change their interpretation at any time. Additionally, the statute really is quite clear. If there was any question about how a court would interpret the elements of the offense, I think Gonzales and Just really seal it not only for 922(o), but 922(v).
Link Posted: 5/30/2001 2:05:37 AM EST
Originally Posted By ClearFire: Why don't one of you who wants a definite answer drop a real letter to the BATF firearms division and see what Ed Owens replacement comes up with. That would end this bullshit thread once and for all.
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I don't need Ed Owens to interpret a statute nor caselaw that is pretty unambiguous. I can do that myself. I find the Tech Branch to be very helpful in areas of policy or ambiguity where I need some insight or a fresh perspective. Don't need one here.
Link Posted: 5/30/2001 6:42:18 AM EST
Originally Posted By Atomic Punk: They say ignorance is bliss.
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And common sense ain't so common.
Link Posted: 5/30/2001 7:14:38 AM EST
shaggy, Surgery is the worst, I’d swear they ruff you up with a baseball bat just for effect. And don’t let them get chintzy with the dope, if you’re gonna let them cut you, might at well enjoy it. All kidding aside, take care, and god’s speed. I was prepared to write the ATF on this subject, but after the DSA muzzle brake scandal and watching the problems an acquaintance is having with his store/FFL, I really doubt the ATF can be trusted. Besides, as shaggy indicated, the ATF doesn’t have authority to rule on this sort of thing. [NI] Steve, I just found the “Knight who say NI” in this boards icon list, have know idea why it’s there, but it’s started me on the worst M.P. Holy Grail binge I’ve had in a while. RK
Link Posted: 5/30/2001 8:18:12 AM EST
"Who is this so versed in the ways of science?" Favorite line: "Strange women randomly distributing swords is no basis for a system of government; look, if I ran around saying I was king just because some watery tart loft me a septar, you'd say I was looooooney!"
Link Posted: 5/30/2001 8:24:00 AM EST
I wasn't pointing at any one person here on this thread. But now this seems appropriate: The wise man himself may know nothing, yet by asking the right question of the right person at the right time may acquire true knowledge. On the other hand, the ignorant man believes he alone is right. He asks of no one since they are not as wise or knowing as he, or else he fears their reply. He sees no reason to prove his beliefs, instead demanding that others prove their own theories to him and his critical review. It would seem to me that if one needed to how a law was being enforced one would ask those who enforce the law. If that person had to know how that law was being prosecuted he would ask the prosecutor. Asking persons untrained in either of these fields (like on an internet message board) to provide an answer adequate to change his stubborn beliefs is pure folly and the mark of the Ignoramus. The Ignoramus interprets all relevant material to his own satisfaction by his own reasoning and therefore is correct in his own mind. No one should argue that fact.
Link Posted: 5/30/2001 8:24:11 AM EST
One of my personal favorites: [i]I’m being repressed, I’m being repressed, come see the violence inherent in the system.[/i] I was going to stay out of this one, but like a month to the flame, here are a couple of my thoughts on the subject. In order to qualify as a grand-fathered AW the firearm in question would have to been assemble or grouped with enough parts to have been assembled on or before Sept 14, 1994. Now, just because an PREBAN AW is not documented does not make it illegal. I assume a court of law would determine that. The law was written with the intent to allow pre-existing assault weapons to remain legal and not make felons out of otherwise legal gun owners. In my 15 plus years in the firearm hobby, I’ve never had any of my firearms come under legal question, and don’t personally know anyone who has. As a law abiding and non-violent person I doubt it will ever happen. I suspect my chances of getting struck by lighting are better. In the unlikely event you’re charged with an illegal semi-assault weapon built on a “preban” receiver or other firearm, the prosecution has already shown the court there is reason to believe you’re in possession of and illegal firearm. The ball is now in your court (no pun intended), you will need provide some sort of defense. Now for some reason you land it court, and it happens to be a PWA serial number 28,XXX with no prior documentation, here’s what I would do. Find a good firearms attorney and follow his advice. Explain to the court when I purchased the rifle in question it was represented to me as being a legal semi-auto assault weapon. With my technical knowledge, I had no reason to believe it was anything else. The serial number of the weapon places it in the reasonable realm that it could have been assembled as an AW before the ban. And last, there is no reason to believe is was not. If I was in possession of the rifle before the ban, I would explain I owned the rifle before the ban, and it was configured as such. Will this get my ass off the line, nobody knows because it’s never happened. Maybe I’m a fool, ignorant, or just plain stupid, I think I’m just reasonable. I’m not going to lose any sleep over something that probably isn’t going to happen. I have enough real problems in life to worry about. If you’re uncomfortable about it, do what ever is right for you.
Link Posted: 5/30/2001 8:30:00 AM EST
Steve, When I noticed the Knights Icon a couple of days ago, I started a thread about it in the GD forum. The Knights who say Ni! Anyway there is a slug of quotes, even the whole “Book of Armorments” and the holy hand grenade part.
Link Posted: 5/30/2001 11:55:47 AM EST
Originally Posted By Atomic Punk: It would seem to me that if one needed to how a law was being enforced one would ask those who enforce the law. If that person had to know how that law was being prosecuted he would ask the prosecutor. Asking persons untrained in either of these fields (like on an internet message board) to provide an answer adequate to change his stubborn beliefs is pure folly and the mark of the Ignoramus.
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Very eloquent reply, however, did I miss something? I thought the gravaman of this discussion was the interpretation of a statute and who has a particular burden at trial, not whether prosecutions exist. BTW, I'm in court almost every day. Most of my a.m. replies are from the law library during breaks- I can answer the questions you argue should only be answered by prosecutors and LE. I have researched config prosecutions (with little results) and have been involved in multi-count federal indictments where such charges were added almost as an afterthought. In the end, my stance on this particular issue is the same: Who cares? Anyone who is guided by the likelihood of prosecution, or lack thereof, in his actions is, in my opinion, the "Ignoramus". My advice to the author of this thread is also the same: Don't give up and assume you are SOL, do a little digging and come up with some indicia of evidence that the config was complete before Sept 94- I'm sure you can come up with something.
Link Posted: 6/2/2001 10:54:46 AM EST
I am real big on studying this stuff. Many good points made. The lawyers here are interested in burden of proof. What about this, if the prosecution can prove that the rifle in question is indeed a assault rifle, but can not prove that it is not grand fathered it would indeed be in the best interest for the defence to prove that it was. If the defence is unable then would the defence not make the case that they are covered by reasonable doubt? Or how about a defence that if such a crime was committed that it was not doing "willfully". In short these are just defences and not something I would want to have to revert too. I do love to debate these fine points but we need to keep this in perspective. All cases so far have been mere tack ons with other charges as already pointed out. In addition the level of study that posters here have exhibited go way beyond what a judge or jury would ever attempt. In fact a typical juriest may not have the mental capacity required to grasp the subject. As a case in point the following I got off James Bardwell's site (he has given me permission in the past to copy this stuff to the boards). 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.
Link Posted: 6/2/2001 12:06:06 PM EST
Originally Posted By Ekie: . . . What about this, if the prosecution can prove that the rifle in question is indeed a assault rifle, but can not prove that it is not grand fathered it would indeed be in the best interest for the defence to prove that it was. If the defence is unable then would the defence not make the case that they are covered by reasonable doubt? Or how about a defence that if such a crime was committed that it was not doing "willfully". In short these are just defences and not something I would want to have to revert too.
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Good point. That's the essense of a criminal defense. Short of prevailing as a matter of law, you want to create enough reasonable doubt in the mind of the trier to enable a dismissal. So far as criminal intent, I believe the [i]mens rea[/i] component of this crime would simply be knowingly possessing the AW; ignorance of a config violation would never be a defense.
. . . In fact a typical juriest may not have the mental capacity required to grasp the subject.
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I learned a long, LONG time ago to never try and enter the mind of a juror before a trial- especially in a hypo. I always poll my juries (when allowed by the court) and you just never know what the hell they are thinking. Some focus on substance, some on the suits worn by the attornies or the language used and some just focus on nothing at all. Voir dire is a crap shoot based on nothing but educated guesses. Forensic experts used in cases to aid litigants pick a jury are, INHO, a waste of time. Again, so is chancing behavior based on odds that you won't get caught (turning broken record off).
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