Posted: 9/15/2010 7:17:02 AM EDT
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I work for an FFL and I'm not sure of the legality of this situation.
The other day, a customer presented a nice 5 screw Smith and Wesson. Someone used a file to obscure the serial number. This was done in the classic tv mode of carelessly filing across the number so that the crime lab really could raise the number with acid. This gun was obviously made long before the 1968 GCA. To my knowledge, there is absolutely no federal requirement for this gun to have a serial number on it. I'm not sure about Florida law, so I'll ignore it here. The method of attacking the serial number suggests that it was done a long time ago, before it became well known that the number could be recovered. The metal showed signs of wear and oxidation in the area. I've seen plenty of defaced firearms in my time. They drill the serial numbers so they can't be recovered. I have no idea why they bother with this, but whatever. It looks like the number was defaced a long time ago. So, is this gun illegal? I'm not sure. The circumstances suggest that the number was defaced long before the 1968 GCA became law. While it is a misdemeanor to possess it, I can't tell if the gun should be legal due to legal status before that law passed. |
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So, is this gun illegal? Yes, at both the federal and state level. Your dealer should know this. When the number was put on the gun isn't relevant, only the fact that it was defaced. Federal Law: http://www.atf.gov/publications/download/p/atf-p-5300-4.pdf (k) It shall be unlawful for any person knowingly to transport, ship, or receive, in interstate or foreign commerce, any firearm which has had the importer's or manufacturer's serial number removed, obliterated, or altered, or to possess or receive any firearm which has had the importer's or manufacturer's serial number removed, obliterated, or altered and has, at any time, been shipped or transported in interstate or foreign commerce. State law: http://www.atf.gov/publications/download/p/atf-p-5300-5/atf-p-5300-5-florida.pdf 21-20.13. Sale of firearm with serial number defaced prohibited. It shall be unlawful to sell any firearm whose serial number has been altered, changed, disfigured or defaced. |
| That's the quandary. The federal law covers interstate commerce of the same, so they'd have to prove it was somehow involved in interstate commerce, and that the owner was aware of that. They didn't offer it for sale, and therefore did not violate the Florida law you cited. |
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That's the quandary. The federal law covers interstate commerce of the same, so they'd have to prove it was somehow involved in interstate commerce, and that the owner was aware of that. They didn't offer it for sale, and therefore did not violate the Florida law you cited. Its been ruled that if the gun CAN be sold over state lines, then it involves interstate commerce. Talk to the ATF or expect to lose your license. |
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That's the quandary. The federal law covers interstate commerce of the same, so they'd have to prove it was somehow involved in interstate commerce, and that the owner was aware of that. They didn't offer it for sale, and therefore did not violate the Florida law you cited. and has,
at any time, been shipped or transported in interstate or foreign commerce. So, S&W has a factory in Florida now? Have they ever had a factory in Florida? Seems to me that your FFL employer shouldn't even be contemplating doing anything with this defaced handgun other than notifying ATF and letting them handle it. Can you just imagine what would happen if ATF comes in and does an audit and finds this gun? The least your boss would have to worry about is losing his license. And how would this gun get logged into his bound book? "Pre-1968 S&W 5-screw revolver with obliterated serial number"? |
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That's the quandary. The federal law covers interstate commerce of the same, so they'd have to prove it was somehow involved in interstate commerce, and that the owner was aware of that. They didn't offer it for sale, and therefore did not violate the Florida law you cited. No, there is no need to "prove" anything regarding interstate commerce to be subject to the statute. |
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How is the gun logged in the gun log? When I worked at an FFL, they'd periodically do full audits, matching inventory to the gun log and then spot check the 4473s and compare the 4473s to printouts of the gun log.
The only write up we ever received while I was there was a warning. We had an old red steel box used to store powder. We stopped selling powder and used it for tools and random crap. Apparently, there's a rule or regulation that you can't store tools and crap in a powder box 
I bet they'd roast someone for what you've described. |
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That's the quandary. The federal law covers interstate commerce of the same, so they'd have to prove it was somehow involved in interstate commerce, and that the owner was aware of that. They didn't offer it for sale, and therefore did not violate the Florida law you cited. A Smith & Wesson in Florida. There's a clue about interstate commerce in there for you. |
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I'm really puzzled by the replies here. Did I ever suggest that we took the thing into inventory? No, I said it belonged to a customer. Some of you also seem not to understand the concept of an ex post facto law. There is no ex post facto law involved here. The firearm has a defaced serial number and your customer is in possession of the firearm. This is a violation of Federal law. It doesn't matter when the serial number was defaced. |
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I'm really puzzled by the replies here. Did I ever suggest that we took the thing into inventory? No, I said it belonged to a customer. Some of you also seem not to understand the concept of an ex post facto law. Not an issue. Ex post facto would be an issue is a law passed in 2010 criminalized something you did in 2009. But possession is continuing. If possession was criminalized today, for a weapon you already owned and still owned, there would be no ex post facto constitutional issue if you did not dispose of it. If you disposed of it yesterday, then of course you could not be prosecuted for it. |
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I'm really puzzled by the replies here. Did I ever suggest that we took the thing into inventory? No, I said it belonged to a customer. Some of you also seem not to understand the concept of an ex post facto law. Not an issue. Ex post facto would be an issue is a law passed in 2010 criminalized something you did in 2009. But possession is continuing. If possession was criminalized today, for a weapon you already owned and still owned, there would be no ex post facto constitutional issue if you did not dispose of it. If you disposed of it yesterday, then of course you could not be prosecuted for it. The problem here is that I can't find a definitive definition of ex post facto from a Supreme Court case. Many federal and state laws in fact do make an exception for continuing possession of items that were legal before a ban was enacted. The federal assault weapons law allowed all previously legal guns. The NFA allowed all owners to register their guns. Even the New Jersey A/W law included a mechanism under which owners of guns that were legal before the ban could obtain a permit and keep them. What I have found are definitions that specifically say that a thing that was legal before a ban can not be made to inflict criminal penalty after the ban, but no sources are cited. |
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I'm really puzzled by the replies here. Did I ever suggest that we took the thing into inventory? No, I said it belonged to a customer. Some of you also seem not to understand the concept of an ex post facto law. Not an issue. Ex post facto would be an issue is a law passed in 2010 criminalized something you did in 2009. But possession is continuing. If possession was criminalized today, for a weapon you already owned and still owned, there would be no ex post facto constitutional issue if you did not dispose of it. If you disposed of it yesterday, then of course you could not be prosecuted for it. The problem here is that I can't find a definitive definition of ex post facto from a Supreme Court case. Many federal and state laws in fact do make an exception for continuing possession of items that were legal before a ban was enacted. The federal assault weapons law allowed all previously legal guns. The NFA allowed all owners to register their guns. Even the New Jersey A/W law included a mechanism under which owners of guns that were legal before the ban could obtain a permit and keep them. What I have found are definitions that specifically say that a thing that was legal before a ban can not be made to inflict criminal penalty after the ban, but no sources are cited. If you want a definition, check Art. I of the Constitution. A law outlawing possession of something that was once lawful to possess is not an ex post facto law. An ex post facto law criminalizes an act that was lawful when performed. The concept is that a person should have notice and the opportunity to conform their conduct to the law. Possession is an ongoing act. The law does not criminalize the prior behavior, only the subsequent ownership. So, a law which says, "it is no longer legal to own XYZ" is okay. However, a law which says "if you have ever owned XYZ, you are guilty of a felony" is not okay. |
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That's the quandary. The federal law covers interstate commerce of the same, so they'd have to prove it was somehow involved in interstate commerce, and that the owner was aware of that. They didn't offer it for sale, and therefore did not violate the Florida law you cited. Was the gun made in Florida? If not, then interstate commerce comes into play. That is one area the feds will review when seeking prosecution for federal firearm violations. They want the weapon to have crossed state lines, in a clear manner. They will avoid weapons that have never left the state of manufacture. |
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Ex post facto doesn't apply.
The fact that the gun has a serial number, and that it was defaced, has nothing to do with the fact that pre-1968 guns weren't required to have serial numbers. If it has a number, and it's defaced, then it's an illegal gun. Just because no law required it to have a number at time of manufacture is irrelevant. |