How the hell would you do this?  Does anyone know what the requirements are to prove to the ATF that you stripped lower was assembled into a complete gun prior to the ban?

Has anyone inquired to the ATF on this?  Any info is appreciated.

Call the manufacturer and have them check the serial #.  Some manufacturers will issue a letter stating that your lower/rifle is pre-ban.

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

Actually, is that true?  Isn't the pre-94 existence is an affirmative defense which must be proven by the defendant?

while you're at it, prove your magazine is a legit pre-ban magazine.

Quoted: On the other hand, many lowers left manufacturers stripped or otherwise incomplete, and some manufacturers (Essential Arms, PWA, Sendra, and others) never made ANY complete factory guns.  In the case of any of these, you'd need some kind of documentation, UNLESS you owned the rifle in question on the date of the ban (9/13/94), which would give you legal standing to testify to the rifle's configuration on that date. -Troy

This is what I was wondering about. I wonder what kind of "documentation" would you need?  Say you bought a pre-ban gun that was originally sold as a stripped lower and it came with NO documentation that it was assembled into a complete gun prior to the ban.  How would you prove it was configured/complete prior to the ban?  Say you weren't the owner of this prior to the ban.  

Do you think they would ever try to prosecute for it if you had it in pre-ban config without any docs saying it was completed prior to the ban?  All you could get is the manufacturer to say it was sold as stripped lower prior to the ban.

Phil_A_Steen, I agree with you and that is my original thought but I thought somewhere I heard that the burden of proof is on the owner of the gun to prove this.  Wouldn't be the first time a law contradicted another.  

Quoted: Some rifles are easy to document.  For example, Colt only sold complete rifles

are you talking pre-ban?  Colt told me they sold receiver-buttstock sets (post-ban).

Quoted: In the case of any of these, you'd need some kind of documentation, UNLESS you owned the rifle in question on the date of the ban (9/13/94), which would give you legal standing to testify to the rifle's configuration on that date.

FYI, the ATF site refers to "on or before", not just exactly on that date.

Quoted: Note that the law for MAGAZINES is VERY DIFFERENT.  The law *specifically* assumes that unmarked mags, or mags without "Restricted..." warnings or post-ban dates, to be legal pre-bans.  And, it puts the burden for proving otherwise on the prosecution.   -Troy

does it say that?  or does it just say that the government has the burden of proof?

So what about all those PWA lowers out there?  Do people just not care about the law?

Bushmaster not only verified by phone for me in about 5 minutes, but they also sent me a letter stating to the pre-ban status of my rifles.

I don't know about other companies...other than Olympic Arms, which had a fire destroy many of their records, making verification difficult at best.

Someone correct me if I'm wrong, but I've personally visited Oly's facility outside of Olympia WA and that appeared to be the case.

And then there's Olympic Arms, who had a fire that destroyed all their records.  I guess, strictly speaking, there is no way to prove after the fact that an Oly receiver was assembled into a complete weapon before the ban.  The implications are onerous.

Quoted: That's correct.  It appears that SOMEONE understands our legal system...

I knew my three years at Michigan Law would pay off some day!  Woohoo!

Thank you everyone.  Troy, that is exactly what I thought.  

The reason I ask is because I have some post ban lowers and want to config them prior to another possible ban.  I would like to have documentation that they are in the post ban config so that if the law becomes more restrictive, I have documentation.  Maybe the local police would check it out and sign a letter in front of a notary.  Just a thought.

What do you guys think of that?  Would a notarized letter from my attorney hold up?  I wonder.  

I lucked out on my Oly preban. The guy I bought it from had a letter from the FFL dealer that sold it to him stating it was built by him prior to the ban. It has a copy of the dealers FFL on the letter. I may not ever need it, but I have it if I do.
Ed

Sorry guys, but I have to disagree.  This issue was pretty well hashed out in an earlier thread.  Having a pre-ban is not an affirmative defense, it is an exemption to the law.  Affirmative defenses are rarly used legal mechanisms wherein an individual admits to the elements of a crime but cites a specific defense under law to avoid guilt.  i.e. severe emotional disress, insanity, involuntary intoxication etc.  

I think the specific language of the statute states something like "shall not apply" which is exemptive laguage.  

Two things:  1. You should much prefer an exemption as opposed to an affirmative defence which generally requires a prosecution, 2. the practical ramifications might require that you explain your "exemption" to an investigative or prosecutorial agency much like an affirmative defence, but not in a court room.  Most significant: unlike an affirmative defence you do not have to admit to all the elements of a crime and then attempt to convice a jury of a statutorily allowed "affrimative defense."

If you read the actual section it specifically indicates that the law does not apply to those owning a pre-1994 AW i.e. an exemption.

"(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 (Emphasis added)."

I'm not sure but I believe a link to a thread covering this issue is here, but my search function and ability to bring up old threads appears comprmised lately.

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



Edited to highlight the paragraph

yeah, that's better than the version I found and considered.
It used TWO "not"s......while your version uses ONE "not".

www.atf.treas.gov/firearms/legal/semi.htm

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

A couple other aspects of this topic interest me.  One is the "taking of property" or "making existing property illegal" aspect (to use laymans language).

The other is "what is proof?".  Testifying is not proof.  Besides, it may not be advisable to testify at all, depending on the circumstances.

If proof is required, the day after the ban was enacted, thousands of Americans were automatically and unknowingly engaged in illegal behavior, the vast majority with no way to prove innocence.

No taking of property without due process of law.  The Govt can but rarly makes current property illegal.  The laws usually are prospective.  But and its a big but, they can and have done so with firarms.

The burden to prove guilt is upon the prosecution.  If the govt charges you with a violation of the AW bill they must prove all elements of the crime and that your lawfull exemption does not apply.  Of note I have not been able to locate a case where ther has been any prosecution of a rifle which existed b/f 1994 (pre-ban) which was altered or changed.

I understand that as a practical matter, most investigative agencies look only to the date of manufacture and then cease further activity.  This does not mean that you can rely on this or that if the investigative agency has proof that a weapon does not conform with the exemption (i.e. taken out of configuration) that they could initiate an arrest and prosecution.

Finally FWIW as a retired LEO executive, I understand this is an extremely low priority and most likely only implemented when its dumped in an agency's lap (ie a complaint) or in extreme cases where the LEOs need something on a real BG but have nothing better or wish to delay the real charge.  IE like the sniper case, they initially chargrd him with purchasing a rifle during the pendency of an active restraining order (fed viol), not the heavy charges.

If there's no paper trail on the gun since before the ban, you could always say you had it before the ban and had it in SAW configuration.  You could also get the person you buy it from to write a letter saying it was in SAW configuration.  A lower made before the ban is still going to be a potentially embarassing case for the ATF.  I just don't see them going after to you on that.  Now if the lower was obviously made after the ban, look out.

I had notarized statements and photos made a few months before the ban.

The Notary thought I was nuts.

Excerpt from a letter to Bushmaster and the reply:

I wrote -

Lastly, can you provide me with an accurate date of manufacture for my rifle?
I believe I checked it once, but, I'd  like to confirm. SERIAL#L000XXX.
If I remember correctly, it was just before the ban went into effect, like August 26, 1994, if that helps you.

Bushmaster wrote back -

The manuf. date of number L000XXX is 7/25/94, it is a pre ban.

Not only is my Dissipator PRE-ban, it has a VERY LOW 3-digit serial # on the lower receiver!
That doesn't mean anything special, BUT,  it IS a low # !

Works for ME!

So after reading this thread,
The prosecution only has to accuse, and then we must prove our innocence?
In this instance we are presumed guilty?
Somehow that doesn't jive with me.
Lebrew

Doesn't anybody keep their original receipt to pass on with the rifle?

When I short barreled mine, ATF asked me the status of mine, I faxed them the original store receipt, the 4473, and asked them : "what was an "AW" ban on the date of my papers". I won.... Form-1 approved with no restrictions.

lebrew:

Yes, according to our constitution, you are innocent until proven guilty.  If the govt charges you with a violation of the AW bill they must prove all elements of the crime and among these elements is thr fsct that your AW does NOT fall within a legal exemption, ie the govt must prove that your exemption does not apply.  This prove your innocence stuff here and reference to affirmative defenses is off the mark.

Affirmative defenses are for that rare occaision when someone admits to all the elements of a crime, but asserts a defense, which, if found to be credible, will negate criminal or civil liability, even if it is proven that the defendant committed the alleged acts. Self-defense, insanity, and necessity are some examples of affirmative defenses. If you are interested in researching this principle you can start here: Beach v. Ocwen Fed. Bank, 523 U.S. 410 (1998).

I don't believe a jury is going to prosecute you when you are willing to testify that the gun was a complete rifle before such and such date... the state is standing on air in such a case ... with no evidence possible to counter your claim...

Prove your preban was complete prior to the ban.

It's a Colt.

Well you guys are talking about pre or post ban
legal or not; I remember Oneshots outcome just for having an ar15 he had the gun confiscated(stolen), and they tried there best to railroad
him into prison regardless. and I think if iam
correct the dumbass detective was the one on MSNBC showing of his son's ar15, Now he bought his son an ar15 then try to railroad one of are member's into prison for having the same dam thing is really screwed up! but regardless after this dumb bullshit with the sniper and the showing of ar's on the news means there will be alot of trouble's ahead for anyone possessing one of these baby killing machines.
for one I think pre\post is not going to matter
your seen in public with one watch out!!!

If you have a computer and a scanner or printer you can make ..I mean copy your recipt when you bought the rifle before the ban ..hint..hint.
         Later,FREE

Quoted: Prove your preban was complete prior to the ban. It's a Colt.

Damn straight!

I never will regret the day i bought that genuine Colt AR-15 SP1. no fakes for me. THat extra few bucks might save me alot of headaches should i ever have to prove it's status.

I have never had a problem with any of my Colt products, EVER.

Too bad I was 18 in 1994 and still living with my parents, who refused to let me buy a BB gun.

Guess us young'uns are pretty screwed, I can't ever testify that "I know this gun was in such and such condition before the ban."

It gets worse with imported rifles.  When Bush's ban hit in 1989 I was still in junior high school.

Troy:

I am certainly not attempting to step on your toes.  You are one of the real resources in this forum and an asset to its collective brain trust.

FWIW I believe your statements are close, the only real issue I have is arrest v prosecution.  An agent may arrest you based upon their reasonable belief that probable cause exists to believe the weapon at issue is in an AW configuration and as a practical matter if you show that agent your proof that the weapon is a preban he or she is unlikely to proceed further.  

However, my issue is only that the prosecution in this country has the burden of proof, beyond a reasonable doubt (a very high standadrd) of all elements of a particular crime.  If there are exemptions (as herein) written into the law, then the prosecution must prove they do not apply.  (I worked in a DA's office for four years and I assure you in an AW prosecution the people would have the maker's agent or weapons expert testify that the weapon possessed was manufactured after 1994.)  This stuff about affirmativre defenses just doesn't apply.  I would find it odd if any practicing crim atty disagrees with my analysis or position.  

I address this issue, not as a high brow, but rather as an enthusiast like yourself.  I only wish to present information in opposition to the notion that suggests that any owner of a legal pre-ban is by virtue of that ownership subject to prosecution and thus bearing the burden, during trial of proving that the weapon was legal.  You are not violating the law because there is a specific written exemption protecting you.

BTW in a case cited here a while back, a judge interpreted the law as only to protect the owner if they were personally in possession of the weapon on or b/f 1994.  An interpretation which would basically criminalize the sale to another of any pre-ban.  An interpretation inconsistant with the most restrictive view and ATF guidelines as well.  Hey, go figure.  

The exception in 18 USC section 922(v)(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

Note it has no requirement regarding what configuration it is in during transfers conducted after 09-13-94. There are also no requirements that in the case of a AR that it be oiled only with CLP, that you must have a note from you mother in the butt trap saying that this rifle is really, really a pre-ban, that USGI mags are to only be used, or that the receivers are to be kept waxed, or the butt stock rubbed down in oil periodically to eliminate that styro look, or in the case of a AK that it be constructed of certain parts that are not imported. The only requirement is that it was lawfully possessed on 09-13-94. Any other requirements are fantasy, but most lack imagination, and are quite boring, as is this one.  Why not something more interesting like say a pre-ban is no good anymore if you shoot a pig with it on a Saturday?

I just bought a pre-ban Oly Arms - the FFL auctioning it was selling it for his brother, a chief of police for a small texas town.  I asked for and am getting a letter from the owner, hopefully on police dept. letterhead, saying it IS pre-ban, he owned it before 1994, and it was built in its current configuration.

Hopefully that covers my ass, as I plan on turning it into a suppressed weapon :)

Guess us young'uns are pretty screwed, I can't ever testify that "I know this gun was in such and such condition before the ban."

Yes, you can. Colt only sold COMPLETE AR-15's. They never sold lowers. Therefore, if the serial number says it was made before the ban, then you automatically know that it is a pre-ban rifle and was completely configured as such before the ban. That's why I am willing to pay more for a pre-ban Colt than other brands, just because it is the easiest to verify.

If you are accused of violating the law your AR will be taken away and held for evidence.A lawyers time is money out of your bank account.If it's a Colt or Bushmaster,a simple phone call or fax to the DA will get it released. If you have to go to court to prove it's legal,be prepared to spend several thousand $.

Quoted: So after reading this thread, The prosecution only has to accuse, and then we must prove our innocence? In this instance we are presumed guilty? Somehow that doesn't jive with me. Lebrew

Thats because these morons beleive everything in "unintended con." is the law and bible. My bushie is L05984X. Tell me its post, nope. Prove its not a SAW, you cant.
GG

An example of an affirmative defense with regards to pre-ban or post-ban is to be insane or incompentent to stand trail. An over-broad definition of affirmative defense would be documents produced in discovery, interogatories, or anything that a defense submits to support their case. One would be naive to think that a defense just sits there and does not put on their case. I believe that any statement saying that burden of proof of pre-ban status is upon the defense is simply inaccurate and stretches any broad interpretation of "affirmative defense".

It looks to me like the issue is not settled here on AR15.com.  

If you say your rifle is legal, it looks like you should not be also using an "affirmative defense".


A quick google search gave me this definition:

courtofappeals.mijud.net/Digest/newHTML/20920221.htm

"Criminal Defenses - Affirmative Defenses - Definition

An affirmative defense is one which admits the doing of the act charged, but seeks to justify, excuse or mitigate it; it does not negate selected elements or facts of the crime."

radio44:

I believe you are absolutly correct, affirmative defense does not apply.  

Because there is a specific exemption written into the law, you do not have to admit to all elements of the crime - Because you are specifically exempt ab initio (from the begining).  

Kind of like CCW you do not have to plead guilty to illegally carrying a weapon and then prove affirmatively that you are licensed or otherwise authorized.  Why? because criminal stautes exempt lawfull carring (leos or licensesd individuals) from the reach of the criminal law.

Hope this helps.

Im curious Troy, if the ATF has these records, why wouldnt it be possible to ask them, to do a check on a questionable rifle?that way you can insure its a pre ban? this should'nt be a problem, if they had such a database right??
          FREE

Quoted: And when ATF tracks down the shipment records from the gun company, and finds the 4473 trail that shows the rifle was transferred to someone other than you AFTER the ban, what then? The point is: ATF isn't (always) stupid. -Troy

Quoted: Im curious Troy, if the ATF has these records, why wouldnt it be possible to ask them, to do a check on a questionable rifle?that way you can insure its a pre ban? this should'nt be a problem, if they had such a database right??           FREE Quoted: And when ATF tracks down the shipment records from the gun company, and finds the 4473 trail that shows the rifle was transferred to someone other than you AFTER the ban, what then? The point is: ATF isn't (always) stupid. -Troy

I think everyone is a bit paranoid that the ATF might come calling in the middle of the night to confiscate that illegal pre ban :)

a few interesting comments I htought I would address

(prosecutors don't like to look stupid or waste a judge's time).

sometimes I really wonder about this

Testifying is not proof.

eh? testimony is one of the main forms of proof in countless numbers of trials both criminal and civil. I take serious issue with this statement. Ex: I buy a lower only in 1992- no government record can disclose that it was in SAW config and legally possessed in '94. So I walk? So I go to jail? I think the court would look to any statement that could shed light on the status of this piece during the relevant time. Testimony, of course, is not iron clad but it sure sounds like proof to me.

One would be naive to think that a defense just sits there and does not put on their case. I believe that any statement saying that burden of proof of pre-ban status is upon the defense is simply inaccurate and stretches any broad interpretation of "affirmative defense".

If a person were being prosecuted for a violation and the "grandfathering" is truly an exemption and not an affirmative defense, it would be a ridiculous waste of time and money to put on a defense if the prosecution has failed to prove an element. I believe (although may be mistaken) that a motion to dismiss (in a bench trial) or a directed verdict motion (in a jury trial) would be the appropriate course of action at the close of the prosecution's case. Now if the judge denies your motion for any reason, you had best put on any defense you may have and make a good record in the event appeal is necessary. There is no need to lend an air of legitimacy prosecution's case by defending (and burning money) if you can defeat the prosecution at the close of its case.

"Affirmative defense" doesn't mean that you actively defend a case. It is a phrase which denotes a shifting of the Burden of proof. ordinarily the prosecution has the BOP and the standard is "beyond a reasonable doubt," at least in criminal cases. Making an element an affirmative defense relieves the prosecution of its burden to prove its (the element's) existence or non-existence and forces the defense to prove its existence or non-existence, often by a preponderance of the evidence. As you can see, this makes the prosecution's job MUCH easier and makes the defense job somewhat more difficult. Affirmative defense, therefore, is not an active defense of the charg (as opposed to doing absolutely nothing) it is a concept which has a great deal of legal significance beyond even that what is discussed here. (ex: at least in the IL State court system an affirmative defense must be raised in pleadings in order to raise it or proof of it at trial).

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

Quoted: How the hell would you do this?  Does anyone know what the requirements are to prove to the ATF that you stripped lower was assembled into a complete gun prior to the ban? Has anyone inquired to the ATF on this?  Any info is appreciated.

You cant, you dont have to, and the burden of proof is on the prosecution. No matter how many times you read Unintended consequences,You dont have to prove nana. Prove to me that L062876 is a post ban weapon, You cant.
GG
GG

I have not found a case specifically on point w/regards to this issue... I have, however, found a case that provides an indicator of how other courts may interpret the language of 922 quoted here:

(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. (3) Paragraph (1) shall not apply to-- (A) any of the firearms, or replicas or duplicates of the firearms, specified in Appendix A to this section, as such firearms were manufactured on October 1, 1993; (B) any firearm that-- (i) is manually operated by bolt, pump, lever, or slide action; (ii) has been rendered permanently inoperable; or (iii) is an antique firearm;

I agree w/ Robertesq's reading that the language appears to create an exemption rather than an affirmative defense as the language "it shall be an affirmative defense" is notably absent.

However, the exemption language in 18 U.S.C 922(v)(2) is similar ("shall not apply to") the language found in 922 (v)(3)(B)(iii). This language has been interpreted in the Second Circuit to create an affirmative defense...it is therefore quite likely that any 2nd Cir. Court would follow that rationale in deciding whether or not the (v)(2) exception is an exception or an affirmative defense...

Because the case deals with a different sub-section (Although clearly with identical language and both being w/in sub-par.(v)) the lower courts in that circuit may not be bound (arguably) to follow that decision in interpreting (V)(2). In all likelihood they would probably follow it, however, in order to avoid inconsistent construction although one can never tell.

This also gives us no guidance as to what other courts may do in their interpretation. Unfortunately, this decision isn't good, particularly if you live in the 2nd Cir. b/c it arguably paves the way for forcing the possessor of a SAW to prove legal possession of the SAW when the ban was enacted rather than forcing the prosecution to prove a lack of such possession...below is a headnote and case cite for reference:

By its terms...this title created affirmative defense in form of exception for "antique firearms," and defendant had burden of establishing applicability of exception. U.S. v. Mayo, C.A.2 (Vt.) 1983, 705 F.2d 62.

True, the only problem you would have about, proving  the preban status, is if it was involved in a crime IMO.
           FREE

Quoted: Quoted: Im curious Troy, if the ATF has these records, why wouldnt it be possible to ask them, to do a check on a questionable rifle?that way you can insure its a pre ban? this should'nt be a problem, if they had such a database right??           FREE Quoted: And when ATF tracks down the shipment records from the gun company, and finds the 4473 trail that shows the rifle was transferred to someone other than you AFTER the ban, what then? The point is: ATF isn't (always) stupid. -Troy I think everyone is a bit paranoid that the ATF might come calling in the middle of the night to confiscate that illegal pre ban :)

For $25 Armalite / Eagle Arms will do a record search and provide a letter certifying pre-ban status.

Here's a question for any of you regarding Colt AR-15's and pre/post ban status:


Specifically, are all named Colt AR-15's specifically exempt from the ban?  

I'm asking because I just don't know, though in general I would consider myself to be rather knowledgeable about the AW ban.  It's just that I've never paid much attention to the exempted
list and how it applies.

CJ

I still have the original boxes with the prebbies' specs on them.