legalese77: Interesting case and conflicting words from the Mayo court:

First

"Minimal burden placed on defendant relying on statutory exception does not impinge on constitutional rights, because Government ultimately bears burden of disproving applicability of the exception when it is properly presented. U.S.C.A. Const.Amends. 5, 14; 18 U.S.C.A. § 921(a)(3).


Then:

By its terms, firearms statute created affirmative defense in form of exception for "antique firearms," and defendant had burden of establishing applicability of exception. 18 U.S.C.A. §§ 921(a)(3, 16), 922; 26 U.S.C.A. §§ 5801 et seq., 5812, 5861(e); Omnibus Crime Control and Safe Streets Act of 1968, §§ 901 et seq., 901(a), 82 Stat. 225; Gun Control Act of 1968, § 101 et seq., 82 Stat. 1213."

I think a salient issue was that the transaction in Mayo involved the purchase of several modern weapons and the fact that no evidence was initially raised by the def that said firarms (including a British Sten Gun and Winchester Commerative) were antiques.  In an appeal the def made a technical arguement that the conviction must fail b/c the prosecution did not affirmatively establish that the weapons were notantiques.  I think the below pp by the Mayo Court further limits the precidential effect of this descision on the SAW bill.

Gun Control Act of 1968, § 101, Pub.L. No. 90-618, 82 Stat. 1213-14 (amending and adding to existing regulatory scheme). See United States v. Jones, 481 F.2d 653, 654-55 (2d Cir.1973); United States v. Reminga, 493 F.Supp. 1351, 1353 (W.D.Mich.1980) (firearms laws reflect accommodation of competing interests of law enforcement and legitimate private ownership of firearms). Congress was not constitutionally required to exempt antique firearms from the firearms laws. Congress did, however, provide a "gratuitous defense" to safeguard the rights of persons who deal in a narrow class of weapons. Cf. United States ex rel. Goddard v. Vaughn, 614 F.2d 929, 935 (3d Cir.) (voluntary intoxication affirmative defense to specific intent crime), cert. denied, 449 U.S. 844, 101 S.Ct. 127, 66 L.Ed.2d 53 (1980). In these circumstances, we will not thwart the primary thrust of the federal firearms laws and unduly stifle effective enforcement of those laws by requiring the government in all prosecutions under 18 U.S.C. § 922 to prove that the weapons involved were not antique firearms. While it would not be an impossible burden for the government to bear, a legitimate antique gun dealer or collector is certainly in a better position to place the exception in issue. Cf. United States v. Carr, 582 F.2d 242, 245 (2d Cir.1978). Both Mayo and McGarghan defended on the ground that they dealt only in antique weapons. Yet, neither offered a shred of evidence suggesting that the guns involved in the section 922 counts were antique firearms as defined in 18 U.S.C. § 921(a)(16) (1976). [FN9] The government produced sufficient evidence from which the jury could conclude that Mayo and McGarghan illegally dealt in firearms. [FN10]

I must admit I did not bother to track down the full text of the case...

Certainly there is a great deal of argument to be made that the Mayo case has limited, if any, applicability to the issue of whether the (v)(2) exception will be treated as an affirmative defense.

OTOH, the most disturbing discovery that I made in my brief search effort was that no case authoritatively (as far as I can tell) construes the effect of (v)(2) on BOP. Presumably then, this issue could still be decided in a way that would certainly make me frown.

Perhaps there is some general authority on statutory construction that says that language of general exception is not enough to shift the BOP to the Defendant...I haven't bothered checking.

I still have not checked the full text of Mayo but the presentation of the issues is a head-scratcher... I suppose one reading (based solely on the excerpt you have posted) is that the court is really saying:

...it's a little late now...maybe if you had given the prosecution a heads up you would have been entitled to insist on proof beyond a reasonable doubt...

I dunno about this...I suppose I should really take the time to hunt the case down...
This language, however, disturbs me:

we will not thwart the primary thrust of the federal firearms laws and unduly stifle effective enforcement of those laws by requiring the government in all prosecutions under 18 U.S.C. § 922 to prove that the weapons involved were not antique firearms. While it would not be an impossible burden for the government to bear, a legitimate antique gun dealer or collector is certainly in a better position to place the exception in issue

It's late at night so I'm not thinking too clearly but it seems to me that the same rationale could be extended to apply to (V)(2) in the form of "well it's too burdensome for prosecution to prove lack of lawful possession, the Defendant is in a much better position to raise and prove the issue of lawful possession"

Personally, I think that it's absolutely unfair to suggest that the BOP should be shifted b/c the way the law is written makes it too difficult to prosecute....I realize that my analysis gives somewhat short shrift to the issues involved, I don't think that it distorts the reality of the situation too greatly.

The questionable value of Mayo aside, I have seen a number of posts (countless) on this site referencing the idea that a possessor is required to prove lawful possession on the date of the enactment of 18 U.S.C. 922. I am still curious as to whether anyone has found anything authoritative on this point -(i.e. case law as the staute does not provide a clear intent to create an affirmative defense IMHO). I am also curious as to whether the AG has taken an official position on this issue- anyone? anyone? Ferris?

"Does anyone have a case to cite regarding the status of the grandfather exemption/defense?"

There has not been one.  We know of a case where the Government would not return property (UZI) because it felt that it would put the owner in a situation where they would be in violation of 18 USC section 922(v).  The court's decision was extremely odd:

www-2.cs.cmu.edu/afs/cs/user/wbardwel/public/nfalist/us_v_indelicato2.txt

legalese77:

Yeah, I think in plain terms the court reasoned they had a couple of turds who were using a technical defense which would have required not only the Court vacating their convictions but, potentially creating issues with all similar prosecutions/convictions where the US Atty did not disprove the antique exemption.  So, the Court came up with some inventive interpretations and limited their scope so as to have minimal effect (and be less likly to go to an appeal).  Unfortunately, this is just another decision in conection with firearms case law that is inconsitant with the law and decided against the interests of the gun owners.  But, thanks; it was an interesting case and advances our collective wisdom.

The Courts reasoning in United States of America v Michael Indelicato is even more confounding.  That Court inferred the
grandfather clause of 18 U.S.C. section 922(v)(2). to protect an individual only if he or she
"lawfully possessed" the weapon on September 13, 1994.  This interpretation is not adopted by anyone, including BATF. I'm sure the legislative packet would confirm that the legislature did not intend such a narrow interpretation of the AOW exemption.

BTW do you have a cite for the Secod Circut case you mentioned, I'd like to take a look.

PS: legalese77: I'll email you the MAYO case when I get home.

Edited to add Mayo.

thanks-

sadly this may be a non-issue if the AWB is tightened up in the future. I've heard discussion about the elimination of "gandfathering" altogether (rather than piecemeal obliteration through court decisions) and am pretty concerned about whether that will be accomplished or not.

Woaa... stand fast there buddy.  

I don't know what you've heard, but I think most people are betting/banking that the ban will actually sunset.  Notice the price of pre-bans dropped about 25% and their availability increasing.  Given the current pro-gun advances and climate in the legislature, I don't know where you find the rationale for reaching such a dismal forcast.  Hey even the Mass. sniper case failed to yield anti-gun hysteria calling for such action (the antis have been burned and attribute the republican victory in part to anti-gun positions held by the Dems).

Why so negative??

While it is my understanding that gun sales have actually been on the rise in recent times, it is also my understanding that the number of hunters has decreased and that could arguably result in a certain degree of diminished support.

Those folks with an anti-gun agenda seem to have been working overtime and the proliferation of misinformation and hysteria has been astounding. Even my father, an ordinarily rabid conservative and otherwise very thoughtful individual was totally uninformed regarding the "sniper" weapon used by Malvo/Mohammed.

I said hey dad, remember what weapon the sniper used? I have one the same make and model, check it out... and he said, no that's not it...didn't he use some hi-power bullet? wasn't it a such and such weapon? He was clueless. While you can be sure I educated him pronto, this little anecdote serves as a reminder that even thoughtful, intelligent people can be bamboozled by what they hear on the news when the topic of discussion is unfamiliar to them.

Hordes of people have been convinced that the AR is killing machine that uses particularly lethal, horrible bullets that explode and that it has supernatural accuracy at insanely long distance while still being simple enough and easy enough to obtain that you can expect eighth grade students to be proficient with one as well as obtain one and and that it serves no legitimate purpose whatsoever.

I hope I'm wrong, I really do.

Legalese77:  I sent you Mayo by email.

If anyone else wants a copy, email me but put AR15 or Mayo in the subject line so I don't erase you as spam.

I will put mayo in the text of the email not as an attachment so that there are no compatability or virus issues.

Robert

Quoted: Quoted: Specifically, are all named Colt AR-15's specifically exempt from the ban?   They aren't exempt from the ban, but lowers marked "Colt" and "AR-15" are regulated under a different portion of the law, and are banned by NAME instead of by features.  Thus, they are all automatically and permanently pre-ban, without having to worry about features. -Troy

Interesting.  So Colt has actually been prohibited from marking their rifles as "Colt AR-15" since '94?   Does that include LEO models?

I suppose that's where "Match Target" and "Sporter" come into play...

So any "Colt AR-15" I could encounter is pre-ban, regardless of its manufacture date?

Curioser and curiouser...

CJ

You said:  "So any "Colt AR-15" I could encounter is pre-ban, regardless of its manufacture date."

No, Absolutly not.  They are considered per se assault rifles, and thus you would not be required to show they were in a pre-ban configuration (ie bayo lug, tele-stock or flash hider) prior to 1994 to retain pre-ban status; because they were, by definition, assault weapons.  However the manufacture date still determines wethewr they are pre-ban or post ban.

I.e. a bushmaster manufacture b/f 1994 which had no evil features would not be considered grandfathered as an assault weapon like the Colt.  The practical ramification?  You need only establish that the Colt was manufactured before the ban, and not the additional requirement that it left the factory in a pre-ban configuration.

edited to elaborate.

Right.  Now it makes sense.

So a pre-ban "Colt AR-15" is immune to losing its AW status as a result of a configuration change, even if it's sold as a stripped lower receiver.

CJ

Quoted: Innocent untill proven guilty, beyond a resonable doubt. The burden of proof is on the enforcers. Lebrew

It used to be that way..... now it is guilty until proven innocent. hock.gif

cmjohnson: You said:

"So a pre-ban "Colt AR-15" is immune to losing its AW status as a result of a configuration change, even if it's sold as a stripped lower receiver."



Now that is the question.  there is some difference of opinion with respect to the status of preban stripped loweres retaining the status.

For further discussions see:

http://ar15.com/forums/topic.html?id=74364

http://ar15.com/forums/topic.html?id=92360&page=1

http://ar15.com/forums/topic.html?b=2&f=0&t=74364

Not sure this links are still good (after the change)

Quoted: there is some difference of opinion with respect to the status of preban stripped loweres retaining the status.

That is an understatement.

They are not "assault rifles". Assault rifles are select fire "machine guns".

A Colt AR15 manufactured before the cut-off date that marked as an AR15 is just one example of a "defined" assault weapon.

If I were to buy a Colt preban AR15 marked AR15 from the 6th owner of the rifle the only way I could defend myself in court would be to have the paperwork from the manufacturer that stated what configuration that model was in and how it was configured from the manufacturer.
I would also ned paperwork from each individual that owned that rifle to state it was always in a legal assault weapon configuration and that it was disassembled and sold as a lower.

There is no way that anyone can do this.
There is now way that anyone can prove what happened to this rifle when it was owned and sold by private parties.

If you get lucky you bought the rifle when it was brand new, you are the second buyer of the rifle and/or you are able to get documntation of the rifles complete history.

I say buy prebans that were made before 1990, making sure they were a legal "defined" assault weapon when they were originaly shipped from the manufacturer.

Or buy a preban Oly. What records.

Quoted: You said:  "So any "Colt AR-15" I could encounter is pre-ban, regardless of its manufacture date." No, Absolutly not.  They are considered per se assault rifles, and thus you would not be required to show they were in a pre-ban configuration (ie bayo lug, tele-stock or flash hider) prior to 1994 to retain pre-ban status; because they were, by definition, assault weapons.  However the manufacture date still determines wethewr they are pre-ban or post ban. I.e. a bushmaster manufacture b/f 1994 which had no evil features would not be considered grandfathered as an assault weapon like the Colt.  The practical ramification?  You need only establish that the Colt was manufactured before the ban, and not the additional requirement that it left the factory in a pre-ban configuration. edited to elaborate.

Quoted: They are not "assault rifles". Assault rifles are select fire "machine guns".

That highlights a problem within the written definitions of the laws.

"assault weapon" as defined for the AW ban in 18 USC 921,   says, and I quote:
--------------------------------------------------------------------

TITLE 18  > PART I > CHAPTER 44 > Sec. 921. Next

Sec. 921. - Definitions

(a)
.
.
.
(30)

The term ''semiautomatic assault weapon'' means -

(A)

any of the firearms, or copies or duplicates of the firearms in any caliber, known as -

(i)

(long list snipped for space)


and later...


(B)

a semiautomatic rifle that has an ability to accept a detachable magazine and has at least 2 of -

(i)

a folding or telescoping stock;

(ii)

a pistol grip that protrudes conspicuously beneath the action of the weapon;

(iii)

a bayonet mount;

(iv)

a flash suppressor or threaded barrel designed to accommodate a flash suppressor; and

(v)

a grenade launcher;



--------------------------------------------------------------------



However, this isn't the same definition of "assault weapon"  as is used in other parts of the law.


In addition, even the term 'firearm' has different meanings according to whom you ask and what legal definition you're reading.

For example, what's the BATF's definition of "firearm"?

Well, in 18 USC 921(a)(3), this is the definition:

-------------------------------------------------
The term ''firearm'' means

(A)

any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive;

(B)

the frame or receiver of any such weapon;

(C)

any firearm muffler or firearm silencer; or

(D)

any destructive device. Such term does not include an antique firearm.
-------------------------------------------------


I know that the BATF uses a different definition than the one above with regard to the term 'firearm', in some instances at least.  

Unfortunately, I wasn't able to get the ATF's web page to load so I couldn't post their definition, but I do remember that by their definitions, a machinegun is a firearm,  while a rifle is not.

It's this inconsistency in the definitions that is perhaps the most compelling evidence that the whole system needs to be rebuilt.

CJ

Quoted: Woaa... stand fast there buddy.   I don't know what you've heard, but I think most people are betting/banking that the ban will actually sunset.  Notice the price of pre-bans dropped about 25% and their availability increasing.  Given the current pro-gun advances and climate in the legislature, I don't know where you find the rationale for reaching such a dismal forcast.  Hey even the Mass. sniper case failed to yield anti-gun hysteria calling for such action (the antis have been burned and attribute the republican victory in part to anti-gun positions held by the Dems). Why so negative??

What he is referring to is while we think the ban will sunset, the gun-grabbers think and plan otherwise. And in recent weeks, they have come out with a statement in support of re-enactment, and with additional restrictions. One of those additional restrictions was NO GRANDFATHERING.

Well I certainly don't think we should get complacent.  But, not grandfathering all legally possessed AW's is no minor action; and would affect hundreds of thousands if not millions of aw (registered voters) owners and would constitute a taking of billions.  This is not some small group of esoteric/novelty gun collecers who would be affected.  

Even in Kalifornistan, they grandfathered AWs, and I would venture to state their gun views/laws are not main stream in this country.

Some food for thought...

The City of Rochester, NY passed an AW ban before the federal ban in which they named certain rifles as banned... such as Colt AR-15, but did not mention Bushmaster or any other manufacturer.  The liberal courts of NY threw the ban out because it provided for unequal protection under the law...  A person in possession of a Colt AR-15 would be a criminal, but someone in possession of a Bushy would not!

Wondering if the parallel argument could be made that by naming Colt as a grandfathered preban, and not another manufacturer of prebans such as an Essential Arms which ceased manufacture in 1993, provides unequal protection since the Colt owner need not prove that the rifle was not only manufactured as a rifle prior to the ban but also it has remained in that grandfathered configuration continually thus maintaining its status, whereas the owner of an Essential Arms would need to?

The problem with having to "prove" you had all the parts necessary to complete a rifle built on a preban lower before the ban was... before the ban it was not necessary to keep those receipts to prove anything!  I know I did not keep a receipt for the upper I purchased.  I did not keep the receipt for the lower either.

Any jury could understand that.

In 18 months, it will all be over, we will not be having these discussions.

And since some have claimed here that the rifle must remain in pre-ban status thoughout the nine years since the ban went into effect you'll also be required to prove that for every year of the ban the rifle remained intact. Somehow.

For every month of the ban the rifle remained intact.

For every week of the ban the rifle remained intact.

For every day of the ban the rifle remained intact.

For every hour of the ban the rifle remained intact.

For every minute of the ban the rifle remained intact.

For every single second of the ban the rifle remained intact.

You will need to produce an auditable trail of evidence proving that the rifle didn't have it's pistol grip, collapsible stock, and bayonet lug removed for one singe second of time during the entire nine years.

Having it locked in a safe and never once removing it for that time is not proof enough.

Some have stated that he rifle doesn't need to be kept assembled only to have the parts available. OK. Here's my stripped lower. The rest of the parts I own are kept in Bang Umjan, Kumphawapi Sub-district, Udon Thani District in Thailand - care to serve a warrant there?

How hard is it going to be to prove that a random collection of pistol grips, bayonet lugs and collapsible stocks were made on a date I claim?

-or-

If you've changed out the front sight, shoulder stock or pistol grip I sure hope that you documented the selling, trashing, or giving away of old parts following police procedures or can produce the originals. Maybe they need to go though an FFL and be serial numbered.

The legal rules of evidence are quite clear enough yet nobody has been willing to address this impossible requirement the ten or twenty times in the last five years this argument has come up.

Quoted: Innocent untill proven guilty, beyond a resonable doubt. The burden of proof is on the enforcers. Lebrew

Your the only one who understands the legal system, burden of proof is with the prosecution, always.

People read too many John Ross books. They act like there is a Special Pre Ban Gestapo Task Force that deal with preban guns.
You would never be arrested unless you had a Definite post ser.# and a definite AW in your possesion. Then and only then you would have to cast "reasonable doubt" not "beyond a shadow of doubt", which due to the Ser#, you would not be able to accomplish. A pre ser# gun would never make it to the courtroom.
GG